Kerala High Court
Menasseri Ravunnikutty Nair vs The Revenue Divisional Officer on 16 March, 2022
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
WA NO. 2370 OF 2016
AGAINST THE JUDGMENT IN WPC 3808/2016 OF HIGH COURT OF KERALA DATED 3.10.2016
APPELLANT/WRIT PETITIONER:
MENASSERI RAVUNNIKUTTY NAIR
AGED 74 YEARS, S/O AMMU AMMA, PENSIONER, MENASSERI HOUSE,
PERUMANNA VILLAGE, CLARI POST, MALAPPURAM DISTRICT.
BY ADVS.
SRI.V.R.KESAVA KAIMAL
SMT.C.DEVIKA RANI KAIMAL
RESPONDENTS/RESPONDENTS:
1 THE REVENUE DIVISIONAL OFFICER
REVENUE DIVISIONAL OFFICE, TIRUR TALUK, TIRUR, MALAPPURAM DISTRICT
676 101.
2 THE COMMISSIONER OF LAND REVENUE
PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM 695 001.
BY ADV. SR.GOVERNMENT PLEADER SRI.TEK CHAND
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2022 ALONG WITH WA
169/17, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.2370 of 2016 & 169 of 2017
:: 2 ::
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
WA NO. 169 OF 2017
AGAINST THE JUDGMENT IN WPC 12664/2016 OF HIGH COURT OF KERALA DATED 3.10.2016
APPELLANT/PETITIONER:
CHEMMALA ASSAINAR HAJI, AGED 60 YEARS
S/O. KUNHAYAMUTY HAJI, RESIDING AT CHEMMALA HOUSE, THAZHEKODE VILLAGE,
PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, THAZHEKODE P.O., PIN-679 352.
BY ADV SRI.P.M.POULOSE
RESPONDENTS/RESPONDENTS:
1 THE SUB COLLECTOR, PERINTHALMANNA
PERINTHALMANNA, PERINTHALMANNA P.O., MALAPPURAM DISTRICT-679 322.
2 THE TAHSILDAR, PERINTHALMANNA TALUK, PERINTHALMANNA P.O., MALAPPURAM
DISTRICT 679 322.
3 THE PRINCIPAL SECRETARY TO GOVERNMENT
REVENUE (G) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
4 THE COMMISSIONER
LAND REVENUE, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM P.O. 695001.
*ADDITIONAL RESPONDENTS 5 AND 6 IMPLEADED.
Addl.R5 ALIPARAMBA GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY,PARAL P.O.,(VIA) PERINTHALMANNA,
MALAPPURAM DISTRICT,PIN-679357.
Addl.R6 SECRETARY,
ALIPARAMBA GRAMA PANCHAYAT,PARAL P.O.,(VIA) PERINTHALMANNA,
MALAPPURAM DISTRICT,PIN-679357.
ABOVE RESPONDENTS ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 AND 6
AS PER ORDER DATED 8/2/2022 IN I.A.NO.1 OF 2022 IIN WA 169/2017.
BY ADVS.SENIOR GOVERNMENT PLEADER SRI.TEK CHAND
SRI.K.M.JAMALUDHEEN
SMT.LATHA PRABHAKARAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2022 ALONG WITH WA 2370/16,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.Nos.2370 of 2016 & 169 of 2017
:: 3 ::
JUDGMENT
Dated this the 16th day of March 2022 Shaji P. Chaly, J.
The writ appeals are preferred against the common judgment of the learned Single Judge in W.P.(C)Nos.3808/16 and 12664/16 respectively whereby, the learned Single Judge dismissed the writ petitions holding that since the Malabar Land Registration Act, 1895 is repealed by Ordinance No.18 of 2005 dated 3rd December 2005, the applications submitted by the writ petitioners to register their lands in terms of Act, 1895 cannot be granted and therefore, the impugned orders passed by the statutory authority are in accordance with the law. The writ petitioner in W.P.(C)No.3808/16 has sought to quash Ext.P9 order dated 5.1.2016 issued to the petitioner under Right to Information Act whereby the petitioner was informed that the Malabar Land Registration Act, 1895 is repealed by the ordinance as specified above and therefore, further action in the application submitted by the petitioner can only be done as per the directions of the Government in the matter. In W.P.(C)No.12664/16, the petitioner/appellant has sought to quash Exts.P6, P7 and P8 orders dated nil, 10.8.2015 and 8.4.2015 respectively whereby, the petitioner was informed that the Malabar Land Registration W.A.Nos.2370 of 2016 & 169 of 2017 :: 4 ::
Act, 1895 was repealed and therefore, no action can be taken in the application submitted by the said petitioner, till such time appropriate directions are received from the superior authorities of the Government.
