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2013 DIGILAW 455 (UTT)

Ajay Bhatt v. State of Uttarakhand

2013-07-09

V.K.BIST

body2013
ORDER By means of this petition, the petitioner has challenged the Notification No.178/XXXVI(3)/2013/36 (2)/2006 dated 13th April, 2013, whereby His Excellency the Governor of the State of Uttarakhand, by exercising the powers as provided under Article 213 (1) of the Constitution of India, has promulgated the Ordinance No.01 of 2013 known as The Uttarakhand State Legislature (Prevention of Disqualification) (Amendment) Ordinance, 2013 {hereinafter referred to as the Ordinance, according to which the amended Ordinance shall be deemed to have come into force with retrospective date i.e. 13.03.2012. By this Ordinance, an amendment has been made in Section 3 of the Uttar Pradesh State Legislature (Prevention of Disqualification) Act, 1971(as applicable in the State of Uttarakhand) {hereinafter referred to as the Principal Act}, by inserting five bodies at serial No.58 to serial No.62. In addition to amendment in Section 3 of the Principal Act by inserting five bodies, a saving clause has also been incorporated by the Ordinance, wherein it is provided that notwithstanding such amendments, anything done or any action taken under the Principal Act, shall be deemed to have been done or taken under the Ordinance. Further prayer has been made for declaring private respondent, namely, Dr. Harak Singh Rawat as disqualified for being a Member of the Uttarakhand Legislative Assembly in view of Article 191 of the Constitution of India. 2. In the year 2012, the respondent No.4, Dr. Harak Singh Rawat was elected as a Member of the State Legislative Assembly in the General Election held in the month of January, 2012, and thereafter, he was appointed as the Cabinet Minister. By an Office Memorandum dated 7th August, 2012, issued by the Principal Secretary of the Agriculture and Marketing Department, he was appointed as Director of Uttarakhand Seeds and Tarai Development Corporation Ltd. By a subsequent Office Memorandum dated 7th August, 2012, he was also appointed as Chairman of the said corporation. Further, the respondent No.4 was also appointed as Chairman of Uttarakhand Purva Sainik Kalyan Nigam Ltd. and also Chairman of Uttarakhand State Seeds and Organic Certification Agency. Offices of these posts were office of profit. The respondent No.4 took over the charge of these posts. 3. The petitioner was also elected as Member of the State Legislative Assembly. Thereafter, he was elected as the Leader of Opposition for the State Legislative Assembly. Offices of these posts were office of profit. The respondent No.4 took over the charge of these posts. 3. The petitioner was also elected as Member of the State Legislative Assembly. Thereafter, he was elected as the Leader of Opposition for the State Legislative Assembly. On 2nd April, 2013, the State President of the B.J.P. submitted a memorandum to His Excellency the Governor of the State with the contention that the respondent No.4, Dr. Harak Singh Rawat, Agriculture Minister, is also holding the office of profit of different corporations including Uttarakhand Seeds and Tarai Development Corporation Ltd. and in view of Article 191 (1)(a) of the Constitution of India, he should be declared disqualified for being a Member of the Uttarakhand Legislative Assembly. Another Memorandum dated 10.04.2013 was also submitted before the Governor of the State. The Memorandum dated 2nd April, 2013 was signed by the Leader of Opposition i.e. the present petitioner and other members of the party. 4. Mr. Satya Pal Jain, Senior Advocate for the petitioner by referring Article 191 and Article 192 of the Constitution of India submitted that admittedly, on the date of filing of representation before His Excellency the Governor on 2nd April, 2013, seeking disqualification of the respondent No.4, the respondent No.4 was holding the posts, which were outside the Principal Act. Therefore, since the respondent No.4 was holding the post of office of profit on 2nd April, 2013, he stood disqualified under Article 191 of the Constitution of India. He further submitted that the Governor was under the obligation to decide the question raised by the petitioner with regard to the disqualification of the respondent No.4. The Governor was under legal obligation to obtain the opinion of the Election Commission and to take a decision on the question raised by the petitioner. Subsequently, on 13.04.2013, an Ordinance has been promulgated by the Governor of the State by inserting five bodies at serial No.58 to serial No.62 of the Principal Act and this brought all the posts, which were being occupied by the respondent No.4, outside the office of profit from retrospective date. Thus, the Ordinance has been promulgated using colourable exercise of power. According to Mr. Thus, the Ordinance has been promulgated