Bombay High Court
Ramprasad Wamanrao Kadam Bordikar vs The State Of Maharashtra And Ors. on 26 February, 1996
Equivalent citations: 1996(3)BOMCR658, 1996 A I H C 2846, (1996) 1 MAH LJ 983, 1996 BOMCJ 2 326, (1996) 3 BOM CR 658
JUDGMENT N.P. Chapalgaonker, J.
1. Rule. Taken up for hearing forthwith by consent of the parties.
2. These two writ petitions have brought in challenge the provisions of the Maharashtra Ordinance No. 17 of 1995, namely, the Maharashtra Agricultural Produce Market (Regulation) (Temporary Amendment) Ordinance, 1995. By an amendment, the petitioners have also brought in challenge the provisions of the Maharashtra Act No. 9 of 1996, namely, the Maharashtra Agricultural Produce Market (Regulation) (Temporary Amendment) Act, 1996, which makes similar provisions to that of Ordinance No. 17 of 1995.
3. The petitioner in Writ Petition No. 5484 of 1995 is the Chairman of Jintur Agricultural Produce Market Committee, Jintur and was the Chairman of the Bombay Agricultural Produce Market Committee, Bombay, for several years. He is also the Member of Maharashtra Legislative Assembly elected on Congress ticket and alleges that since the new Government came into power after the 1995 elections, several attempts are being made to keep him out of the Bombay Agricultural Produce Market Committee. Since the term of office of the Jintur Market Committee was over, a proposal for extension of the committee was sent. As the Government did not take any decision, a writ petition came to be filed on 5th May, 1995 bearing No. 207 of 1995. The petition was adjourned to 2nd June, 1995 but in the meanwhile, on 10th May, 1995, the District Deputy Registrar, Co-operative Societies, Parbhani, appointed an Administrator on Jintur Market Committee. Earlier, this Court had granted protection to the petitioner against the apprehended order for 10 days, therefore the order was not implemented. Writ Petition No. 2123 of 1995 was filed in this Court challenging the appointment of the Administrator and the said petition is still pending. By way of interim relief, this Court directed the District Deputy Registrar not to take any steps in furtherance of the order of appointment of Administrator during the pendency of that writ petition. One Shri Shamrao Kakade filed a writ petition before this Court at Bombay and in that Writ Petition No. 1084 of 1995, Division Bench of this Court, on 28th March, 1995, was pleased to direct respondent - State to hold the elections of the Bombay Agricultural Produce Market Committee as expeditiously as possible but before the end of July 1995. On 26th July, 1995, a civil application was moved in that Writ Petition No. 1084 of 1995 by the State Government, Director of Agricultural Marketing and Collector of Bombay, praying that the period given for completing the elections be extended to April 1996. But the said application came to be rejected in September, 1995.
4. The petitioner in Writ Petition No. 5484 of 1995 also alleges that there was an attempt to bifurcate the Jintur Market Committee so that the Government will have power to appoint first committees for the bifurcated Market Committees and a Committee was also appointed under section 40 of the Agricultural Produce Market (Regulation) Act, 1963 (hereinafter called as the "Market Act"), to inquire into affairs of Bombay Market Committee under the Chairmanship of a retired Judge of this Court (Puranik, J.). The petitioner presumes that the report exonerates him since it was not served on him. Since all these attempts failed, the process of election of Bombay Market Committee started and the voters' list was finalised on 22nd September, 1995. Again an attempt was made to disqualify the petitioner under Rule 41 but this Court intervened and stayed the order. As a last resort, the Government came with the Ordinance changing temporarily the composition of the Bombay Market Committee and deleting the elected representation from its constitution. Thereafter the bill was introduced in the Legislature to replace the Ordinance.
5. In this background, the petitioners have challenged the Ordinance and the amending Act. Shri A.S. Bobade, learned Counsel appearing on behalf of the petitioner, assailed the Ordinance and the Act mainly on the following grounds :
(I) They are the exercise of legislative powers to set at naught the specific orders made by this Court and to by-pass the directions, issued by this Court to hold an early elections;
(II) The Ordinance was promulgated when only few days were left for the Assembly to meet. This would be the total abuse of the powers under Article 123 of the Constitution of India;
(III) The Act No. 9 of 1996 is not a validly passed law. The Legislative Council had no opportunity to discuss the Bill for the second time and, therefore, it cannot be deemed to have been passed under Article 197 of the Constitution of India;
(IV) Both the Ordinance and the Act are hit by Article 14 of the Constitution of India since they legislate for the Bombay Market Committee alone singling it out without any rational basis for classification.
