Karnataka High Court
C. Narayanaswamy And Others, Etc. vs State Of Karnataka And Another on 11 March, 1991
Equivalent citations: AIR1992KANT28, 1991(2)KARLJ58, AIR 1992 (NOC) 28 (KAR), (1991) 2 KANT LJ 58 (1992) 1 KANT LJ 177, (1992) 1 KANT LJ 177
ORDER Shivashankar Bhat, J.
1. These writ petitions are by a few of the Adhyakshas and Upadhyakshas of Zilla Parishads challenging the validity of the Karnataka Ordinance No. 2 of 1991 promulgated on 1st February, 1991. By this Ordinance Sec. 167 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (for short, 'the Act') was amended by deleting the words "not less than two-thirds of found in sub-section (3) thereof. By this amendment the Adhyakshas and Upadhyakshas of Zilla Parishads could be removed by a resolution passed by a simple majority of the members instead of the earlier requirement of two-
thirds majority.
2. The Act was enacted in the year 1983, but it was enforced in the year 1985. Various local governments were constituted underthe Act such as Mandal Panchayats (for the villages), Taluk Panchayat Santithis at the Taluk level and Zilla Parishads for the District level, excepting the areas covered by the Town Municipalities and City Corporations. The members of the Zilla Parishad are substantially elected by the voters directly. However, members of the Slate Legislature arc also treated as members. The members of the Zilla Parishad elect the Adhyaksha and Upadhyakshas. The election is based on the highest polled amongst the candidates, who contest for the office of Adhyaksha and Upadhyaksha. They are to be the members of the concerned Zilla Parishad. Section 168 of the Act states that Adhyaksha shall be the executive head of the Zilla Parishad and shall perform all the duties imposed and exercise the powers conferred on the Adhyakasha under the Act and the Rules made thereunder. Sec. 169 enumerates the powers of Upadhyaksha. As per S. 170 the Zilla Parishad shall hold a meeting at least once in every month. The Zilla Parishad has considerable powers in the matter of administering welfare legislations and its functions are enumerated in Chapter IX of the Act. There is a Chief Secretary to the Zilla Parishad, who shall be an officer not below the rank of a Dy. Commissioner. There were various other officers attached to the Zilla Parishad.
3. Under S. 167 provision is made for the resignation or removal of Adhyaksha and Upadhyakasha. This includes a power in the government to remove an Adhyaksha or Upadhyaksha from his office for misconduct in the discharge of the duties etc., after affording an opportunity to the concerned office holder. On such removal, the person shall not be eligible for re-election during the term of office of the members of such Zilla Parishad. Under sub-section (3) of S. 167 these office holders arc deemed to have vacated the office forthwith if a resolution expressing want of confidence is passed by a majority of not less than two-thirds of the total number of members of the Zilla Parishad at a meeting specially convened for the purpose. It is this requirement of two-thirds is now altered to make it a simple majority.
4. According to the petitioners, the present incumbents were elected to the respective offices at a time when the Janata Party Dal had majority in most of the Zilla Parishads. However, after the recent election to the Legislative Assembly, the Janata Party tost to the Congress-I Party and the number of members of the State legislators in every District belonging to the Congress-1 became numerically strong and this tilted the balance even in the Zilla Parisad in favour of the Congress-I party; however, the Congress-I has not secured such a majority as to command two-thirds of the members of the Zilla Parishad to dislodge the existing Adhyakshas and Upadhyakshas. In many of the cases, the Congress-I has a simple majority. Therefore, if the law is amended enabling the removal by resolution passed by a simple majority, the Congress--I would dislodge most of the Adhyakshas and Upadhyakshas and in their respective places. Adhyakshas and Upadhyakshas will be elected duly chosen by the Congress-I. According to the petitioners, this is the motivating factor that persuaded the council of Ministers to advice the Governor to promulgate the Ordinance in question under Art. 213 of the Constitution of India. The petitioners assert that already a Bill has been introduced in the legislature to amend the provisions of the Act in several aspects and the said Bill No. 25 of 1990 was int roduced on 27th November, 1990. The legislature is seized of the matter. The amendment proposed includes amendment of the provisions to enable the removal of Mandal Pradhans also under similar circumstances. The Assembly adjourned on 27th December, 1990. When the Bill was still pending. On 8th January 1991 the Governor prorogued the Assembly under Art. 174 of the Constitution and within a few days the impugned Ordinance was promulgated on 1st February, 1991.
5. The contentions of the petitioners may be summarised as follows :--
(1) The impugned Ordinance is invalid because the condition precedent for the exercise of the power under Art. 213 did not exist; in other words, there were no circumstances, existence of which were necessary for the Governor to be satisfied that it is necessary for him to take immediate action by promulgating the Ordinance.
(2) The exercise of the power in promulgating the ordinance is a colourable exercise of the power.
(3) The action in promulgating the Ordinance is vitiated by mala fides.
(4) The Bill having already been introduced in the State legislature and again the Assembly has been summoned to meet on 1st March 1991 and the Bill is likely to be considered by the Assembly again, there was no urgency to promulgate the Ordinance and at any rate, power under Art. 213 cannot be exercised in such a situation.