using colourable exercise of power. According to Mr. Satya Pal Jain, Senior Advocate the Governor, before considering the promulgation of Ordinance, should have referred the matter to the Election Commission and should have taken decision as provided under Article 192 of the Constitution of India, which has not been done. He argued that the Ordinance promulgated by the Governor is subject to approval by Legislature. The same may lapse after a period of six months. He contended that there is nothing, which could show the emergency in the matter and the Governor has exercised the power in improper manner. By referring the judgments reported in 2009 (9) SCC 648 : (AIR 2009 SC (Supp) 1680), 2013 (1) SCC 745 : (AIR 2013 SC (Civ) 36) and 2011 (8) SCC 737 : ( AIR 2011 SC 3470 ), the learned Senior Advocate for the petitioner submitted that this Court, by exercising its power under Article 226 of the Constitution of India, may scrutinize the matter and quash the impugned Ordinance. In support of his submission, he relied upon the judgment reported in 2001 (4) SCC 534 : ( AIR 2001 SC 1980 ), 2001 (7) SCC 425 : ( AIR 2001 SC 2583 ) and 1998 (5) SCC 643 : (1998 AIR SCW 2260). 5. Mr. U. K. Uniyal, learned Advocate General for the State, on the other hand, submitted that the writ petition filed by the Leader of Opposition is not maintainable. He submitted that the Bhartiya Janta Party has gone to the Governor and not the individual, therefore, the present petition should not be entertained. Learned Advocate General submitted that the petitioner is not an aggrieved party and on this ground also, the writ petition should not be entertained. He then argued that the matter does not requires judicial scrutiny, inasmuch as, Ordinance has been promulgated by the Governor of the State in exercise of the power given to him under Article 213 of the Constitution of India. Learned Advocate General denied that promulgation of the Ordinance is colourable exercise of power. He submitted that the Governor of the State is fully competent to promulgate the Ordinance retrospectively and in the present case, the Ordinance has been promulgated retrospective from 13.03.2013. Learned Advocate General denied that promulgation of the Ordinance is colourable exercise of power. He submitted that the Governor of the State is fully competent to promulgate the Ordinance retrospectively and in the present case, the Ordinance has been promulgated retrospective from 13.03.2013. He further submitted that once the Ordinance has been issued retrospectively from 13.03.2013, it cannot be said that the respondent No.4, at any date, held the office of profit. He argued that since the respondent No.4 does not hold the office of profit, the writ petition filed by the petitioner deserves to be dismissed. In support of his arguments, he relied upon the judgment reported in 2009 (9) SCC 648 : (AIR 2009 SC (Supp) 1680). 6. I have heard learned counsel for the parties and have perused the papers available on record. Article 191 of the Constitution of India provides disqualifications for membership, whereas Article 192 of the Constitution of India provides decision on questions as to disqualifications of members. Article 191 and Article 192 of the Constitution of India are being reproduced below: Article 191. Disqualifications for membership.-(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State- (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament. [Explanation- For the purpose of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.] Article 192. (2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.] Article 192. Decision on questions as to disqualifications of members.- (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final. (2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion. 7. The first question before this Court is that promulgation of an Ordinance in the facts and circumstances of the present case can be quashed? The Honble Supreme Court in the matter of K. Nagaraj and others v. State of Andhra Pradesh, 1985 (1) SCC 523 : ( AIR 1985 SC 551 ), it was held that the legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. If no reasons are so stated as appears from the provisions enacted by it. Even assuming that the executive has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This kind of transferred malice is unknown in the field of legislation. In G.C. Kanungo v. State of Orrisa, 1995 (5) SCC 96 : ( AIR 1995 SC 1655 ), the Honble Supreme Court has held that the mala fides or ulterior motives attributed to a State Legislature in making a law within its competence can never make such law unconstitutional, is well settled. Therefore, there is no scope for setting aside the impugned ordinance. 