6. The learned Advocate General, Shri C.J. Sawant, apart from denying the contention that the Ordinance or the Act was brought in with malice towards the petitioner Bordikar and to prevent him from coming into power, points out the necessity to treat Bombay Market Committee differently since there is clear distinction between the Bombay Agricultural Produce Market Committee and the remaining 257 Market Committees in the State. The area of operation of the Bombay Market Committee extends to Bombay Sub-urban District, part of Thane District and part of Raigad District and other Market Committees in the State operate only in the area of a taluka. The volume of the trade in the Bombay Market exceeds Rs. 2,500 crores in a year which may be equal to the turn over of the trade in all other Market Committees in the State taken together. The learned Advocate General also pointed out that various markets regulated by Bombay Market Committee are being shifted from the Greater Bombay to the New Bombay and a vast market complex is being established in New Bombay with the financial assistance of the State Government and the Bombay Metropolitan Regional Development Authority. An amount of Rs. 55 Crores has been raised from the consortium banks led by the State Bank of India, which has been guaranteed by the State Government, Rs. 13 Crores have been lent by the Bombay District Central Co-operative Bank Ltd. and Rs. 5 Crores have been raised from the Marketing Board and other institutions. Out of the total borrowings of Rs. 130 Crores, an amount of Rs. 122 Crores was outstanding as on 30th September, 1995 which the Bombay Market Committee has to repay. Therefore, according to him, substantial stakes of the Government and the people are involved in the Bombay Agricultural Produce Market Committee and to secure the repayment of these loans, it is necessary that the Bombay Market Committee is administered by different kind of Board for a temporary period ensuring greater Government control. Since the Government did not want that the representative character should be lost for all the time, the amendment is brought in only for a temporary period i.e. for two years or till the outstanding debts are reduced to Rs. 50 Crores, whichever event occurs earlier.
7. The learned Advocate General also traces circumstances which led to special consideration for Bombay Market Committee. Need to regulate the terminal market in Bombay was felt by the committee appointed under the Chairmanship of Dr. T.G. Shirname in the year 1955 and the Legislature, in the year 1976, inserted sub-section (1) in section 13 of the Marketing Act so as to constitute the Bombay Market Committee with different kind of structure. Whereas the representation to agriculturists in the area of operation of Market Committee alone is given in the Constitution of the other Market Committees, the representation is given to all the agriculturists in the State in the Bombay Market Committee since it is a terminal market. Ten agriculturists residing in the market area, two traders and commission agents, holding licence to operate, as such, in the market area and one Hamal or weighman operating in the market area along with the Chairman of a co-operative society doing the business of processing or marketing of agricultural produce and the President or Sarpanch of the local authority other than the Panchayat Samiti, within whose jurisdiction the principal market is situated or the representative elected by such local authority and the Government officials like Deputy Registrar, Co-operative Societies and Assistant Cotton Extension Officer or the District Agricultural Officer constituted the Market Committees other than the Bombay Market Committee. In the Bombay Market Committee, 12 agriculturists were to be elected by the agriculturist members of other Agricultural Produce Market Committees in the State (two from each revenue division). The representation to the traders, commission agents and Hamals or weighmen was similar on the lines of other Market Committees. The representative of Maharashtra State Agricultural Marketing Board, representative of the Municipal Corporation, Greater Bombay, the Metropolitan Commissioner, Managing Director of the Maharashtra State Co-operative Marketing Federation Ltd. or his nominee, Director of Agricultural Marketing, Pune, or his representative were the other members of the Bombay Market Committee.
8. A study group headed by Shri R.J. Sinha, Managing Director of CIDCO was also appointed by the State Government to give a report on the working of the Bombay Agricultural Produce Market Committee and considering all this material, the State Government took a decision that it is necessary to take urgent steps to modify the constitution of the Bombay Market Committee for a temporary period. With this intention only, on recommendation of the State Government, the Ordinance was promulgated and the Bill was introduced and passed by the Legislature, which was duly consented by the Governor.
9. Shri A.S. Bobade, learned Counsel for the petitioners, submitted that it is not the case of the State Government that something has happened only after the directions to hold the elections were given by this Court, which deteriorated the financial position of the Bombay Market Committee and the State Government felt it necessary to change its constitution. The loans have been borrowed by almost all the Market Committees. The volume may vary but the fact remains that the loans had to be advanced to the Market Committees whenever they are in need and it does not reflect to any mismanagement by the elected members of the Market Committees. The loans are sanctioned by the Government officials after scrutinising the proposals. Shri Bobade further submitted that the difference in the constitution of the Bombay Market Committee and other Market Committees, as provided in section 13 of the Market Act, has nothing to do with the Legislation impugned in these writ petitions. The classification sought is not based on that distinction but it is based on volume of external monetary debt repayable by the Bombay Agricultural Produce Market Committee and need to see that it is repaid, and it is alleged that constitution of this Market Committee will have to be changed by deleting the elected elements for securing this end. Shri Bobade submits that unless it is established that the elected element was hindrance in repayment of these debts and unless it is established that in other Market Committees similar measure was not necessary, the Legislation impugned would be a colourable exercise of the legislative powers. Shri Bobade was fair enough to say that though he does not wish to challenge the motive of the Legislation, the classification based on an unreasonable footing, which has no nexus with the object to be achieved, itself would render the Legislation invalid having infringed the guarantee under Article 14 of the Constitution of India. In support of this contention, Shri Bobade relied on the judgments of the Supreme Court in the case of Ameerunnissa Begum v. Mahboob Begum, ; in the case of Ramprasad Narayan Sahi v. State of Bihar, and in the case of Meenakshi Mills Ltd., Madurai v. A.V. Vishwanath Shashtri, . Relying on these judgments, Shri Bobade submitted that the Bombay Market Committee was singled out without any reasonable basis for classification for the purpose of legislation. Therefore, the Court must invalidate the impugned Amendment Act as violating the guarantee of equal protection.