(5) The very action of the Governor in promulgating the Ordinance violates Art. 14 of the Constitution.
(6) The provisions of the Ordinance are violative of Art. 14 and hence void.
6. The 2nd respondent to the writ petitions is the Minister for Rural Development and Panchayat Raj. His bona fides are challenged and it has been urged by the petitioners that he is responsible for the Ordinance and his alleged apathy towards the Zilla Parishads and their Chiefs were projected in the writ petitions and a few Annexures. The 2nd respondent has filed his statement of objections, denying the allegations made against him and pointed out that the Ordi-nance is the result of advice tendered to the Governor by the Cabinet and there was unanimity in the cabinet in this regard. (vide para 8 of the affidavit of the 2nd respondent). In the said para, the 2nd respondent has asserted that the proposed amendments to the Act had the backing of the majority party in the legislature and the cabinet unanimously approved the same. It is not necessary to traverse the various allegations against the 2nd respondent and the statements in the allidavit of the 2nd respondent because the challenge to the Ordinance on the ground of mala fides can succeed, if at all, by establishing the mala fides against the cabinet, i.e., the Council of Ministers. The advice tendered to the Governor is the advice of the Council of Ministers, and it is a collective decision of the Council of Ministers. To what extent the Court can examine the facts which were supposed to be the basis for the advice tendered to the Governor itself is a matter of considerable doubt, having regard to the provisions of Art. 163(3) of the Constitution.
7. In M/s. Doypack systems Pvt. Ltd. v. Union of India. MR I9SS SC 782 the Supreme Court while considering a similar provision under Art. 74(2) of the Constitution, held t hilt the question whether any and if so what advice was tendered by the Minister to the President shall not be enquired into in any court and the court is precluded from asking for production of these documents which led to the advice tendered. The privilege in this regard is a Constitutional privilege which cannot be waived. Consequently the Supreme Court observed at p. 798 :
"It is well to remember that it is duty of this Court to prevent disclosure where Article 74(2) is applicable. We are convinced that the notings of the officials which lead to the cabinet note leading to the cabinet decision formed part of the advice tendered to the President as the Act was preceded by an Ordinance promulgated by the President."
8. Except the political colour attributed to the advice tendered, no other personal motivation has been alleged against any other members of the cabinet and similarly no other motivation is attributed to the cabinet also. It is now well established that the promulgation of an ordinance by the Governor is according to the advice tendered by the Council of Ministers and if so, it is the collective decision of the cabinet and it cannot be said that the motive, if any, of one individual member of the cabinet can be attributed to the collective decision of the cabinet. Consequently this aspect of the petitioner's contention is rejected at the outset.
9. In the statement of objection filed by the State, it has raised a preliminary objection against the propriety of enquiring into the cxericise of the legislative power under Art. 213 of the Constitution. It is contended that no motive can be attributed to the legislature and this immunity attaches itself to the exercise of the power under Art. 213. It is further contended whether an elected officeholder should be removed by a simple majority or a larger majority is a matter of legislative policy and therefore the petitioners are precluded from questioning the merits of the Ordinance as unconstitutional. The statement of objections further states :
"The factual position in some of the Zilla Parishads is that the prescription of two-third majority for unseating the Adhyakshas who have no majority and no control over the functioning of the Zilla Parishads are continuing as Adhyakshas in personal interest as against the interest of the Zilla Parishads. Hence with a view to avoid such anomalous position in the interest of effective functioning of Zilla Parishads, the concept of simple majority has been introduced, which as mentioned above has always been applicable to legislative Assemblies and Parliament."
Again, in a subsequent para it is averred that,--
"In some of the Zilla Parishads, the Adhyakshas have lost the majority and the proposals moved by them are not being passed in the Zilla Parishad meetings. Thus the functioning of the Zilla Parishads in such cases has come to a standstill. However, the Adhyakshas are being still continued since there is no two-thirds majority to remove them through 'No confidence' motions. With a view to obviate this precarious situation and to make the Zilla Parishads function normally, the Ordinance has been issued."
The State has denied that circumstances did not exist for the promulgation of the Ordinance and asserted that the preconditions for the exercise of the power existed.
10. Since the question raised are substantially one of interpretation of the Constitutional provisions, it is not necessary to refer elaborately to the respective pleadings. The basic question pertains to the availability of the judicial power to examine the satisfaction of the Governor in promulgating the Ordinance under Art. 213. The petitioners have largely relied upon by the principles enunciated by the courts while testing the satisfaction and the circumstances leading to the satisfaction while exercising executive and quasi-judicial powers. The petitioners also have referred to a few decisions of the Supreme Court wherein observations are found regarding the availability of judicial power to probe into the satisfaction of the Governor under Art. 213. Before considering these various decisions, it is necessary to refer to the decision of the Supreme Court, which according to us is directly on the point and which has been referred in the statement of objection filed by the State.