8. The second question before this Court is that on what grounds can an Ordinance be challenged? The constitutional validity of an Act/Law can be challenged on two grounds viz., (1) lack of legislative competence and/ (2) or violation of fundamental rights or any other provision of the Constitution. In the matter of State of Andhra Pradesh v. Mc. Dowell & Co. The constitutional validity of an Act/Law can be challenged on two grounds viz., (1) lack of legislative competence and/ (2) or violation of fundamental rights or any other provision of the Constitution. In the matter of State of Andhra Pradesh v. Mc. Dowell & Co. and others, 1996 (3) SCC 709 : ( AIR 1996 SC 1627 ), the Honble Supreme Court has opined that except the above two grounds, there is no third ground on the basis of which a law made by a competent legislature can be invalidated. 9. The third question before this Court is that can disqualification of a Member of Legislative Assembly, under Article 191 of the Constitution of India, be cured by way of a subsequent legislation or by an Ordinance with retrospective effect? In the Constitutional Bench judgment delivered by the Honble Supreme Court in Smt. Kanta Kathuria v. Nanak Chand Surana, reported in 1969 (3) SCC 268 : ( AIR 1970 SC 694 ), the controversy before the Honble Supreme Court was of a similar nature. The appellant was disqualified for holding an office of profit under the Government of Rajasthan, which was subsequently cured by an Act made by the Rajasthan Legislature, which removed her disqualification retrospectively. The question before the Court was whether the new law was remedial or declaratory. If it was declaratory then it would be retrospective and could the Rajasthan Legislature remove the disqualification retrospectively? The Honble Supreme Courts Constitutional Bench held that It seems that there is a settled legislative practice to make validation laws. It is also well recognized that Parliament and the Legislatures of the States can make their laws operate retrospectively. Any law that can be made prospectively may be made with retrospective operation except that certain kinds of laws cannot operate retroactively. The Honble Supreme Court further held that Article 191 itself recognizes the power of the Legislature of the State to declare by law that the holder of an office shall not be disqualified for being chosen as a member. The Article says that a person shall be disqualified if he holds an office of profit under the Government of India or the Government of any State unless that office is declared by the Legislature not to disqualify the holder. Power is thus reserved to the Legislature of the State to make the declaration. The Article says that a person shall be disqualified if he holds an office of profit under the Government of India or the Government of any State unless that office is declared by the Legislature not to disqualify the holder. Power is thus reserved to the Legislature of the State to make the declaration. There is nothing in the words of the Article to indicate that this declaration cannot be made with retrospective effect. It is true that it gives an advantage to those who stand when the disqualification was not so removed as against those who may have kept themselves back because the disability was not removed. That might raise questions of the propriety of such retrospective legislation but not of the capacity to make such laws. Regard being had to the legislative practice in this country and in the absence of clear prohibition either express or implied, we are satisfied that the act cannot be declared ineffective in its retrospective operation. 10. The argument of the learned Senior Advocate for the petitioner is that there was no emergency before the Governor of the State to promulgate the Ordinance and there is nothing on record, which could suggest that there was such emergency, thus, the action is colourable exercise of power and in view of this fact, the matter requires judicial scrutiny and the impugned Ordinance deserves to be set aside. This argument of the Senior Advocate for the petitioner has no force in view of the fact that the Constitution empowers the Governor to promulgate the Ordinance and such power to promulgate the Ordinance from retrospective effect is also inherent. The Honble Supreme Court in the matter of S.K. Sugar (Private) Limited v. State of Bihar, reported in 1974 (4) SCC 827 : ( AIR 1974 SC 1533 ), has held that the necessity of immediate action and of promulgating an Ordinance is a matter purely for the subjective satisfaction of the Governor, and he is the sole Judge as to the existence of the circumstances necessitating the making of the Ordinance and his satisfaction is not justifiable and cannot be questioned on ground of error of judgment or otherwise. 11. Another submission of learned Senior Advocate for the petitioner is that this is an Ordinance subject to approval by Legislature. The Ordinance may lapse after a period of six months. 