TMI Blog1985 (3) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... powers under Article 162 of the Constitution as long as the field is not occupied by an Act of the Legislature or a rule made under the proviso to Article 309 of the Constitution. petition dismissed. - Writ Petition Nos. 623, 1546/84 - - - Dated:- 27-3-1985 - VENKATARAMIAH, E.S., MISRA RANGNATH, CHANDRACHUD, Y.V. (CJ), DESAI, D.A. AND REDDY, O. CHINNAPPA, JJ. Subramanya Poty, T.S. Krishnamurty Iyer, Miss Malini Poduval, B. Kanta Rao, Subodh Markandeya, Mrs. Sheil Sethi, A.K Ganguli, A.K. Charkarvarti, C.S. Vaidyanathan and Prabir Choudhary, G.N. Rao T.C. Gupta. and Attar Singh for the appearing Petitioners. K. Subramanya Reddy, Adv. Genl. (AP), E. Manohar, Addl. Adv. Genl (AP), T.V.S.N. Chari, Kailash Vasudev Sudash Menon and Miss Vrinda Grover, and B. Parthasarthi for the Respondent D.K Sen, P.P. Singh and R.N. Poddar, K Ram Kumar for the Intervener. VENKATARAMIAH, J. In the above writ petitions filed under Article 32 of the Constitution the petitioners have questioned the constitutional validity of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984 (Ordinance No. 1 of 1984) (hereinafter referred to as 'the Ordinanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consisted of the posts of patwari, mali patels and police patels who were village officers and sethsindhis and neeradis who were village servants. Their duties and responsibilities were laid down by 'Dastur-ulAmal' 1293 Hijri (Fasli 1285) and 'Dastur-e- Dehi'. These posts were also hereditary in character. They were also known as watans. After the decision of this Court referred to above, the Government of Andhra Pradesh appointed a Committee called the Village Officers Enquiry Committee under G.O.Ms. No. 1042, Revenue (1) dated June 16, 1961 to propose, among others a scheme for the village establishment of the entire State of Andhra Pradesh under the chairmanship of K.M. Unnithan, I.C.S. since the State Government was of the view that the then existing system of part-time officers working at the village level was not conducive to the interests of public administration. The said Committee submitted its report in 1961. It found that taking an overall view of the nature and quantum of work of the village officers in the two areas of the State there was not enough work for all village officers and that it was necessary to reorganise the village establishment by appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 5 of the Ordinance and the recruitment of persons as Village Assistants as provided by section 4 of the Ordinance for one or more revenue villages and the framing of rules relating to the conditions of their service as provided by section 6 of the Ordinance. The remaining provisions of the Ordinance were ancillary and incidental to the abolition of posts and the filling up of the new posts of Village Assistants. The abolition of the posts was, however, not dependent upon the filling up of the new posts of Village Assistants. They were two independent transactions. The abolition of the posts of part-time village officers became elective on the coming into force of the Ordinance. It may be stated here that the Ordinance has not yet been replaced by an Act of the State Legislature. It is, however, succeeded by four ordinances viz. Ordinance No. 7 of 1984, Ordinance No. 13 of 1984, Ordinance No. 18 of 1984 and Ordinance No. 21 of 1984. These petitions are in line with two cases which have already been decided by this Court viz. B.R. Shankaranarayana Ors. v. The State of Mysore Ors.(A.l.R.1966 S.C.1571) in which the constitutionality of the Mysore Village Offices Abolition Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or (c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration on the President, it had receive(l the assent of the President. (2) An ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance- (a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the houses, and shall cease to operate at the expiration of six weeks from the re assembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and (b) may be withdrawn at any time by the Governor. Explanation.-Where the Houses of the Legislature of a State having a Legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h they are within the legislative competence of the State Legislature but that does not make any difference regarding the points to be considered in these petitions because they are common to both Article 123 and Article 213 of the Constitution, At the outset the learned counsel for the petitioners questioned the constitutional propriety of the power of the Executive to make laws which would have a lasting effect on the rights of people in a democratic society where peoples' representatives should ordinarily be entrusted with the duty of making such laws. It is true that while our Constitution has adopted the pattern of separation of powers amongst the three organs of the Government, namely, the Legislature, the Executive and the Judiciary, it has conferred legislative power on the Executive subject to certain conditions by enacting Article 123 and Article 213 of the Constitution. It has also associated the President and the Governor with the making of the laws even when Parliament or the State Legislature, as the case may be, enacts them. Article 79 of the Constitution says that there shall be a Parliament for the Union which shall consist of the President and two Houses to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Governor-General. Section 42 of that Act conferred the power on the Governor-General to promulgate ordinances during the recess of Legislature. Section 43 of that Act conferred the power on him to promulgate ordinances at any time with respect to certain subjects and section 44 conferred the power on him in certain circumstances to enact Acts. Chapter IV of Part V of the Government of India Act, 1935 which contained sections 88,89 and 90 conferred similar legislative powers on the Governors of Provinces. Articles 123 and 213 of the Constitution have been enacted on the pattern of sections 42 and 88 of the Government of lndia Act, 1935. The relevant part of section 42 of the Government of India Act, 1935 is given below for ready reference. It read thus:- 42. Power of Governor-General to promulgate ordinances during recess of Legislature. (1) If at any time when the Federal Legislature is not in session the Governor-General is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to require: (2) An ordinance promulgated under this section shall have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has