11. In T. Venkata Rcddy v. State of Andhra Pradesh, posts of part-time village officers were abolished by an Ordinance. This Ordinance was challenged and one of the contentions was that the said Ordinance was void and ineffective due to lack of application of mind by the Governor to the subject-matter of the Ordinance. Justice E. S. Venkataramiah, J. (as he then was) speaking for the Constitution Bench traced the history of the relevant Article from the days of the Government of India Act 1915 as well as the Government of India Act 1935 and notice that the provisions of S. 88 of the Government of India Act 1935 was more or less in similar terms as in Art. 213 of the Constitution and then quoted the decision of the Federal Court in Lakhi Narayan Das v. Province of Bihar, AIR 1950 FC 59 and then concluded thus (at p. 731, Para 14 of AIR):
"While the courts can declare a statute unconstitutional when i( 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 motive of the legislature in passing the statute is beyond scrutiny, of courts. Nor the courts can examine whether the legislature had applied its mind to the provisions of the 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 of the courts. an Ordinance passed either under Art. 123 or under Art. 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 all its incidents, immunities and limitations under the Constitution. It cannot be treated as an executive action or an administrative decision."
(Underlining Is by us) In the above decision, the Supreme Court had referred to the earlier decisions of the same Court in R. K. Garg v. Union of India, AIR 1981 SC 2138 and A. K. Roy v. Union of India, also. The discussion in Venkata Reddy's case and the conclusion arrived at clearly establishes the principle that it is impermissible to strike down an Ordinance on the ground of non-application of mind or mala fides or that the prevailing circumstances did not warrant the issue of the Ordinance. The question posed by the Supreme Court was "in other words, the question is whether the validity of the Ordinance can be tested on grounds similar to those on which an executive or judicial action is tested ?" While answering this question one of the propositions laid down is quoted above.
12. The observations stated above are binding on us, though the learned counsel for the petitioners contended that these observations were just passing remarks. We cannot agree with this comment made by the learned counsel for the petitioners. The nature of the Ordinance making power and the scope of judicial scrutiny were directly involved in the above decision and therefore any reasoning leading to the ultimate conclusion on the question raised before the court is necessarily binding on us just as the ultimate conclusion. In fact in Lakhi Narayan Das's case, AIR 1950 FC 59, the question directly arose before the Federal Court in connection with the Ordinance issued under S. 88 of the Government of India Act. The language of S. 88 is similar to Art. 213 of the Constitution. The contention urged before the Federal Court was that no circumstances existed as is contemplated by S. 88 which couid justify the Governor in promulgating the ordinance (see at p. 61). The Federal Court said that this matter was not within the competence of courts to investigate. The observations of the Federal Court are :
"It is admitted that the Bihar Legislature was not in session when this Ordinance was passed. It was urged, however, in the court below, and the argument was repeated before us, that no circumstance existed as is contemplated by S. 88(1) which could justify the Governor in promulgating this Ordinance. This obviously is a matter which is not within the competence of Courts to investigate. The language of the section shows clearly that it is the Governor and the Governor alone who has got to satisfy himself as to the existence of circumstances necessitating the promulgation of an Ordinance. The existence of such necessity is not a justifiable matter which the Courts could be called upon to determine by applying an objective test. It may be noted here that under the Government of India Act the Governor General has powers to make Ordinance in case of emergency; vide S. 42, Government of India Act and S. 72 of Sch. IX which is now omitted); and it was held by the Privy Council in Emperor v. Bemoarilal, 72 , IA 57 : AIR 1945 PC 48 : 46 Cri LJ 589 and Bhagat Singh v. Emperor, 58 IA 169, AIR 1931 PC 111 : 32 Cri LJ 727 (PC) that the emergency which calls for immediate action has to be judged by the Governor General alone. On promulgating the 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 actually did 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 fust contention of the appellants must therefore be rejected."
The above observations of the Federal Court were repeated in Venkata Reddy's case and we have no doubt in our mind that the Supreme Court has accepted the above observations of the Federal Court as correctly reflecting the interpretation of the provision governing the Ordinance making power.
13. The learned counsel for the petitioners tried to pursuade us to take a view different from the above, for which purpose the Constitutional Law of India (Seervai) (3rd edition) (Vol. I) pages 820 etc., was referred wherein the eminent author has discussed the Supreme Court decision in A. K. Roy's case, concluded with his opinion that non-justiciability of the ordinance is "to allow a large section of our people's rights to be affected by what may turn out to be illegal executive action without redress can only be described as an unjustified abdication of judicial power, and all the more so because the ordinance before the court affected the liberty of the subject matter under a law of preventive detention." It was pointed out that this observation is in the context of the opening sentence in the said para-11.200, as "on the question whether President's satisfaction is subject to judicial review....".
14. We are bound by the decision of the Supreme Court. If there is a direct decision of the Supreme Court on any question, it is impermissible for the High Court to follow the opinion of any learned author, whatever his eminence be, ignoring the said decision. Further, if the Ordinance unconstitutionally encroaches on the fundamental rights of a subject, irrespective of the justiciability of the satisfaction of the executive leading to the Ordinance, said Ordinance is liable to be struck down. The question really would be, whether the Ordinance adversely and unconstitutionally affects the rights of a subject.
