9911796707
TMI Blog1985 (3) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... he Governor of Andhra Pradesh on January 6, 1984 in exercise of his powers under Article 213 of the Constitution by which the posts of part- time Village Officers in the State of Andhra Pradesh came to be abolished and provision was made for the appointment of Village Assistants. Some of the petitions which are disposed of by this judgment had been filed before the High Court of Andhra Pradesh under Article 226 of the Constitution for similar reliefs. They were withdrawn to this Court under Article 139A of the Constitution form hearing them along with the petitions filed under Article 32. Section 2(d) of the Ordinance defined the expression 'part-time village officer' as a person who held any of the village offices of headman, munsiff, reddy, monigar, peddakapu, patel, karnam or patwari or triune officer or holder of any such village office by whatever designation it may be locally known including their assistants appointed under (i) the Andhra Pradesh (Andhra Area) Village Offices Service Rules, 1969, (ii) the Andhra Pradesh (Telangana Area) Village Offices Service Rules, 1978 or (iii) any other law. The petitioners were the holders of these posts immediately prior to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with larger volume of work. The Committee recommended that steps should be taken to reduce the number of posts by merger of functions and increasing the area over which the village officers could exercise jurisdiction. In course of time, the Governor of Andhra Pradesh promulgated rules under the proviso to Article 309 of the Conitution called the Andhra Pradesh (Andhra Area) Village Offices Service Rules, 1969 providing for the regulation of the recruitment and conditions of service of holders of village offices in the Andhra Area of the State of Andhra Pradesh with effect from May 22, 1969. The Legislature of the State of Andhra Pradesh passed the Andhra Pradesh Watans (Abolition) Act, 1978 which came into force with effect from December 8, 1977 abolishing all the watans (village offices together with the properties appertaining to them) other than sethsindhis and neeradies in the Telangana Area of the State. Simultaneously the Andhra Pradesh (Telangana Area) Village Offices Service Rules, 1978 were promulgated by the Governor with effect from 7th December, 1977 providing for the recruitment and conditions of service of the village officers in the Telangana Area. The village off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as upheld and K. Rajendran & Ors. etc. etc. v. State of Tamil Nadu & Ors.( 1982 3 S.C.R. 628) in which the validity of the Tamil Nadu Abolition of Posts of Part-time Village Officers Ordinance, 1980 (Tamil Nadu Ordinance No. 10 of 1980) and of the Tamil Nadu Abolition of Posts of Part-time Village Officers Act, 1981 (Tamil Nadu Act No.3 of 1981) was upheld. Hence the learned counsel for the petitioners very fairly, and we think rightly, did not many of the contentions which has been rejected by this Court in the said decisions. They, however, pressed the following contentions before us in support of the petitions: (i) that the Ordinance is void and ineffective due to lack of application of mind by the Governor to the subject matter of the Ordinance; (ii) that the Ordinance having lapsed as the Legislature did not pass an Act in its place, the posts which were abolished be deemed to have revived and the issue of successive ordinances the subsequent one replacing the earlier one did not serve any purpose; and (iii)that the abolition of posts and the consequent deprivation of the right of the petitioners to hold the said posts amounted to an infringement of their fundamental right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncil are summoned to re assemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes p, of this clause. (3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void: Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him." Article 213 of the Constitution corresponds to Article 123 of the Constitution which confers similar powers on the president in relation to matters on which Parliament can make laws. Article 123 reads thus: "123. (1) If at any time, except when both Houses of Parliament are in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... President and two Houses to be known respectively as the Council of States (Rajya Sabha) and the House of people (Lok Sabha). The assent of the President to a Bill passed by both the Houses of Parliament is essential for its becoming law under Article 111 of the Constitution. Similarly under Article 168 of the, Constitution it is provided that the State Legislature consists of the Governor and the Legislative Assembly of a State and where there is a Legislative Council, the State Legislature consists of the Governor and the two Houses. The Governor's assent or the President's assent when it is reserved for his consideration to a Bill passed by the State Legislature is necessary under Article 200 of the Constitution before it can become law. The powers conferred on the President under Article 123 and on the Governor under Article 213 of the Constitution are, however, Legislative powers which may be exercised without prior approval of the concerned legislature. In India the Governor-General had been given the power under section 72 of the Government of India Act, 1915 to make ordinances which read thus: "72. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinances as the circumstances appear to require: (2) An ordinance promulgated under this section shall have the same force and effect as an Act of the Federal Legislature assented to by the Governor General, but every such ordinance- (a) shall be laid before the Federal Legislature and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or, if before the expiration of that period resolutions disapproving it are passed by both Chambers, upon the passing of the second of those resolutions; (b) shall be subject to the provisions of this Act relating to the power of His Majesty to disallow Acts as if it were an Act of the Federal Legislature assented to by the Governor-General; and (c) may be withdrawn at any time by the Governor General. (3) If and so far as an ordinance under this section makes any provision which the Federal Legislature would not under this Act be competent to enact, it shall be void." Section 88 of the Government of India Act, 1935 which was more or less in similar terms and which conferred power on the Governor of a province to issue an ordinance came up for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 between its last sitting in one session and the date appointed for its first meeting in the next session and since under clause (2) of Article 123 of the Constitution an ordinance has to be laid before both Houses of Parliament and would cease to operate at the expiration of six weeks from the reassembly of Parliament, it cannot be said that either Houses can be avoided by the President beyond seven and a half months after the passing of an ordinance. It is open to Parliament if it chooses to approve it or not. Having regard to the conditions prevailing in India the Constitution makers a thought that the ordinance making power should be given to the President to deal unforeseen or urgent matters. The position under Article 213 of the Constitution is also the same. Dealing with the criticism that Article 123 was an undemocratic provision, Bhagwati, J. speaking for the majority of the Constitution Bench said in R.K. Garg etc. etc. v. Union of India & Ors. etc. ([1982] 1 S.C.R. 947) at pages 96 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dged 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, promulgates an Ordinance in mis-use or abuse of this power, the legislature cannot only pass a resolution disapproving the Ordinance but can also pass a vote of no confidence in the executive. There is in the theory of constitutional law complete control of the legislature over the executive, because if the executive misbehaves or forfeits the confidence of the legislature, it can be thrown out by the legislature. Of course this safeguard against misuse or abuse of power by the executive would control in efficacy and value according as if the legislative control over the executive diminishes and the executive begins to dominate the legislature. But nonetheless it is a safeguard which protects the vesting of the legislative power in the President from the charge of being an undemocratic provision." The above view has been approved by another Constitution Bench of this Court in A.K. Roy etc. v. Union of lndia & Anr.([1982]2 S.C.R. 272 at page 299 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ributes 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 of these issues in relation to an ordinance has been expressed in K. Nagaraj & Ors.etc. v. State of Andhra Pradesh & Anr. etc.([1985] 1 SCALE 31) at page 50 by one of us (Chandrachud, C.J.) thus: "It is impossible to accept the submission that the Ordinance can be invalidated on the ground of non- application of mind. the power to issue an ordinance is not an executive power but is the power of the executive to legislate. The power of the Governor to promulgate an ordinance is contained in Article 213 which occurs in Chapter IV of Part VI of the Constitution. The heading of that Chapter is "Legislative Power of the Governor." This power is plenary within its field like the power of the State Legislature to pass laws and there are no limitations upon that power except those to which the legislative power of the State Legislature is subject There fore, though an ordinance can be invalidated for contravention of the constitutional limitations w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 question is whether the posts of part-time village officers revive as the Ordinance is not replaced by an Act of the legislature of the State. This contention of the petitioners is based on clause (2) of Article 213 of the Constitution. It is argued on their behalf that on the failure of the State Legislature to pass an Act in terms of the Ordinance it should be assumed that the Ordinance had never become effective and that it was void ab initio. This contention overlooks two important factors namely the language of clause (2) of Article 213 of the Constitution and the nature of the provisions contained- in the Ordinance. Clause (2) of Article 213 says that an ordinance promulgated under that 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 bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 in accordance with law. Since the State Government felt that the said decision affected not merely the elections to the Cuttack Municipality but some other municipalities in the State of Orissa where also similar irregularities had been committed in the preparation of the electoral rolls, the Governor promulgated an ordinance on January 15, 1959 which contained provisions validating the electoral rolls and the elections held on their basis notwithstanding any judgment to the contrary. The said ordinance, however, lapsed on April I, 1959. The petitioner when had filed the writ petition earlier again filed another writ petition questioning the continuance of the elected Councillors in office by virtue of the ordinance. The High Court allowed the writ petition and issued an injunction to the elected Councillors restraining them from functioning as Councillors. The State Government and the councillors filed the above appeal before this Court. It was contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 abolition of the posts and the declaration that the incumbents of those posts would cease to be holders of those posts under section 3 of the Ordinance being completed events, there is no question of their revival or the petitioners continuing to hold those posts any longer. The above contention has, therefore, to be rejected in the circumstances of this case. In view of what has been stated above it is not necessary to consider the contention of the petitioners that it was not open to the Government to issue one ordinance after another to keep alive the effect of the first ordinance as the first ordinance itself brought about the desired effect by section 3 thereof. Even if the other provisions of the Ordinance have ceased to be in force, there can be no constitutional difficulty arising therefrom because it is open to the State Government to create new posts in exercise of its powers under Article 162 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