to be judged by the Governor-General alone. On promulgating an ordinance, the Governor-General is not bound as a matter of law to expound reasons therefor, nor is he bound to prove affirmatively in a court of law that a state of emergency did actually exist. The language of s. 88 postulates only one condition, namely, the satisfaction of the Governor as to the existence of justifying circumstances, and the preamble to the Ordinance expresses in clear terms that this condition has been fulfilled. The first contention of the appellants must therefore be rejected. Under Article 123 of the Constitution the President can promulgate an ordinance on the advice of the Council of Ministers to meet the requirements of a situation when either House of Parliament is not in session. Similarly under Article 213 of the Constitution the Governor may issue an ordinance on the advice of his Council of Ministers when the Legislative Assembly or where there are two Houses of the Legislature in a State either of them is not in session. Since under Article 85 of the Constitution it is not permissible to allow a period of six months to intervene in the case of each House of Parliament betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Moreover, the law made by the President by issuing an Ordinance is of strictly limited duration. It ceases to operate at the expiration of six weeks from the reassembly of Parliament or if before the expiration of this period, resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions. This also affords the clearest indication that the President is invested with this legislative power only in order to enable the executive to tide over an emergent situation which may arise whilst the Houses of Parliament are not in session. Further more, this power to promulgate an Ordinance conferred on the President is co-extensive with the power of Parliament to make laws and the President cannot issue an Ordinance which Parliament cannot enact into a law. It will therefore be seen that legislative power has been conferred on the executive by the constitution makers for a necessary purpose and it is hedged in by limitations and conditions. The conferment of such power may appear to be undemocratic but it is not so, because the executive is clearly answerable to the legislature and if the President, on the aid and advice of the executive, promulg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode of enacting it. While the courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. 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 of the Constitution stands on the same footing. 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. It cannot be treated as an executive action or an administrative decision. The true legal position about the justiciability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing Ordinance. It is next seen that the State Government introduced a Bill L.A. No. 3 of 1984 before the Legislative Assembly of the State to replace the Ordinance by an Act on February 24, 1984 within about seven weeks from the date of the Ordinance. The said Bill was referred to a Joint Select Committee and the Bill was not passed till June 7, 1984. In order to keep the effect of the Ordinance alive for purposes of any action that was still to be taken under it the Governor on the advice of the Council of Ministers again issued another ordinance, Ordinance No. 7 of 1984 dated March 21,1984. This was followed by Ordinance No. 13 of 1984 dated April 27, 1984, Ordinance No. 18 of 1984 dated June 7, 1984 and Ordinance No. 21 of 1984 dated July 19, 1984. In order to give effect to section 11 (1) of the Ordinance, the State Government promulgated the Andhra Pradesh Abolition of part-time Village Officers (Fixation of amount payable for total service) Rules, 1984 on February 24, 1984 and an Errata to the above Rules on March 27, 1984. In the circumstances of the case we do not, therefore, find any substance in the first contention urged on behalf of the petitioners. The next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment Or some amount to the ex-part-time village officers. Now by virtue of section 3 of the Ordinance all the posts of part-time village officers stood abolished on January 6,1984 and the petitioners ceased to be employees of the State Government These two matters became accomplished facts on January 6, 1984, irrespective of whether the holders of these posts were paid any amount under section 5 or whether the new posts of Village Assistants were filled up or not. when if the Ordinance is assumed to have ceased to operate from a subsequent date by reason of clause (2) of Article 213, the effect of section 3 of the Ordinance was irreversible except by express Legislation. An analogous question arose for consideration before a Constitution Bench of this Court in State of Orissa v. Bhupendra Kumar Bose.([1962] 2 Supp. S.C.R. 380) The facts of that case were these. Elections were held for the Cuttack Municipality and twenty seven persons were declared elected as Councillors. One of the defeated candidates filed a writ petition before the High Court of Orissa challenging the elections. The High Court set aside the elections on the ground that the electoral roll had not been prepared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Municipality to be l; invalid shall be deemed to be and always to have been of no legal effect whatever and that the said elections are thereby validated. That being so, the said elections must be deemed to have been validly held under the Act and the life of the newly elected Municipality would be governed by the relevant provisions of the Act and would not come to an end as soon as the Ordinance expires. Therefore, we do not think that the preliminary objection raised by Mr. Chetty against the competence of the appeals can be upheld. We do not, however, mean to say here that Parliament or the State Legislature is powerless to bring into existence the same state of affairs as they existed before an ordinance was passed even though they may be completed and closed matters under the Ordinance. That can be achieved by passing an express law operating retrospectively to the said effect, of course, subject to tile other constitutional limitations. A mere disapproval by Parliament or the State Legislature of an ordinance cannot, however, revive closed or completed transactions. In the petitions before us also the position is the same as in the decision referred to above. The abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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