Case projected by the petitioners basically is that the respondents have failed to accept basic tax in respect of a property in possession of the petitioners on the basis of appropriate registered documents. According to the petitioners, the properties in question were classified under the category 'un-assessed land under the provisions of the Malabar Land Registration Act, 1895'. On the basis of the provisions of the Act 1895, application was filed for registering the properties as per the provisions of Act, 1895. Various aspects in respect of the properties and the entitlement of the appellants to secure registration are all narrated in the writ petition. However, we are not going into the details of those aspects because the authority passed the impugned orders and the learned Single Judge were of the opinion that the Ordinance No.18/2005 was issued by the State Government in order to repeal the obsolete enactments and the Ordinance was intended to operate only for a temporary period; and since the repeal of the Act by Ordinance was intended to be for all times, the expiration of the Ordinance would not revive the Act.
Therefore, it was held that the effect of an Ordinance in the nature of Ordinance 18/2005 introduced solely for the purpose of repealing the W.A.Nos.2370 of 2016 & 169 of 2017 :: 5 ::
obsolete enactments, would not become inconsequential merely because the procedure contemplated under Article 213 of the Constitution of India are not satisfied, being a short term statute, in view of the proposition of law laid down in the judgment of the Apex Court in the State of Orissa v. Bhupendra Kumar Bose and others [AIR 1962 SC 945]; T. Venkata Reddy v. State of A.P., [(1985) 3 SCC 198] and State of Haryana v. Amar Nath Bansal [(1997) 10 SCC 700].
Accordingly, it is held as follows by the learned Single Judge :
"6. Section 2 of the Ordinance has repealed 102 original enactments and 595 amendment enactments. Section 3 of the Ordinance provides that notwithstanding the repeal of the Kerala Land Acquisition Act, 1961, any reference of the said Act in any existing enactment in force in the State shall be construed as Land Acquisition Act, 1894 and the said enactments are by virtue of the said section amended accordingly. Section 4(1) of the Ordinance provides that the repeal by this Ordinance of any enactment shall not affect any other enactment in which repealed enactment has been applied, incorporated or referred to and this Ordinance shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand or any indemnity already granted or the proof of any past act or thing. The aforesaid sub-section also provides that the Ordinance does not affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed or recognised or derived by, in or from any enactment hereby repealed.
The aforesaid sub-section further provides that the repeal of the enactments by the Ordinance would not revive or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter of thing not now existing or in force. Section 4(2) of the Ordinance provides that the provisions of section 4 of the Kerala Interpretation and General W.A.Nos.2370 of 2016 & 169 of 2017 :: 6 ::
Clauses Act, 1125 shall be applicable in respect of the repeal of the enactments by this Ordinance. Section 4 of the Kerala Interpretation and General Clauses Act, 1125 reads thus:
"4. Effect of Repeal:- Where any Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed."
In the light of the aforesaid provisions in the Ordinance, it cannot be said that the repeal of the Act by the Ordinance was intended to operate only for a temporary period. The purpose of the Ordinance was only to repeal the obsolete enactments. Since the repeal of the Act by the Ordinance was intended to be for all times, the expiration of the Ordinance would not revive the Act.
7. The effect of an ordinance in the nature of the subject Ordinance introduced solely for the purpose of repealing the obsolete enactments has not been considered in D.C. Wadhwa v. State of Bihar, (supra), Seshasayee Paper and Boards Ltd. v. State of Kerala, (supra) and State of U.P. v. Dinkar Sinha, (supra) relied on by the learned counsel for the petitioners and as such, the said decisions may not have any application to the facts of this case.
The writ petitions are accordingly dismissed." W.A.Nos.2370 of 2016 & 169 of 2017 :: 7 ::
2. Therefore, the sum and substance of the findings rendered by the learned Single Judge is that the requirements of Article 213 of the Constitution dealing with power of Governor to promulgate ordinances during recess of the legislature need not be followed. The basic contention advanced by the appellants in the writ appeals is that the provisions of Article 213 of the Constitution are imperative in nature and since the procedure contemplated thereunder is not followed, the Ordinance ceased to have existed. Various other contentions are also raised by the appellants.