15. Any person in this country (citizen Or non-citizen) has his or its guaranteed rights, guaranteed under Part III of the Constitution. An Ordinance issued by due deliberation and in full bona fide exercise of the power (i.e., considering all relevant circumstances and eschewing irrelevant considerations), would still be liable to be struck down if the Ordinance offends any of the fundamental rights. However, if no fundamental right is affected and the subject matter of the Ordinance is within the legislative competence of the State (when the Ordinance is of the Governor), the Ordinance in reality does not affect anyone's guaranted rights, and the question of the justiciability of the satisfaction of the Governor under Art. 213 becomes irrelevant. When a law is promulgated by way of an Ordinance is challenged, the question to be posed at the out set ought to be, whether such a law offends any of the constitutional rights of the person challenging the ordinance. an unoffending ordinance has to be looked at as, constitutionally harmless and therefore, circumstances leading to the Governor's satisfaction under Art. 213 is a factor that need not be gone into.
16. The Ordinance may affect the petitioners' statutory rights and therefore, to that extent, it may be said, that the petitioners are entitled to challenge the validity of the exercise of the power in promulgating the Ordinance; to this extent justificability of the satisfaction under Art. 213 as to the circumstances calling for promulgation of the ordinance, may have to be considered, in the light of the various decisions of the Supreme Court.
17. Broadly State's powers are legislative, executive and judicial, and are vested in the three departments of the State. Exercise of each kind of power has its own limitations and characteristics; While mala fides vitiate an executive or a judicial order (because it is possible to allege and prove mala fides against the authority who makes these orders), no mala fides can be attributed to the legislation; therefore, question of alleging or proving existence of mala fides as leading to a particular legislation is impossible, (here, word 'legislature' does not cover any subordinate legislation). Having regard to the fact that the legislature cannot and is not always in session, Constitution has provided for promulgation of Ordinances to meet a sudden or urgent situation. The urgency or immediacy for the promulgation of the Ordinance is a matter for the law making authority which is equated to the legislature, to decide.
18. Courts cannot examine the propriety of the timing of a law enacted by the legislature; it is for the legislature to choose the appropriate time to enact a law; having enacted the law the legislature may entrust the power to select the point of time from which the law should be enforced, to the executive (the Government). In such a situation, no court can examine as to whether the legislature was justified in enacting the law at a particular point of time; in other words, the legislature is the sole judge to be satisfied of the circumstances for enacting the law. This exclusiveness in arriving at its own satisfaction, by the legislature has been recognised as available to the Governor also, while promulgating the Ordinance.
19. It is true, Art. 245 does not say that the legislature or Parliament may enact a law if it is satisfied that circumstances exist for enacting a particular law. But existence of such a circumstance is presumed to exist always. Constitution has thought it fit that the Governor should have an overall power to make a law by promulgating an Ordinance and while promulgating an Ordinance, the Governor acts as the legislature itself; the phraseology of Art. 213(2) is to declare an Ordinance to have the "same force and effect" as an Act of the legislature. If circumstances leading to the satisfaction while promulgating an ordinance is justiciable, the efficacy of the ordinance would not be of the same character and quality as of an Act of the legislature. The justiciability of the satisfaction would dilute the "force and effect" when compared to the Act of the legislature. The pharase "force and effect" is of wider connotation, giving the Ordinance all the attributes of the Act of legislature, including the background leading to its making. If the background (i.e., the circumstances) leading to the legislature's Satisfaction is non-justiciable, and thereby in that regard the "force and effect" of the Act cannot be limited or nullified, a similar immunity should attach itself to the ordinance also.
That seems to be the ratio behind the decision of the Federal Court and of the Supreme Court referred to above already.
20. State of Rajastan v. Union of India, was heavily relied to contend that arriving at the "satisfaction" resulting in the exercise of the power is justiciable. The observations of the several Judges in the said court are extracted by a Special Bench (Full Bench) of this Court in S. R. Bommai v. Union of India, . At p. 2459 (of ILR) : (at p. 18 of AIR) the Special Bench (Full Bench) has stated the ratio in Rajastan decision to be thus :
(1) Proclamation issued under Article 356(1) of the Constitution is not wholly outside the pale of judicial scrutiny.
(2) The satisfaction of the President under Article 356(1) which is a condition precedent for issue of proclamation, should be a real and genuine satisfaction based on relevant facts and circumstances.
(3) Though the satisfaction to be reached under Article 356(1) may be subjective, if such satisfaction reached was on the basis of material or the reasons which had no nexus to the satisfaction envisaged in Article 356 or if the materials disclosed or reasons given are wholly extraneous to the formation of such satisfaction, the proclamation itself would be unconstitutional.
