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1978 DIGILAW 348 (KER)

M. M. LAWRANCE v. STATE OF KERALA

1978-12-22

T.CHANDRASEKHARA MENON, V.P.GOPALAN NAMBIYAR

body1978
Judgment :- 1. The validity of the Ordinance 27 of 1978 published in the Gazette dated 15th November, 1978 (copy Ext. P4) has been challenged in this writ petition. It is to be deemed to have come into force on the first day of November, 1978. S.2 of the Ordinance states: "Extension of term of office of Mayor, Deputy Mayor, councillors, etc., of the Corporation of the City of Cochin-Notwithstanding anything contained in the Kerala Municipal Corporations Act, 1960 (30 of 1961) (hereinafter referred to as the said Act), the term of office of the Mayor, the Deputy Mayor and other councillors and the members and chairmen of standing committees of the Corporation of the City of Cochin, constituted under the said Act, which expires on the 1st day of November, 1978, shall extend upto noon on the 1st day of June, 1979". S. 3 effects certain modifications to the Kerala Municipal Corporations Act, 1961. According to these modifications the Government shall cause the elections to be held to the council so that the newly elected councillors may enter upon office on the 1st day of June 1979; the term of office of the newly elected councillors shall expire at noon on the 1st day of June, 1984; the election of the Mayor and the Deputy Mayor shall be held at the first meeting of the council after the 1st day of June, 1979; and the election of the chairman of each standing committee shall be held at the first meeting of such committee after the election of the Mayor. It was also provided that no election of the Mayor or the Deputy Mayor shall be held at the first meeting of the council after the 1st day of November, 1978, as required by S.28 of the Kerala Municipal Corporations Act (Act 30 of 1961), as amended from time to time. 2. The result and the purpose of the above Ordinance, in short, has been, the postponement of the election of the Mayor and the Deputy Mayor and the Standing Committees which had been extended from time to time, and finally fixed by Ext. P2 notice dated 6th November, 1978 to be held on 16th November, 1978 at 2 P.M. S.4 of the Kerala Municipal Corporations Act, 1961 enumerates the authorities charged with carrying out the provisions of the Act. P2 notice dated 6th November, 1978 to be held on 16th November, 1978 at 2 P.M. S.4 of the Kerala Municipal Corporations Act, 1961 enumerates the authorities charged with carrying out the provisions of the Act. These are (a) a council, (b) standing committees of the council and (c) a commissioner. S.5 provides for the Constitution of the council; S.6, of the Standing Committees; S 18 provides that each standing committee shall consist of five members elected by the council from among its own members. Under clause (2) of the said section, a councillor elected to be a member of a standing committee shall hold office for one year unless he sooner resigns the same, or his term of office as councillor is in any manner determined earlier. Sub clause (4) of the said section was added by the Amendment in 1972 to the effect that when a notification extending the term of office of councillors, is issued under the proviso to sub-s. (1) of S.67, the Government may by notification in the Gazette, extend the term of office of councillors so extended. S.28 provides: "28. Election of Mayor, Deputy Mayor and Chairman: (1) The council shall at its first meeting after the ordinary elections and at the first meeting in the corresponding month in each succeeding year elect (a) one councillor to be the Mayor, and (b) another councillor to be its Deputy Mayor. (2) A Deputy Mayor on being elected Mayor shall cease to be the Deputy Mayor. (3) Each standing committee shall at its first meeting after the election referred to in clause (a) of sub-section (1) elect one of its members (other than the Mayor) to be its Chairman". S. 29 provides: "29. Term of office of Mayor, Deputy Mayor and Chairman (1) The Mayor, Deputy Mayor or Chairman shall be entitled to hold office from the time of his election and until the election of his successor, provided that in the meantime he does not cease to be a councillor. (2) On the occurrence of any vacancy in the office of Mayor. Deputy Mayor or Chairman, the council or standing committee, as the case may be, shall at its next meeting elect a successor, who shall be entitled to hold office so long as the person in whose place he is elected would have been entitled to hold it if the vacancy had not occurred. Deputy Mayor or Chairman, the council or standing committee, as the case may be, shall at its next meeting elect a successor, who shall be entitled to hold office so long as the person in whose place he is elected would have been entitled to hold it if the vacancy had not occurred. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), when a notification extending the term of office of councillors is issued under the proviso to sub-section (1) of S.67 the Government may by notification in the Gazette extend the term of office of Mayor, Deputy Mayor and chairman for the same period for which the term of office of councillors is so extended". and S.67 of the Act provides: "67. Term of Office of Councillors and election of councillors: (1) The term of office of councillors shall, save as otherwise expressly provided„ be five years commencing from such date as the Government may, by notification in the Gazette appoint. Provided that the Government may by notification in the Gazette, from time to time extend the said term by such period not exceeding one year in the aggregate as may be specified in the notification. (2) Vacancies arising by efflux of time in the office of councillor shall be filled at ordinary elections, which shall be fixed by the Commissioner to take place on such days within a period of two months immediately preceding the date of expiry of term of office. (3) A casual vacancy in the office of councillor shall be filled at a casual election which shall be fixed by the commissioner to take place as soon as may be after the occurrence of the vacancy:' Provided that ho casual election shall be held to fill a vacancy occurring within three months before the ordinary date of retirement and that such Vacancy shall be filled at the next ordinary election. (4) A councillor elected at a casual election shall enter upon office forthwith