Learned counsel for the appellants have also brought to our notice the seven member Constitution Bench judgment of the Apex Court in Krishna Kumar Singh and another v. State of Bihar (2017) 3 SCC 1 wherein, the question of a temporary legislation and ceasing of the Ordinance was considered. It was categorically held therein that a temporary legislation is distinguishable from ordinances and power of legislature to enact temporary legislation flows from plenary power of the legislature to enact law; that legislature which has the competence to enact a law unrestricted by tenure is equally competent to enact a temporary legislation in which, it can convey a legislative intent that the rights or obligations which will be created will continue to subsist even upon its expiry by means of an appropriate saving clause. It was further held that the mandatory nature of laying of Ordinance W.A.Nos.2370 of 2016 & 169 of 2017 :: 8 ::
before legislature within six weeks of its reassembly, distinguished from requirement of laying of subordinate legislation before legislature concerned and held that a requirement of merely laying subordinate legislation before the legislature is normally directory. In respect of Article 213(2)(a), it was held that the Constitution postulates that an Ordinance would cease to operate upon the expiry of a period of six weeks of the reassembly of the legislature; 'Cease' means to stop, give over, discontinue, desist; to come to the end; to put an end to; to stop, to terminate or to discontinue. It was also held that the expression 'cease to operate' in Article 213(2)(a) is attracted in two situations. First is where a period of six weeks has expired since the reassembling of the legislature. The second situation is where a resolution has been passed by the legislature disapproving an Ordinance. After considering the intrinsic aspects with respect to the manner in which the validity of an Ordinance is to be considered, has held as follows:
"65. Article 213(2)(a) postulates that an Ordinance would cease to operate upon the expiry of a period of six weeks of the reassembly of the legislature. Oxford English Dictionary defines the expression "cease" as [Oxford English Dictionary (2nd Edn. Clarendon Press), p. 1014] : "to stop, give over, discontinue, desist; to come to the end". P. Ramanatha Aiyar's The Major Law Lexicon [The Major Law Lexicon (4th Edn., p. 1053)] defines the expression "cease" to mean "discontinue or put an end to". Justice C.K. Thakker's Encyclopaedic Law Lexicon [ Ashoka Law House, New Delhi (India), p. 879] defines the word "cease" as meaning: "to put an end to; to stop, to terminate or to discontinue". The expression has been defined in similar terms in Black's Law Dictionary [ 10th Edn., p. 268].
xxx xxx xxx xxx
82. What then is the effect upon rights, privileges, obligations or liabilities which arise under an Ordinance which ceases to operate? There are two W.A.Nos.2370 of 2016 & 169 of 2017 :: 9 ::
critical expressions in Article 213(2) which bear a close analysis. The first is that an Ordinance "shall have the same force and effect" as an act of the legislature while the second is that it "shall cease to operate" on the period of six weeks of the reassembling of the legislature or upon a resolution of disapproval. The expression "shall have the same force and effect" is prefaced by the words "an Ordinance promulgated under this Article". In referring to an Ordinance which is promulgated under Article 213, the Constitution evidently conveys the meaning that in order to have the same force and effect as a Legislative enactment, the Ordinance must satisfy the requirements of Article 213. Moreover, the expression "shall have the same force and effect" is succeeded by the expression "but every such Ordinance..." shall be subject to what is stated in sub-clauses (a) and
(b). The preconditions for a valid exercise of the power to promulgate as well as the conditions subsequent to promulgation are both part of a composite scheme. Both sets of conditions have to be fulfilled for an Ordinance to have the protection of the "same force and effect" clause.
Once the deeming fiction operates, its consequence is that during its tenure, an Ordinance shall operate in the same manner as an act of the legislature. What is the consequence of an Ordinance ceasing to operate by virtue of the provisions of Article 213(2)(a)? There are two competing constructions which fall for consideration. The expression "shall cease to operate" can on the one hand be construed to mean that with effect from the date on which six weeks have expired after the reassembling of the legislature or upon the disapproval of the Ordinance, it would cease to operate from that date. "Cease" to operate in this sense would mean that with effect from that date, the Ordinance would prospectively have no operation. The Ordinance is not void at its inception. The second meaning which can be considered for interpretation is that the expression "shall cease to operate" will mean that all legal consequences that arose during the tenure of the Ordinance would stand obliterated. According to the second construction, which is wider than the first, the consequence of an Ordinance having ceased to operate would relate back to the validity of an Ordinance.
xxx xxx xxx xxx
90. An ordinance which has ceased to operate is not void. As an instrument, it is not still-born. During the tenure of the ordinance, it has the same force and effect as a law enacted by the legislature.
91. Significantly, the expression "cease to operate" in Article 213(2)
(a) applies both to an ordinance whose tenure expires after the prescribed period as well as in relation to an ordinance which is disapproved by the legislature. The content of the expression cannot, hence, mean two separate things in relation to the two situations. The issue which needs elaboration is whether an Ordinance, which by its very nature has a limited life, can bring about consequences for the future (in terms of the creation of rights, W.A.Nos.2370 of 2016 & 169 of 2017 :: 10 ::
privileges, liabilities and obligations) which will enure beyond the life of the Ordinance. In deciding this issue, the court must adopt an interpretation which furthers the basic constitutional premise of legislative control over Ordinances. The preservation of this constitutional value is necessary for parliamentary democracy to survive on the sure foundation of the Rule of law and collective responsibility of the executive to the legislature. The silences of the Constitution must be imbued with substantive content by infusing them with a meaning which enhances the rule of law. To attribute to the executive as an incident of the power to frame ordinances, an unrestricted ability to create binding effects for posterity would set a dangerous precedent in a parliamentary democracy. The court's interpretation of the power to frame Ordinances, which originates in the executive arm of Government, cannot be oblivious to the basic notion that the primary form of law making power is through the legislature. Hence, the interpretation which the court places on the Ordinance making power must be carefully structured to ensure that the power remains what the Framers of our Constitution intended it to be: an exceptional power to meet a constitutional necessity.
