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2013 DIGILAW 254 (ALL)

Harbhajan Lal Birdi, I. A. S. (Retd. ) and Others v. State of U. P. Thr. Prin. Secy. Irrigation Deptt. Lucknow & Others

2013-01-21

SHIVA KIRTI SINGH

body2013
Devendra Kumar Arora, J.— Heard learned counsel for the petitioner and Sri S.K. Kalia, learned Senior Counsel appearing for the State assisted by Sri Sanjay Sareen, learned Standing Counsel. Petitioner no.1 was appointed as Chairman and remaining two petitioners as Members of the U.P. Water Management and Regulatory Commission in terms of the U.P. Water Management and Regulatory Commission Act, 2008 (hereinafter referred to as 'the Act'). Before their term could come to an end, the Governor of Uttar Pradesh promulgated U.P. Ordinance No.9 of 2012 on 31.10.2012 to repeal the Act. As a consequence, the Commission as well as its Chairman and Members lost their existence and this led to filing of a writ petition by the petitioners, bearing Writ Petition No.9756 (MB) of 2012, which is pending. On behalf of the petitioners, it has been clarified that the petitioners have already filed an application seeking declaration that the said writ petition has become infructuous and have also sought liberty for preferring another writ petition, such as the present one. This writ petition is directed against U.P. Ordinance No.1 of 2013 dated 02.01.2013. By this Ordinance, the earlier Ordinance of 2012 and also the Act have been repealed. Petitioners have raised several objections in respect of Ordinance dated 02.01.2013, but their main objection is that there were no circumstances, which could necessitate the Governor to take immediate action in the matter so as to promulgate second Ordinance for repealing of the Act. It was also hinted that promulgation of second Ordinance amounted to practice of Ordinance Raj, which was deprecated by the Apex Court in the case of Dr. D.C. Wadhwa and others Vs. State of Bihar and others, reported in (1987) 1 SCC 378 . On the other hand, on behalf of the State of U.P., it was contended that the facts of the present case are entirely different because a Bill on the subject was introduced and the Legislative Assembly passed the Bill on 27.11.2012 and when the Bill was introduced in the Legislative Council on 5.12.2012, it was, for some reason, referred to the Select Committee for further consideration. Clearly, the facts of the present case are much different from those in the case of Dr. D.C. Wadhwa (supra). Clearly, the facts of the present case are much different from those in the case of Dr. D.C. Wadhwa (supra). Ordinarily, an Ordinance issued in exercise of powers conferred by Article 213 of the Constitution of India has the same sanctity as the law made by a competent legislature, but the life of such an Ordinance is limited unless the matter is considered and passed by the legislature earlier. Relying upon the judgment of the Supreme Court in the case of T. Venkata Reddy and others Vs. State of Andhra Pradesh reported in (1985) 3 SCC 198 , it was submitted on behalf of the State that even if the Ordinance ceases to operate from subsequent date by the reason of Clause (2) of Article 213, the effect of repeal of the Act by virtue of Section 2 of the First Ordinance was irreversible except by express legislation. It was pointed out that by the subsequent Ordinance, the Act has again been repealed and also the First Ordinance, but the consequences of the First Ordinance have not been reversed and hence, even if the Ordinance looses its validity in terms of Clause (2) of Article 213 of the Constitution of India, it will not reverse the consequences and cannot revive the Commission framed under the Act or the service contract of the petitioners. No issue has been raised before us that the Ordinance in question is in violation of any constitutional provision. In that view of the matter, the Ordinance dated 31.10.2012, which has now been repealed by subsequent Ordinance cannot be taken to be a nullity or void ab initio and in the absence of any legislative enactment, its effect cannot be reversed. Hence, the petitioners are found to have no legal right, which can be enforced by issuing a writ in their favour as prayed by them. In that view of the matter, it is not necessary to consider further issue as to whether the Governor was justified in recording his satisfaction that it was necessary for him to take immediate action by issuance of Ordinance in question. Accordingly, this writ petition is dismissed for the aforesaid reasons. _____________