but shall hold office so long only as the councillor in whose place he is elected would have been entitled to hold office if the vacancy had not occurred." In accordance with the above provisions in the Act first council was elected in November, 1968. By a series of Acts, the term of the Council was successively extended. By Act 27 of 1978 it was extended upto 1-11-1978. Then came Ext. By a series of Acts, the term of the Council was successively extended. By Act 27 of 1978 it was extended upto 1-11-1978. Then came Ext. P1 ordinance, which extended the term of the council upto 1-6-1979. It provided that elections shall be held to the council so that the newly elected members may enter office by 1-6-1979. The Mayor and Deputy Mayor were to be elected at the 1st meeting of the council after 1-11-1978. In pursuance of Ext. P1 Ordinance, Ext, P2 notice dated 6111978 was issued fixing the 16th November for election of the Mayor and Deputy Mayor. Then came the impugned Ordinance Ext. P4, already noticed. 3. The Ordinance is attacked as destructive of the basic democratic spirit and concept underlying the Constitution; and also as meant to postpone the conduct of the elections to the posts of Mayor and Deputy Mayor, and to keep in office these functionaries beyond the span of their elected term of office. We are afraid that this argument does not cut much ice. These are matters essentially of policy and decision by the Government. So long as competence to promulgate the Ordinance can be found, and no invalidating featores are present, this court cannot concern itself with the objectives or the polices of the Government or cavil at them. 4. We therefore pass on to the attack against the competence of the Ordinance. Art.213 of the Constitution furnishes necessary authority for the Governor to promulgate an Ordinance. Under clause (1) of the Article an Ordinance is to be promulgated when the Legislative Assembly of a State is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action. By clause (2), the Ordinance promulgated under the Article is to have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but it has to be laid before the Legislative Assembly and shall cease to operate at the expiration of six weeks from the re-assembly of the Legislature. It can also be withdrawn by the Governor at any time. By clause (3), the Ordinance-making power of the Governor is co-extensive with the legislative power of the legislature. Clause (4) of the Article was newly added in 1975. It can also be withdrawn by the Governor at any time. By clause (3), the Ordinance-making power of the Governor is co-extensive with the legislative power of the legislature. Clause (4) of the Article was newly added in 1975. That states that the satisfaction of the Governor mentioned in clause (1) shall be final and conclusive and shall not be questioned in any court on any ground. 5. Counsel argued from the decision in the Bank Nationalisation case-Cooper's case - (AIR. 1970 SC. 564) that the rule laid down in Bhagat Singh's case (AIR. 1931 PC. 111) and in Benoari Lal Sarma's case (AIR. 1945 PC. 48) that the Governor General (or Governor) is to be the sole judge of the emergency in formulating an Ordinance, was with respect to the Government of India Act, 1935, and may require re-examination against the background of the provisions of the Constitution. Little material was placed in support of this argument, which appeared to be based on political rather than legal considerations. Indeed, the decision in S. K. G. Sugar Ltd. v. State of Bihar (AIR. 1974 SC. 1533) is one of the recent authorities which has re-stated the position that the necessity of immediate action in promulgating an Ordinance is purely a matter for subjective satisfaction of the Governor. The decision followed the earlier decision of the Supreme Court in State of Punjub v. Satya Pal (AIR. 1969 SC. 903) which was rendered before the 38th Amendment Act of 1975, which introduced clause (4) in Art.7-13. Whatever vestige of doubt there might be in regard to the position, stands completely removed by the said clause. We do not think that the satisfaction of the Governor in promulgating the Ordinance is justiciable. 6. Nor are we persuaded by the general argument that the Ordinance cuts at the root of the democratic spirit and process, underlying the Constitution, and perpetuates and keeps in office functionaries who have to be called to office and continue to function through a process of election. Whatever be the basic structure of the Constitution and the position as to nibbling at, or destroying, the same, it has been ruled that amendment of an ordinary legislation is not affected by the basic structure theory-vide Smt. Indira Nehru Gandhi v. Raj Narain (AIR. 1975 SC. 2299-Paragraphs 315 and 317). See also Karnataka State v. Union of India (AIR. 1978 SC. 68). 1975 SC. 2299-Paragraphs 315 and 317). See also Karnataka State v. Union of India (AIR. 1978 SC. 68). In view of the principles thus laid down, we are not impressed by the argument that the Ordinance violates the democratic spirit and purpose of the Constitution. 7. Mala fides is sought to be spelt out from the fact that in accordance with the provisions of Ordinance 24 of 1978 (Ext. P1) the election had been fixed by Ext. P2 notice, to beheld on the 16th November, 1978, and the impugned Ordinance ordained on the 15th November, that there shall be no election, and extended the term of the Council upto 1-6-1979. But it is well-settled that if competence is posited, the vice of mala fides cannot vitiate the legislation. We have, further, the clear provision in the non-obstante clause in in S.2 of the Ordinance, providing that it is to prevail notwithstanding anything contained in the Municipal Corporations Act, 1961 regarding the term of office of the Mayor, the Deputy Mayor and other councillors. There is also the provision in S.3 that the Government shall cause elections to be held to take place so that the newly elected councillors may enter upon office on the 1st day of June, 1979. In view of these provisions no attack can be mounted against the provisions of the impugned Ordinance. Entry 5 in List II furnishes the source of legislative power for the legislature to deal with the matter; and ex hypothesi, for the Governor to promulgate the Ordinance. There is no merit in the challenge raised against the impugned Ordinance; We dismiss this writ petition with no order as to costs. Dismissed.