92. We have already expressed our reasons for coming to the conclusion that the basic foundation upon which the decision of the Constitution Bench in Bhupendra Kumar Bose rested is erroneous. The Constitution Bench equated an ordinance with a temporary act enacted by the competent legislature. This approach, with respect, fails to notice the critical distinction between an enactment of a competent legislature and an Ordinance. The constitutional power of promulgating Ordinances is carefully conditioned by the requirements spelt out in Articles 123 and 213. The power is subject to limitations both of a durational and supervisory character. The intent of the Framers of the Constitution, as reflected in the text of Article 123 and Article 213, is to subject the Ordinance-making power to Parliamentary control. The enduring rights theory which was accepted in the judgment in Bhupendra Kumar Bose was extrapolated from the consequences emanating from the expiry of a temporary Act. That theory cannot be applied to the power to frame Ordinances. Acceptance of the doctrine of enduring rights in the context of an Ordinance would lead to a situation where the exercise of power by the Governor would survive in terms of the creation of rights and privileges, obligations and liabilities on the hypothesis that these are of an enduring character. The legislature may not have had an opportunity to even discuss or debate the Ordinance (where, as in the present case, none of the Ordinances was laid W.A.Nos.2370 of 2016 & 169 of 2017 :: 11 ::
before the legislature); an Ordinance may have been specifically disapproved or may have ceased to operate upon the expiry of the prescribed period. The enduring rights theory attributes a degree of permanence to the power to promulgate Ordinances in derogation of parliamentary control and supremacy. Any such assumption in regard to the conferment of power would run contrary to the principles which have been laid down in S.R. Bommai. The judgment in T. Venkata Reddy essentially follows the same logic but goes on to hold that if Parliament intends to reverse matters which have been completed under an ordinance, it would have to enact a specific law with retrospective effect. This, in our view, reverses the constitutional ordering in the regard to the exercise of legislative power.
93. The issue which confronts itself before the court is whether upon an Ordinance ceasing to operate, either as a result of its disapproval by the legislature or upon its expiry after the prescribed period of six months of the assembling of the legislature, all consequences that have ensued would necessarily stand effaced and obliterated. The judgment of Sujata Manohar, J. in the referring order in the present case adverted to the ambiguity inherent in the expression "permanent effect" and "rights of an enduring character". The Bench consisting of Justice Sujata Manohar and Justice D.P. Wadhwa, JJ. being a Bench of two learned Judges, was confronted with the binding effect of the decisions of the two Constitution Benches in Bhupendra Kumar Bose and T. Venkata Reddy. Within the framework provided by the two binding precedents, Sujata Manohar, J. held that the effect of an Ordinance can be considered as permanent when it is irreversible or when it would be "highly impractical or against public interest to reverse it". A threefold test has been laid down: the first is of the irreversibility of effect; the second, the impracticality of reversing a consequence which has ensued under the Ordinance and the third, is the test of public interest. The principle which we will lay down is not constrained by the two Constitution Bench decisions which propounded the enduring rights theory, once we have held that the theory has been incorrectly lifted from the context of a temporary law and applied to the Ordinance-making power.
94. The judgment of Sujata Manohar, J. does indicate (as one commentator on the subject States), that the learned Judge "is 28 willing to engage in some form of heightened scrutiny" . Yet, the W.A.Nos.2370 of 2016 & 169 of 2017 :: 12 ::
three-fold test of irreversibility, impracticality or public interest may, if broadly applied, cover almost every situation where an Ordinance has ceased to operate. A demolition may have been effected. An order of conviction may have been passed upon a trial. An acquisition of an industrial undertaking may be made. Large- scale regularisation of contractual or casual employees may be effected. Legalisation of unauthorised structures may be made. A myriad different situations can be contemplated. Must every action under an Ordinance produce binding rights, obligations and liabilities which will survive its demise? In our view, in determining the issue the over-arching consideration must be the element of public interest or constitutional necessity. Ultimately, it is this element of public interest which would have guided the Court in Bhupendra Kumar Bose in holding that the validation of an election by an Ordinance should not be set at naught (though the logic adopted by the court was flawed). Bhupendra Kumar Bose also raises troubling aspects independently on its facts because in that case a Bill which was moved before the State Legislature to incorporate provisions similar to those of the Ordinance was defeated. Be that as it may, in deciding to mould the relief, the effort of the Court would be to determine whether undoing what has been done under the Ordinance would manifestly be contrary to public interest. Impracticality and irreversibility in that sense are aspects which are subsumed in the considerations which weigh in the balance while deciding where public interest lies. Impracticality cannot by itself be raised to an independent status because it would then be simple enough for the executive to assert the supposed complexities in undoing the effects of an Ordinance. Since the basic constitutional value which is at issue is of parliamentary supremacy and control, the moulding of relief can be justified in cases involving grave elements of public interest or constitutional necessity demonstrated by clear and cogent material.