(4) The scope of judicial scrutiny shall be confined to an examination whether the disclosed reasons hear any rational nexus to the action proposed or proclamation issued. However, courts may examine as to whether the proclamation was based on a satisfaction which was mala fide for any reason (subject to the limitations inherent in the power as to the materials from which inference of mala fide can be derived). Only if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the courts would have jurisdiction to examine it because, only in such a situation the stated satisfaction of the President would not be a satisfaction in the constitutional sense under Article 356."
From these observations, the learned counsel developed their contention, that the promulgation of the Ordinance on the alleged satisfaction as to the existence of circumstances, in the instant ease, cannot stand the judicial scrutiny and the circumstances relied upon in the statement of objections are extraneous and the Governor ignored relevant circumstances.
21. Under Article 356(1), if the President..... "is satisfied that a situation has arisen in which the government of the State cannot be carried....." the President may issue the requisite proclamation. The language is compared with Art. 213, wherein it says that "if the.....Governor is satisfied that circumstances exist which render it necessary for him to take immediate action.....he may promulgate an ordinance". The key word is the 'satisfaction' of the President or the Governor; if the satisfaction under Art. 356 could be the subject matter of judicial scrutiny the 'satisfation' under Art. 213 also could be scrutinised for the relevancy of the circumstances leading to such a satisfaction -- this was the line of arguments. A vast number of decisions arising under Administrative law were cited to persuade the court to examine the validity of such a satisfaction. Starting with Barium Chemicals case, and Rohtas Industries case, (apart from other Indian decisions) the voyage of citations took us to English law, that emanated from Padfield, (1968) 1 All ER 694 (HL); Tameside, (1976) 3 All ER 665; Wade, De' Smith, etc.
22. However, the question is whether, we are free to apply these principles enunciated in the context of the exercise of executive or quasi-judicial powers, to the instant case, wherein the context is entirely the exercise of legislative power vested in the executive. If the examination of the exercise of a purely legislative power by the executive is to be confined to the area available to the judicial scrutiny of a legislative enactment, then, the proposition advanced by the learned counsel for the petitioners cannot be applied at all. On the other hand, if the exercise of this power to legislate vested in the executive, is to be treated as the exercise of an executive power (though resulting in a legislation) to some extent, then, the constitutional mandate given to the judiciary to examine the validity of the exercise of such a power can be extended to the instant case.
23. It is known proposition that a word or a phrase set in one context bears a meaning different from its meaning under a different context. Words of any language are meant to convey human ideas; and the imperfections of humankind are reflected in the words created or used by the humanity. Human ingenuity has not so far developed to an extent of finding out specific words to convey only a particular idea in all the cantexts and situations; therefore, the meaning of the words are to be understood with reference to and in the background of the setting in which they are used. The question whether the word 'satisfied' or the phrase 'on being satisfied' has a meaning inviting judicial scrutiny of its substance and the circumstances leading to such satisfaction are matters for judicial investigation, cannot be answered by any rigid, set formula. These words are to be understood in the context in which they are used. If the 'satisfaction' is the satisfaction of a legislature, it is outside the pale of judicial scrutiny and question of relevancy, propriety and bona fides of the situation leading to the 'satisfaction' cannot be examined. Here, a high constitution functionary like the Governor's satisfaction based on his appreciation of the circumstances warranting the promulgation of an ordinance, is the setting in which the relevant words are used in Art. 213. No doubt, the Governor acts on the advice of his council of Ministers, who in turn are responsible to the legislature. This is a constitutional provision providing for a situation when the legislature is not in session; the promulgated ordinance has limited period of life. During the period when the legislature is not session, for the purposes of law making, the Constitution, in effect, has treated the Governor as the legislature. Though the Government is normally, understood as wielding an executive power, jurisprudentially, he is not a mere "executive". He is the 'head' of the 'State'; the term 'State' comprising within itself the three departments, legislature, judicial and the executive. Therefore, at least in this area covered by Art. 213 while exercising the power to make the law, it cannot be said that he bears attributes of an executive only. It is this principle that seems to have been applied by the Federal Court and the Supreme Court (AIR 1950 FC 59 and ). These decisions have not yet been overruled or dissented from by the Supreme Court in any of its Other decisions cited before us.
24. It was contended that if judicial scrutiny is not available to examine the existnece or the relevancy of the circumstances leading to the satisfaction of the Governor under Art. 213, the executive in the guise of exercising the legislative power, would be supreme for about 7 1/2 months (the maximum period of the life of an ordinance), and it is opposed to the democratic principle and culture of the nation to permit the executive to govern by making a law.