11. Another submission of learned Senior Advocate for the petitioner is that this is an Ordinance subject to approval by Legislature. The Ordinance may lapse after a period of six months. In such situation, the Ordinance promulgated by the Governor requires judicial scrutiny. This submission has also no force in view of the fact that Article 213 of the Constitution of India, empowers the Governor to promulgate such Ordinance and this power cannot be challenged on the ground that the Ordinance promulgated by the Governor may lapse after a period of six months. 12. The Senior Advocate for the petitioner also tried to persuade the Court to exercise its power of judicial review in the present matter on the ground that His Excellency the Governor failed to exercise his power vested in him under Article 192 of the Constitution of India. He vehemently argued that the facts of the present case are different from the facts of the case in which Ordinance is promulgated in normal circumstances. He submitted that power has been misused, inasmuch as, it was within the knowledge of His Excellency, the Governor that on 02.04.2013, the respondent No.4 was holding the post of office of profit and was disqualified under Article 191 of the Constitution of India. Despite this fact, the Governor did not take any decision in the matter and promulgated the Ordinance. According to the Senior Advocate for the petitioner, first the Governor of the State should have taken decision on the pending representation of the petitioner and other members, seeking disqualification of the respondent No.4 and only thereafter should have considered for promulgating Ordinance. Though, this argument of the learned Senior Advocate for the petitioner appears to be attractive, but has no legs to stand as no law or provision in the constitution has been shown in support of the said argument and in view of the fact that the necessity of immediate action and of promulgating an Ordinance with retrospective effect is a matter purely for the subjective satisfaction of the Governor, the Court should not interfere with the same. The Honble Supreme Court in the matter of S.K. Sugar (Private) Limited v. State of Bihar ( AIR 1974 SC 1533 ) has clearly held that the necessity of immediate action and of promulgating an Ordinance is a matter purely for the subjective satisfaction of the Governor, and he is the sole Judge as to the existence of the circumstances necessitating the making of the Ordinance and his satisfaction is not justifiable and cannot be questioned on ground of error of judgment or otherwise. 13. Shri Satya Pal Jain, learned Senior Advocate appearing for the petitioner, by referring judgments of the Honble Supreme Court, submitted that this is a case where Court should interfere. He referred paragraph No.66 of the judgment reported in 2009 (9) SCC 648 : (AIR 2009 SC (Supp) 1680) Consumer Education & Research Society v. Union of India & others and argued that in the present matter, the Governor failed to act in accordance with the provisions of Article 192 (2) of the Constitution of India. Paragraph No.66 of this judgment is reproduced below: 66. In this context, we may refer to the following observations of the Constitution Bench in Brundaban Nayak in respect of Article 192 (which equally apply to Article 103) which makes it clear that a decision/declaration by the Governor/President is not optional, but a necessity in cases under Articles 191(1) and 101(1). It was held that (Gajendragadkar, J. at para 14) : (Brundaban Nayak case ( AIR 1965 SC 1892 ), AIR p. 1896) 14. It is true that Article 192(2) requires that whenever a question arises as to the subsequent disqualification of a Member of the Legislative Assembly, it has to be forwarded by the Governor to the Election Commission for its opinion. It is conceivable that in some cases, complaints made to the Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway. The object of Article 192 is plain. It is conceivable that in some cases, complaints made to the Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway. The object of Article 192 is plain. No person who has incurred any of the disqualifications specified by Article 191(1), is entitled to continue to be a Member of the Legislative Assembly of a State, and since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself by Article 190(3)(a), there should be no difficulty in holding that any citizen is entitled to make a complaint to the Governor alleging that any Member of the Legislative Assembly has incurred one of the disqualifications mentioned in Article 191(1) and should, therefore, vacate his seat. The whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status, and if any member forfeits that status by reason of a subsequent disqualification, it is in the interests of the constituency which such a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of Article 192(2). Learned Advocate General also relied on paragraph Nos. 74 and 75 of the