L. Laying of ordinances before the legislature
95. Article 213(2)(a) requires an Ordinance to be laid before the State Legislature. A similar requirement is contained in Article 123(2)(a). Neither Article 123 nor Article 213 specifically provide for when an Ordinance should be laid before the legislature upon its reassembling. The position in relation to Parliament is set out by Subhash C. Kashyap, in his work titled "Parliamentary Procedure-
29Law, Privileges, Practice and Precedents ." Rule 71 which the W.A.Nos.2370 of 2016 & 169 of 2017 :: 13 ::
author extracts is as follows:
"71. Statement regarding Ordinances-(1) Whenever a Bill seeking to replace an Ordinance with or without modification is introduced in the House, there shall be placed before the House along with the Bill a statement explaining the circumstances which had necessitated immediate legislation by Ordinance.
(2) Whenever an Ordinance, which embodies wholly or partly or with modification the provisions of a Bill pending before the House is promulgated a statement explaining the circumstances which had necessitated immediate legislation by Ordinance shall be laid on the Table at the commencement of the session following the promulgation of the Ordinance." (Emphasis supplied) The procedure of Parliament (see Kashyap supra) is that where on the first day of the session, the House is to adjourn after obituary references, Ordinances are laid on the table on the following day's sitting. Normally, Ordinances promulgated by the President are laid on the table on the first sitting of the House after the promulgation.
96. The Rules of Procedure and Conduct of Business in the Bihar Vidhan Sabha contain a provision in Rule 140 which indicates that copies of the Ordinance have to be made available to Members of the Legislative Assembly "as soon as possible" after the Governor has promulgated an Ordinance. Within a period of six weeks of the legislature reassembling (that being the period during which the ordinance will continue to operate) any Member may move a resolution approving the Ordinance with a notice of three days.
97. The importance of tabling an Ordinance before the legislature is that it enables the Legislature to act in furtherance of its constitutional power of supervision and control. The legislature is entitled to determine whether an ordinance should be disapproved. The need for and expediency of issuing an Ordinance can be discussed and debated by the legislature. The Government which is accountable to and bears collective responsibility towards the legislature may bring a Bill along the lines of the Ordinance (or with such modifications as are considered appropriate) before the legislature in which event, the Bill can be debated upon and discussed before a vote is taken. The Ordinance making power is not a parallel source of legislation. Promulgated at a time when the legislature is not in session, the constitutional process involved W.A.Nos.2370 of 2016 & 169 of 2017 :: 14 ::
postulates an intersection between the exercise of the Ordinance making power with the constitutional authority of the legislature over an Ordinance which has been promulgated by the President or the Governor.
98. The failure to place an Ordinance before the legislature constitutes a serious infraction of a constitutional obligation which the executive has to discharge by placing the Ordinance before the legislature. The laying of an Ordinance facilitates the constitutional process by which the legislature is enabled to exercise its control. Failure to lay an Ordinance before the legislature amounts to an abuse of the constitutional process and is a serious dereliction of the constitutional obligation. In the case of delegated legislation, Parliamentary or State enactments may provide a requirement of laying subordinate legislation before the legislature. It is well-settled that a requirement of merely laying subordinate legislation before the House of the legislature is directory. But where a disapproval of subordinate legislation is contemplated, such a requirement is mandatory. In Quarry Owners' Association v. State of Bihar this Court held: (SCC pp.689-91, paras 45 & 48) "45. .....Laying before the Houses of Parliament is done in three different ways. Laying of any rule may be subject to any negative resolution within a specified period or may be subject to its confirmation. This is spoken of as negative and positive resolution respectively. Third may be mere laying before the House. In the present case, we are not concerned with either the affirmative or negative procedure but consequence of mere laying before the legislature.