25. If the ordinance is in conflict with any of the guaranteed rights under the Constitution or beyond the legislative competence of the legislature, certainly the ordinance is subject to judicial review; it no such right is contravened and the subject of the ordinance is within the legislative competence of the State, the infringement caused by the ordinance will be only in the area of statutory rights -- an area not as sacrosanct as the sphere of fundamental rights. The legislature has ample power not only to disapprove the ordinance, but also to make any further law with retrospective effect, to erase the mischief caused by the ordinance. Therefore, it cannot be said that the mischeif caused by an unwanted ordinance is irremediable. Judicial therapy is not the only treatment available to an aggrieved subject. The affectation of Statutory rights by the ordinance, if found to be improper, unjust or inexpedient, the legislature would always step in to apply the remedial measure. The learned counsel for the petitioners are not prepared to accept this proposition, apprehending that the legislature is always swayed by the leadership of the executive (i.e., the council of ministers) who advised the Governor to promulgate the ordinance. This apprehension cannot be countenanced; the legislature is presumed to reflect the views of the people and would step in to cause the removal of any evil caused by an executive action. The statement of the Supreme Court in Mohd. Hanif Quareshi v. State of Bihar, is very relevant here :
"The Courts, it is accepted must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest...."
26. For a temporary period, the executive (i.e., the council of ministers) may have the power to promulgate an ordinance; but the executive cannot be unmindful to its an-swerability to the legislature; the very existence of the said executive depends upon the pleasure of the legislature. In practice, may be, the legislature functions depending upon the party affiliations of its members. But the real question is, so long as the laws, enforced (or made) by the executive has the backing of the legislature, can it be stigmatised as governance by the executive undemocratically ? Is it entirely unreasonable ? The classical statement of Patanjali Sastri, C.J. in State of Madras V. V. G. Row, requires to be remembered while considering the petitioners' submission that neither the executive nor the legislture can be expected to act reasonably having regard to the political realities; the learned Chief Justice stated :
"It is important in this context to bear in mind that the test of reasonableness wherever prescribed, should be applied to each individual statute impugned, and no abstract standard orgeneral pattern of reasonableness can be laid down as applicable to all cases.
The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of the values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable."
27. In Secretary of State for Education and Science v. Metropolitan Borough of Tameside, (1976) 3 All ER 665, Lord Denning, MR, said at p. 671 :
"The question often arises whether someone has acted, is acting or is proposing to act unreasonably. To decide this question, it must be remembered as Lord Hailsham of St. Marylebone LC said, 'Two reasonable (persons) can perfectly reaonably come to opposit conclusions on the same set of facts without forfeiting their title to be regarded as reasonable; see Re W (an infant). It is one thing to say to a person : 'I think you are wrong. I do not agree with you. It is quite another thing to say to him. 'You are being quite unreasonable about it. I know it is often done. It is common place in argument to say to your adversary : 'You are being very unreasonable', when all ou mean is : 'I think you are wrong'. Such hyperbole is excusable in ordinary mortals but not in those who have to consider and apply Acts of Parliament. No one can properly be labelled as being unreasonable unless he is not only wrong but unreasonably wrong, so wrong that no reasonable person could sensibly take that view."
28. In fact this contention of the petitioners runs counter to the law enunciated by the Supreme Court in Venkata Reddy's case . The observation of the Supreme Court in R. C. Cooper's case, was cited to say that the determination by the President of the existence of circumstances and the necessity to take immediate action on which the satisfaction depends is not declared final and that it is a conditional power; but this observation is of no avail to the petitioners in view of the subsequent observation of the Supreme Court in the very decision at para 27 wherein the Supreme Court stated that there was no need to express any opinion in the said case on the extent of the jurisdiction of the court to examine whether the condition relating to satisfaction of the President was fulfilled.
29. Since A. K. Roy's case and R. C. Cooper's case have been considered in Venkata Reddy's case we need not refer to the said citations here again. However, in both the aforesaid decisions ( and AIR 1981 SC 2138) the Supreme Court did not lay down any proposition to the effect that the judicial power is available to scrutinise the satisfaction of the Governor under Art. 213 of the Constitution or that of the President under Art. 74 of the Constitution.
30. The State of Rajastan's case, has already been referred. The power of the President under Art. 356 of the Constitution is not a legislative power and therefore the words used in Art. 356 cannot convey the same meaning as the similar words used in Art. 213,
31. Strongest reliance was placed on the decision of the Supreme Court in Dr. D. C. Wadhwa v. State of Bihar, . The practice of the State of Bihar in promulgating and re-promulgating ordinances on a massive scale was challenged before the Supreme Court on the ground that such a power was not available under Art. 213 of the Constitution. The Supreme Court accepted the contention of the petitioner therein. At p. 589 the Supreme Court held that if the legislature has transgressed its legislative power in a covert or indirect manner and if it adopts a device to outstep the limits of its power the legislation will be a colourable one. The same test was applied thereafter to the ordinances in question and the Supreme Court observed at p. 589 thus :
"When the constitutional provision stipulates that an Ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the legislature and the government if it wishes the provisions of the Ordinance to be continued in force beyond the period of six weeks has to go before the Legislature which is the constitutional authority entrusted with the law making function, it would most certainly be a colourable exercise of the power for the Government to ignore the legislature and to repromulgate the Ordinance and thus to continue to regulate the life and liberty of the citizens through ordinance made by the executive. Such a stratagem would be repugnant to the constitutional scheme, as it would enable the executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly arrogate to itself the law making function of the Legislature."