same judgment and submitted that in view of promulgation of Ordinance, the prayer of the petitioner cannot be allowed. Paragraph Nos.74 and 75 of the judgment are also quoted below : 74. There is no doubt that the disqualification, when declared by the President will become operative from the date the Member accepted the office of profit. It is also not in doubt that the vacation of the seat is consequential. However, the question is whether the seat of the Member becomes vacant without anything more when a person accepts an office of profit? The obvious answer is no. If the Member does not make a voluntary declaration that he/she has incurred a disqualification and if no one raises a dispute about the same, the Member would continue in spite of accepting an office of profit. There is nothing strange about this position. The obvious answer is no. If the Member does not make a voluntary declaration that he/she has incurred a disqualification and if no one raises a dispute about the same, the Member would continue in spite of accepting an office of profit. There is nothing strange about this position. We have already noted that when a person who has incurred a disqualification offers himself/herself as a candidate and is subsequently elected and if no one objects and if the Returning Officer accepts the nomination and if no election petition is filed challenging the election, then he/she would continue as a Member in spite of the disqualification. Therefore, our considered opinion is that while a disqualification results in the vacation of the seat of a Member, the vacancy occurs only when the President decides and declares the disqualification under Article 103. 75. When the amending Act retrospectively removed the disqualification with regard to certain enumerated offices, any Member who was holding such office of profit, was freed from the disqualification retrospectively. As of the date of the passage of the Amendment Act, none of the Members who were holding such offices had been declared to be disqualified by the President, Section 4(2) was not attracted and consequently they continued as Members. If the judgment cited by the parties is read in totality, the Ordinance cannot be challenged on the basis of said judgment. 14. Other judgments cited by learned Senior Advocate also do not help the petitioner. Though power of judicial review is there, but that should be exercised in exceptional cases. In 1987 (1) SCC 378 : (AIR 1987 SC 579) Dr. D.C. Wadhwa & others v. State of Bihar and others, the Bihar Intermediate Education Council Ordinance, 1985 was struck down. This was done because the Government of Bihar made it a settled practice to deliberately go on repromulgating the Ordinances from time to time on a massive scale in a routine manner. But in the present case, the State Assembly will consider whether Act should be made for bringing five bodies under the purview of the Principal Act or not. 15. The Honble Supreme Court in the matter of T. Venkata Reddy v. State of Andhra Pradesh, reported in 1985 (3) SCC 198 : ( AIR 1985 SC 724 ), has held that the motives of the Legislature in passing a statute is beyond the scrutiny of Courts. 15. The Honble Supreme Court in the matter of T. Venkata Reddy v. State of Andhra Pradesh, reported in 1985 (3) SCC 198 : ( AIR 1985 SC 724 ), has held that the motives of the Legislature in passing a statute is beyond the scrutiny of Courts. Nor can the Courts examine whether the Legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the Courts. An Ordinance passed either under Article 123 or under Article 213 is a law having the same force and effect as an Act of Parliament or State Legislature, as the case may be. When the Constitution says that the Ordinance making power is legislative power and an Ordinance shall have the same force as an Act, an Ordinance should be clothed with all the attributes of an Act of Legislature carrying with it all its incidents, immunities and limitations under the Constitution and it cannot be treated as an Executive action or an administrative decision. In view of settled legal position, as stated above, this Court does not find any error in the Ordinance impugned. Therefore, it is not permissible to examine the validity of Ordinance on the ground whether there were adequate and proper reasons for promulgating the Ordinance. The propriety, expediency and need to promulgate an Ordinance is within the satisfaction of the Governor and is not subject to judicial scrutiny. There is neither challenge on ground of want of legislative competence nor there is any challenge on violation of fundamental rights or constitutional provision. Nor these two grounds were raised during the course of argument. The grounds urged by the petitioner have no merit. Therefore, I uphold the validity of Ordinance impugned. 16. The writ petition is dismissed. 17. No order as to costs. Petition dismissed.