TMI Blog2004 (4) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... . 6250 of 2004, also filed as PIL by the same petitioner, direction has been sought against Government of India to take appropriate steps under Articles 355 and 356 of the Constitution of India, allegedly on the ground that there is a constitutional breakdown and the State of A.P. is in the brink of financial bankruptcy. A further direction sought for against Union of India is to take appropriate steps to exercise its constitutional powers and in the meantime to direct the Union of India to take further steps by invoking its powers under Article 360 of the Constitution. 4. The third writ petition - W.P. No. 6334 of 2004 is filed by Sri Koduri Bhaskar Rao, a practising Advocate of Samalkot, praying for a direction directing the State of Andhra Pradesh not to utilise the funds from the Consolidated Fund of the State and Contingent Fund of the State till the formation of the new Assembly or in the alternative to direct the Union of India to declare emergency under Articles 354 and 356 of the Constitution of India. 5. On 31.3.2004, the Governor of Andhra Pradesh in exercise of his powers under Article 213(1) of the Constitution of India promulgated Ordinance No. 2 of 2004 authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed by the Constitution itself and no law making power is available to any authorities to nullify the constitutional mandate either in substance or by way of a procedure. Mr. Rao laid much emphasis, in support of the petitions urging that the Consolidated Fund of the State cannot be touched except by following the constitutional prescription by an approval to the Legislature of the State. Caretaker Government cannot take a policy decision. Taking a decision on appropriation of substantial amount by making an Ordinance is nothing but taking a major policy decision which could not have been taken by the Caretaker Government. He thus questioned the very constitutional validity of the Ordinance by saying that the Ordinance making power under Article 213 does not extend to the extent of infracting and violating or abrogating any constitutional prescriptions either in substance or in procedure. As the dissolved House can never have a recess, Ordinance-making power is not available to the State of Andhra Pradesh as on today. 9. After having questioned the very power of the Governor in issuing the Ordinance of the nature, learned Counsel submitted that the only remedy available t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the respondents to keep these petitions pending for further consideration. 12. Articles 196 to 201 in Chapter III of Part VI of the Constitution deals generally with the legislative procedure to be followed in the State Legislature in introduction and passing of bills etc., and as regards the financial matters the procedure is laid down under the same chapter in Articles 202 to 207. Articles 208 to 212 are the general rules of procedure as regards legislative business. Article 213 in Chapter IV of Part VI of the Constitution enumerates the legislative power of the Governor. 13. It is obligatory under Article 202 of the Constitution to lay before the Legislature of the State a statement of the estimated receipts and expenditure of the State in respect of every financial year which is termed as the Annual Financial Statement, commonly called the Budget. Article 203 deals with procedure to be adopted in Legislature with respect to estimates. As regards appropriation bills, Article 204 lays down the precise procedure to be followed. We are concerned with Clause (3) of Article 204, which prohibits any money to be withdrawn from the Consolidated Fund of the State except under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that expenditure and it is the State Legislature which alone has the power to authorise by law withdrawal of moneys from the Consolidated Fund of the State for the purpose for which the grant-in-advance as referred to in Sub-clause (a) of Clause (1) of Article 206 are made. 14. Power to make Ordinance laid down under Article 213 can be exercised by the Governor only when both the Houses of the State Legislature are not in session or in other words when the Legislative Assembly for the State is not in session. Submission of the learned Counsel for the petitioner is that power promulgating Ordinance can be exercised only during the recess of Legislature , which pre-supposes existence of Legislature, when it is not session. It was vehemently contended by Mr. Ramachandrarao that when Legislative Assembly of the State of Andhra Pradesh stands dissolved and elections have been notified, till new Assembly is constituted, the period in between, cannot be treated as recess so as to enable the Governor to exercise the power under Article 213 to promulgate Ordinance. He refers to the heading of Article 213 Power of Governor to promulgate Ordinances during recess of Legislature . 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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