48. .....Even if submission for the appellants is accepted that mere placement before a House is only for information, even then such information, inherently in it makes the legislature to play an important role as aforesaid for keeping a check on the activity of the State Government. Such placement cannot be construed to be non est. No act of Parliament should be construed to be of having no purpose. As we have said, mere discussion and questioning the Ministry concerned or authority in the House in respect of such laying would keep such authority on guard to act with circumspection which is a check on such authority, especially when such authority is even W.A.Nos.2370 of 2016 & 169 of 2017 :: 15 ::
otherwise answerable to such legislature. (Id at p. 689)
99. The requirement of an Ordinance being laid before the legislature cannot be equated with the laying of subordinate legislation. An Ordinance is made in the exercise of the legislative power of the Governor which is subordinate to and not a stream which runs parallel to the power of law making which vests in the State Legislatures and Parliament. Any breach of the constitutional requirement of laying an ordinance before the legislature has to be looked upon with grave constitutional disfavour. The Constitution uses the expression "cease to operate" in the context of a culmination of a duration of six weeks of the reassembling of the legislature or as a result of a resolution of disapproval. The Framers introduced a mandatory requirement of an Ordinance being laid before the legislature upon which it would have the same force and effect as a law enacted by the legislature, subject the condition that it would cease to operate upon the expiry of a period of six weeks of the reassembling of the legislature or earlier, if a resolution of disapproval were to be passed. The 'cease to operate' provision is hence founded on the fundamental requirement of an Ordinance being placed before the legislature. If the executive has failed to comply with its unconditional obligation to place the Ordinance before the legislature, the deeming fiction attributing to the ordinance the same force and effect as a law enacted by the legislature would not come into existence. An Ordinance which has not been placed before the legislature at all cannot have the same force and effect as a law enacted and would be of no consequence whatsoever.
100. The Constitution has not made a specific provision with regard to a situation where an Ordinance is not placed before a legislature at all. Such an eventuality cannot be equated to a situation where an Ordinance lapses after the prescribed period or is disapproved. The mandate that the Ordinance will cease to operate applies to those two situations. Not placing an Ordinance at all before the legislature is an abuse of constitutional process, a failure to comply with a constitutional obligation. A Government which has failed to comply with its constitutional duty and overreached the legislature cannot legitimately assert that the Ordinance which it has failed to place at all is valid till it ceases to operate. An edifice of rights and obligations cannot be built in a constitutional order on acts which amount to a fraud on power. This will be destructive of the Rule of law. Once an Ordinance has been placed before the legislature, the W.A.Nos.2370 of 2016 & 169 of 2017 :: 16 ::
constitutional fiction by which it has the same force and effect as a law enacted would come into being and relate back to the promulgation of the Ordinance. In the absence of compliance with the mandatory constitutional requirement of laying before the legislature, the constitutional fiction would not come into existence. In the present case, none of the ordinances promulgated by the Governor of Bihar were placed before the State Legislature. This constituted a fraud on the constitutional power. Constitutionally, none of the Ordinances had any force and effect. The noticeable pattern was to avoid the legislature and to obviate legislative control. This is a serious abuse of the constitutional process. It will not give rise to any legally binding consequences.
M. Repromulgation in the present case
101. The judgment of the Constitution Bench in D.C. Wadhwa was delivered on 20-12-1986. The Constitution Bench made it clear, as a matter of constitutional principle, that the executive cannot subvert the democratic process by resorting to a subterfuge of re-
promulgating Ordinances. The Constitution Bench held that it would be a colorable exercise of power for Government to ignore the legislature and to repromulgate Ordinances. Perhaps there is justification in the critique of the judgment that the Constitution Bench ultimately left the matter (having invalidated one of the Bihar Ordinances which still held the field) to an expression of hope which read thus: (SCC p.395, para 7) "7.....we hope and trust that such practice shall not be continued in the future and that whenever an Ordinance is made and the Government wishes to continue the provisions of the Ordinance in force after the reassembling of the legislature, a Bill will be brought before the legislature for enacting those provisions into an act. There must not be Ordinance-Raj in the country.
102. The Constitution Bench carved out an exception where an Ordinance may have to be repromulgated by the Governor where it has not been possible for Government to introduce and push through in the legislature a Bill containing the same provisions as an Ordinance because of an excess of legislative business for a particular session. This exception has been criticized on the ground that however pressing is the existing legislative business, it lies in the discretion of the Government to seek an extension of the W.A.Nos.2370 of 2016 & 169 of 2017 :: 17 ::
legislative session for converting an Ordinance into an enactment of the legislature. Moreover, it has been questioned as to whether a repromulgated Ordinance would meet the basic constitutional requirement of the existence of circumstances bearing upon the satisfaction of the Governor on the need to take immediate action. Be that as it may, it is not the case of the State of Bihar in the present case that there was any reason or justification to continue with a chain of Ordinances nor is there any material before the court to indicate exceptional circumstances involving a constitutional necessity.