Thee observations were relied upon by the learned counsel for the petitioners to contend that in the instant case there was absolutely no urgency calling for an immediate action, warranting the promulgation of the ordinance and therefore issuance of the ordinance was a colourable exercise of the power. It was also contended that by necessary implication the Supreme Court found in Wadhwa's case that circumstances did not exist for issuance of the ordinances repeatedly.
32. The ratio of the aforesaid decision of the Supreme Court cannot be understood in the manner propounded by the learned counsel for the petitioners. The Supreme Court was considering as to whether Art. 213 empower the making of an ordinance and promulgating it repeatedly resulting in circumventing the very provision of Art. 213. Under Art. 213 the life of an ordinance cannot go beyond six weeks from the reassembly of the legislature. Art. 213 has fixed the maximum duration of the life of an ordinance. If so, that life cannot be extended beyond that period by repeating the promulgation. Here the Supreme Court was concerned with the power of the Governor to make the ordinance. It is on par with the question as to the legislative competence of the legislature to enact a law. The question related to the initial jurisdiction of which the Governor is not the sole judge. But whether the circumstances justify an immediate action is to be decided by the Governor alone under Art. 213. Said question is within his competence. Said question is not comparable with the question that was posed before the Supreme Court in Wadhwa's case .
33. In fact the Supreme Court referred to the objection raised by Sri Lal Narain Sinha to the effect that the court is not entitled to examine whether the conditions precedent for the exercise of the power under Art. 213 existed or not, for the purpose of determining the validity of an ordinance. This contention was not rejected by the Supreme Court. The Supreme Court held that the decisions cited by the learned counsel dealt with altogether a different question from a question that arose for consideration before the Supreme Court in Wadhwa's case . Supreme Court held in this connection at page 590 :
"It is true that, according to the decisions of the Privy Council and this court, the court cannot examine the question of satisfaction of the governor in issuing an ordinance, but to question in the present case does not raise any controversy in regard to the satisfaction of the Governor. The only question is whether the Governor has power to repromulgate the same Ordinance successively without bringing it before the Legislature. That dearly the Governor cannot do. He cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him."
(Underlining is by us)
34. Therefore, it is clear that the Supreme Court was concerned with the power of the Governor in its abstract form created by Art. 213 of the Constitution. The question in Wadhwa's case was entirely different and pertained to the outer jurisdiction of the Governor to promulgate an ordinance repeatedly, even though the legislature had met in the meanwhile on several occasions but thought it fit not to enact a law on the same subject. This has nothing to do with the satisfaction of the Governor regarding the circumstances justifying an immediate action by promulgating an ordinance.
35. It was contended that the selection of the time for promulgating the ordinance ignoring the fact that the Bill is already pending before the legislature on the relevant subject is quite unreasonable and arbitrary and in promulgating the ordinance the Governor acted in utter disregard of the constitutional and democratic process which should precede the making of a law. The learned counsel contended that reasonableness and unarbitrariness runs through the fabric of our Constitution and the said requirement governs and pervades every facet of the power created not only by law, but also by the Constitution. It was contended that if an amendment to the Constitution can be nullified by the courts as violative of the basic structure of the Constitution which includes the concept of Rule of law, why not the satisfaction of the Government under Art. 213 be questioned similarly. The short answer is the setting in which the power has been created under Art. 213. It is not as if the people are without any remedy against an unconstitutional or improper exercise of the power. The Constitution has created a machinery to make the law under a situation when the legislature is not in session and confine the life of the said law to a limited period. The law is promulgated by the Governor on the advice of the council of Ministers who are fully answerable to the legislature. We have already referred to this aspect of the question while referring to the decision of the Supreme Court in the State of Rajasthan v. Union of India . We however, make it clear that if on merits the ordinance offends any of the guaranteed rights under the Constitution, without any hesitation this court will stike down the ordinance. But if the ordinance does not offend or contavene any of the fundamental rights and it is within the competence of the legislative power of the State, the approach of this Court in testing the other circumstances leading to the ordinance will necessarily be different from the one adopted while testing a purely executive or quasi-judicial power. This apart, we are bound by the decision of the Supreme Court in Venkata Reddy's case :
36. Venkata Reddy's case also refers to an earlier decision of the Supreme Court reported in the same volume -- K. Nagaraj v. State of Andhra Pradesh, the Court observed :
"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 government to promulgate an ordinance is contained in Art. 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 pleanary within its field like the power of the State Legilature to pass laws and there are no limitations upon that power except those to which the legislative power of the State legislature is subject. Therefore, though an ordinace can be invalidated for contravension of the Constitutional limitations which exist upon the power of the State Legislature to pass laws it cannot be declared invalid for the reason of non-application of mind, any more than any other law can be. An executive act is liable to be struck down on the ground of non-application of mind. Not the act of a legislature."