103. The two learned Judges (Sujata Manohar and Wadhwa, JJ.) agreed in coming to the conclusion that the ordinances which were issued after the first would amount to a fraud on constitutional power. They however differed in regard to the validity of the first Ordinance. Sujata Manohar, J. held that all the Ordinances formed a part of a chain of acts designed to nullify the scheme of Article 213. In this view, each of the Ordinances took colour from one another, notwithstanding some departures in the scheme of the fourth and subsequent Ordinances. The entire exercise was held to be a fraud on the power conferred by Article 213 since the executive had no intention of placing any of the Ordinances before the legislature. Wadhwa, J., on the other hand, took the view that the effect of the first ordinance was of an enduring nature and held that what the first Ordinance ordained was accomplished and its effect was irreversible. In this view, the Ordinance was like a temporary law which had accomplished its purpose. Wadhwa, J. held that once the property has vested in the State, there had to be an express legislation taking away vested rights. The conferment of rights on the employees was held to be of an enduring character which could not be taken away merely because the Ordinance, like a temporary statute ceased to operate.
104. We have already adduced reasons earlier for overruling the enduring rights theory based on the analogy of a temporary statute. Moreover, as we have indicated, it would not be correct to assert that these enduring rights could be set at naught only by an Act of the legislature enacted with retrospective effect. The basic infirmity is that none of the Ordinances, including the first, was laid before the legislature. There was a fundamental breach of a mandatory constitutional requirement. All the Ordinances formed a part of one composite scheme by which the Governor of Bihar promulgated and repromulgated Ordinances. That chain or link commenced from the W.A.Nos.2370 of 2016 & 169 of 2017 :: 18 ::
promulgation of the first Ordinance. Hence, in the very nature of things it would not be possible to segregate the first Ordinance since it forms an intrinsic part of a chain or link of Ordinances each of which and which together constitute a fraud on constitutional power.
3. After finding so, it was held as follows by the majority:
N. Conclusion
105. In summation, the conclusions in this judgment are as follows:
105.1 The power which has been conferred upon the President Under Article 123 and the Governor Under Article 213 is legislative in character. The power is conditional in nature: it can be exercised only when the legislature is not in session and subject to the satisfaction of the President or, as the case may be, of the Governor that circumstances exist which render it necessary to take immediate action;
105.2 An Ordinance which is promulgated under Article 123 or Article 213 has the same force and effect as a law enacted by the legislature but it must (i) be laid before the legislature; and (ii) it will cease to operate six weeks after the legislature has reassembled or, even earlier if a resolution disapproving it is passed. Moreover, an Ordinance may also be withdrawn;
105.3 The constitutional fiction, attributing to an Ordinance the same force and effect as a law enacted by the legislature comes into being if the Ordinance has been validly promulgated and complies with the requirements of Articles 123 and 213;
105.4 The Ordinance-making power does not constitute the President or the Governor into a parallel source of law-making or an independent legislative authority;
105.5 Consistent with the principle of legislative supremacy, the power to promulgate Ordinances is subject to legislative control. The President or, as the case may be, the Governor acts on the aid and advice of the Council of Ministers which owes collective responsibility to the legislature;
105.6 The requirement of laying an Ordinance before Parliament or W.A.Nos.2370 of 2016 & 169 of 2017 :: 19 ::
the State Legislature is a mandatory constitutional obligation cast upon the Government. Laying of the Ordinance before the legislature is mandatory because the legislature has to determine:
(a) The need for, validity of and expediency to promulgate an ordinance;
(b) Whether the Ordinance ought to be approved or disapproved;
(c) Whether an Act incorporating the provisions of the Ordinance should be enacted (with or without amendments);
105.7 The failure to comply with the requirement of laying an ordinance before the legislature is a serious constitutional infraction and abuse of the constitutional process;
105.8 Re-promulgation of ordinances is a fraud on the Constitution and a sub-version of democratic legislative processes, as laid down in the judgment of the Constitution Bench in D C Wadhwa;
105.9 Article 213(2)(a) provides that an Ordinance promulgated under that Article shall "cease to operate" six weeks after the reassembling of the legislature or even earlier, if a resolution disapproving it is passed in the legislature. The Constitution has used different expressions such as "repeal" (Articles 252, 254, 357, 372 and 395);
"void" (Articles 13, 245, 255 and 276); "cease to have effect" (Articles 358 and 372); and "cease to operate" (Articles 123, 213 and 352). Each of these expressions has a distinct connotation. The expression "cease to operate" in Articles 123 and 213 does not mean that upon the expiry of a period of six weeks of the reassembling of the legislature or upon a resolution of disapproval being passed, the Ordinance is rendered void ab initio. Both Articles 123 and 213 contain a distinct provision setting out the circumstances in which an Ordinance shall be void. An Ordinance is void in a situation where it makes a provision which Parliament would not be competent to enact (Article 123(3)) or which makes a provision which would not be a valid if enacted in an Act of the legislature of the State assented to by the Governor (Article 213(3)). The Framers having used the expressions "cease to operate"
and "void" separately in the same provision, they cannot convey the same meaning;
105.10 The theory of enduring rights which has been laid down in the judgment in Bhupendra Kumar Bose and followed in T Venkata Reddy by the Constitution Bench is based on the analogy of a temporary enactment. There is a basic difference between an W.A.Nos.2370 of 2016 & 169 of 2017 :: 20 ::
Ordinance and a temporary enactment. These decisions of the Constitution Bench which have accepted the notion of enduring rights which will survive an Ordinance which has ceased to operate do not lay down the correct position. The judgments are also no longer good law in view of the decision in S.R. Bommai;
105.11 No express provision has been made in Article 123 and Article 213 for saving of rights, privileges, obligations and liabilities which have arisen under an ordinance which has ceased to operate. Such provisions are however specifically contained in other articles of the Constitution such as Articles 249(3), 250(2), 357(2), 358 and 359(1A).
This is, however, not conclusive and the issue is essentially one of construction; of giving content to the 'force and effect' clause while prescribing legislative supremacy and the rule of law;
105.12 The question as to whether rights, privileges, obligations and liabilities would survive an Ordinance which has ceased to operate must be determined as a matter of construction. The appropriate test to be applied is the test of public interest and constitutional necessity. This would include the issue as to whether the consequences which have taken place under the Ordinance have assumed an irreversible character. In a suitable case, it would be open to the court to mould the relief; and 105.13 The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review particularly after the amendment brought about by the forty-fourth amendment to the Constitution by the deletion of clause 4 in both the Articles. The test is whether the satisfaction is based on some relevant material. The court in the exercise of its power of judicial review will not determine the sufficiency or adequacy of the material. The court will scrutinise whether the satisfaction in a particular case constitutes a fraud on power or was actuated by an oblique motive. Judicial review in other words would enquire into whether there was no satisfaction at all."
4. It is clear from the judgment of the Apex Court that the judgment relied upon by the learned Single Jude to dismiss the writ petitions were overruled by the apex court. Even though the learned Senior Government Pleader has advanced a contention that by virtue of paragraph 105.12 arrived W.A.Nos.2370 of 2016 & 169 of 2017 :: 21 ::
at by the Apex Court the ordinance which repealed the Malabar Land Registration Act 1895 does not require to undergo the ordeal prescribed under Article 213 of the Constitution of India. We are unable to agree with the same since the Apex Court in unequivocal terms in Krishna Kumar Singh's case (supra) has held that the policies and principles require the procedure contained under Article 213 is to be mandatorily followed. In order to have a proper appreciation, we herewith extract Article 213 of the Constitution of India:
"Article 213 in The Constitution Of India 1949
213. Power of Governor to promulgate Ordinances during recess of Legislature--
(1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require:
Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if--
(a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or
(b) he 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 of the President, it had received the assent of the President (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Legislature of the State assented to by the W.A.Nos.2370 of 2016 & 169 of 2017 :: 22 ::
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 reassembly 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 Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes 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 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."
5. We have heard Adv.V.R.K.Kaimal and Adv.P.M.Poulose for the appellants and learned Senior Government Pleader Sri.Tekchand for the respondents.
6. An elaborate discussion in the matter is not required since in our considered opinion the proposition of law laid down by seven member Constitution Bench of the Apex Court in Krishnakumar Singh's case (supra) W.A.Nos.2370 of 2016 & 169 of 2017 :: 23 ::
would squarely apply to the facts and circumstances of the case. Article 213 of the Constitution also makes it clear that when an ordinance is issued it will have to undergo the mandatory requirements contained under Article 213 of the Constitution of India. Merely because the Act in question was said to be repealed within the period prescribed under Article 213 that would not take away the mandates of Article 213 in order to make the ordinance valid for all practical purposes. Admittedly, the writ petitioners have submitted the applications before the statutory authority after the period prescribed under Article 213 of the Constitution of India. On a query raised by us, learned Senior Government Pleader after receiving due instructions, submitted before us that the ordinance was not placed before the legislative assembly at all, in contemplation of Article 213 of the Constitution of India. Therefore the ordinance in question ceased to have force vis - a - vis the Act 1895.
7. Taking into account the above legal and factual circumstances, we are of the opinion that interference is required to the judgment of the learned Single Judge. The principles of law laid down by the Constitution Bench in Krishnakumar Singh's case (supra) has to be followed being a law declared by the Apex Court.
8. Accordingly, the writ appeals are allowed, the Judgment of the learned Single Judge and the impugned orders passed by the statutory W.A.Nos.2370 of 2016 & 169 of 2017 :: 24 ::
authority specifically referred to above are set aside and consequentially, there will be a direction to the competent among the respondents to reconsider the respective applications submitted by the appellants in accordance with the Malabar Land Registration Act, 1895, and in accordance with law at the earliest and at any rate within three months from the date of receipt of a copy of this judgment, after providing an opportunity of hearing and participation to the appellants. However we make it clear that we have considered the question of the validity of the ordinance only in respect of the Act 1895.
SD/-
S.MANIKUMAR CHIEF JUSTICE SD/-
SHAJI P. CHALY JUDGE jes