(Underlining is by us)
37. The contention putforth in the said case bears similarity to the present contention, when the petitioners comended that there was no hurry at all for the promulgation of the ordinance since the Bill was already pending before the legislature. At p. 566, The Supreme Court observed :
"Though Sri Ray presented his argument in the shape of a challenge to the ordinance on the ground of non-application of mind, the real thrust of his argument was that the hurry with which the ordinance was passed shows the arbitrary character of the action taken by the State Government." We have already rejected the contention of haste and hurry as also the argument that the provisions of the ordinance are, in any manner, arbitrary, unreasonable and thereby violaie Arts. 14 and 16 of the Constitution."
38. The attack against the ordinance that, it offends Art. 14 in view of its iarget being confined only to the two elected offices of Adhyaksha and Upadhyaksha, is not acceptable; these two offices are of different category from other elected offices in the administration of local governments. When the ordinance does not offend any of the fundamental rights, question of its violating the basic structure of the Constitution does not arise. The procedural aspect of the ordinance, in the sense, that, it has been issued when the Bill on the subject has been introduced in the Assembly, cannot be held as opposed to any basic structure of the Constitution because, the Constitution itself envisages promulgation of an ordinance, if the Governor is satisfied that the circumstances warrant the promulgation. The cotnention of the petitioners is an indirect method to circumvent ratio of the Supreme Court's decision in Venkata Reddy's case wherein, existence of circumstances for the satisfaction of the Governor under Art. 213, was held as non-justiciable.
Since we are precluded from going into the satisfaction of the Governor in promulgating the ordinance and examine the circumstances leading to the satisfaction, the major attack against the ordinance fails.
39. The next question to be considered is, whether the provisions of the Ordinance violate Art. 14 of the Constitution. The petitioners contend that the State has discriminated in selecting the offices of Adhyakshas and Upadhyakshas for making the law while similar offices under various other enactments in the State require two-thirds majority to pass a resolution to remove the office-holders, as under the Town Municipalities Act, Agricultural Produce Marketing Regulation Act etc. Even under the very Act in question, the Mandal Pradhans cannot be removed without the resolution being passed by a two-thirds majority. When all those elected office-holders cannot be removed without two-thirds majority, the petitioners queston as to why only the Adhyakshas and Upadhyakshas under the Act should be selected for a different treatment.
40. No doubt, there are offices and offices. All elected office holders cannot be held to belong to a single class. The nature of the office and the power exercised by the office holders vary in the context of the various legislations. The position of Adhya-kshah and Upadhyakshah under the Act is quite unique and is not comparable with other elected office holders referred to by the petitioners. Even though the Adhyaksha is only an executive head and has powers to supervise the functioning of the various officers under the Act and he has to oversee the developmental works, the area of operation is quite wide and these offices have become quite prestigeous in the Districts concerned. The executive head has its own special features and influence in the day-today working of any institution; orientation that can be given by the executive head has a special impact. Therefore, it is not possible for us to agree that the law making authority cannot select these two offices for the purpose of the law making by way of ordinance. The contention under Art. 14 of the Constitution therefore will have to be rejected and accordingly it is rejected.
41. For the reasons stated above, these writ petitions fail and are dimissed. However, in the circumstances of the case there will be no order as to costs.
42. It is submitted by the learned counsel for the petitioners, that the question "whether the circumstances when disclosed could be examined by the Court as justifying the satisfaction arrived at by the Governor under Art. 213 "is not covered by the decision of the Supreme Court in Venkata Reddy's case, ; there are a few observations in earlier decision such as in Co-oper's case, and A. K. Roy's case, AIR 710 which to some extent justify the contention putforth by the learned counsel for the petitioners. Similarly, observations of the Supreme Court in State of Rajasthan v. Union of India, also, to some extent support the petitioners' contentions. In these circumstances, we are of the view that this is a matter, in which the Supreme Court will have to finally decide the question posed by the learned counsel for the petitioners. Accordingly we certify that these cases involve a substantial question of law as to the interpretation of Art. 213 of the Constitution and the power of the High Court under Article 226 of the Constitution to examine the disclosed circumstances leading to the satisfaction of the Governor under Art. 213. The oral application under Art. 134-A of the Constitution is allowed and the certificate is granted thereunder.
43. There was an interim order during the pendency of these writ petitions. But, now we have held that the Court has no power to examine the question in view of the decision of the Supreme Court in Venkata Reddy's case, . Learned counsel for the petitioners however, seeks maintenance of status quo at least for a few days to enable them to move the Supreme Court, as otherwise, the very Certificate issued by us will bewcome infructuous. Having regard to these circumstances we make an interim order to the effect that even if the Ordinance is given effect to and any Resolution is passed to remove any Adhyaksha or Upadhyaksha, the Resolution shall not be given effect till 20th March, 1991. Ordered accordingly.
44. It is clarified that the proceedings under the Ordinance may be initiated by any of the Zilla Parishad, if so desired, but effect shall not be given to the actual Resolution of removal till 20th March, 1991.
45. Learned counsel for the State, vehemently opposed this oral application of the petitioners seeking Certificate as well as the interim order. For the reasons stated above, we are constrained to grant the certificate and issue the interim order as above.
46. Office is directed to issue the certified copies of the orders made in the writ petitions as well as this order to the parties immediately, if applied for.
47. Petitions dismissed.