10. In Ameerunnissa's case (cited supra), Hyderabad State Act, namely, Valududowla Succession Act, 1950, was challenged. The stated object of the impugned Act was to put an end to the disputes regarding the estate of Nawab Valiudowla and the Act, in effect, dismissed the claims of succession to the said property put forward by two of the alleged wives of the late Nawab, namely, Mahboob Begum and Khaderan Begum and their children. Their claim was resisted by Ameerunnissa Begum, an admitted wife of the late Nawab and her children. The High Court of Hyderabad declared the Act as void and in an appeal by Ameerunnissa Begum, the Supreme Court confirmed the decision of the Full Bench of the Hyderabad High Court holding that the Act discriminates specific persons from rest of the community and deprives them of their right to enforce their claims, according to the personal law of their community in the Court of Law. The reasons stated for depriving these persons benefit of ordinary Law are arbitrary and unreasonable and hence the Act falls within the inhibition of Article 14 of the Constitution of India. The learned Judges of the Supreme Court while considering the nature and scope of the guarantees under Article 14 of the Constitution, observed thus :---
"It is well settled that a Legislature, which has to deal with the diverse problems arising out of an infinite variety of human relations, most of necessity, have the power of making special laws of making special laws to attain a particular object and for that purpose, it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per se amount to discrimination within the inhibition of equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary, that it does not rest on any rational basis having regard to the object which the Legislature has in view."
On this touch-stone, the Supreme Court examined the purpose of the classification and found it to be unreasonable and the named legislation was struck down confirming the judgment of the Full Bench of the Hyderabad High Court.
11. In Ramprasad's case (cited supra), the Act passed by the Bihar Legislative Assembly known as Sathi Lands (Restoration) Act, declared the lease granted by Bettiah Ward Estate to Ramprasad on 18-11-1946 to be illegal and inoperative and directed the eviction of the lessees from the lands. The management of the lands under question was with the Court of Wards and from it, the appellant Ramprasad obtained a settlement of about 200 Bighas of land. An affidavit filed on behalf of the State of Bihar, while pointing out the necessity of the Legislation, referred to an enquiry made by the Working Committee of the Indian National Congress, which found the settlement of these lands contrary to the provisions of law and public policy and recommended that steps should be taken by the State of Bihar for restoring the lands to the Bettiah Estate. The enquiry before the Congress was in respect of the land held by Shri Prajapati Mishra and Shri Ramprasad. Whereas Shri Prajapati Mishra returned the lands, Ramprasad refused to do so and, therefore, the Legislation was enacted. Supreme Court held :
"The impugned Act has singled out two individuals and one solitary transaction entered into between them and another private party namely Bettiah Ward Estate and has declared the said transaction to be nullity on the ground that it is contrary to the provisions of law, although there has been no adjudication on this point by any judicial tribunal. By so enacting what the Legislature has done is singling out two individuals out of the many lessees and denying them the right, which every Indian citizen possesses, to have his right adjudicated upon by judicial tribunal in accordance with the law, which applies to his case. The meanest of the citizens has a right of access to a Court of Law for redressal of his just grievance and it is from this right that the lessees have been deprived by this Act ... ... ... The Act, therefore, comes within the mischief of Article 14 and is declared invalid."
12. In Kartar Singh v. State of Punjab, , while considering the challenge to the constitutional validity of Terrorist Affected Areas (Special Courts) Act, (No. 61 of 1984) and some other statutory provisions, Supreme Court observed thus:-
"The principle of legislative classification is an accepted principle whereunder persons may be classified into groups and such groups may differently be treated if there is a reasonable basis for such difference or distinction. The rule of differentiation is that in enacting laws differentiating between different persons or things in different circumstances which govern one set of persons or objects such laws may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different set of circumstances."
13. In the light of the above referred decisions, we have to examine whether legislation changing the composition of the Bombay Market Committee alone and giving it a different treatment as compared to other Market Committees in the State would be valid one. The material placed before us goes to show that the Bombay Market Committee is different from other Market Committees not only in the composition but in the volume of the trade regulated by it and its indebtedness is also substantial in character. We cannot persuade ourselves to go into the enquiry as to whether the deletion of the elective element from the composition would by itself be helpful in reducing the burden of the beft and bringing the affairs of the Bombay Market Committee on the right path. That would be questioning the legislative wisdom. Once we hold that the distinction made between the class regulated by the legislation and the class left out is not arbitrary, artificial or evasive, the sufficiency of the measure taken by the legislature and its appropriateness will be out of the arena of the enquiry by this Court. As was pointed out by the Supreme Court in T. Venkata Reddy etc. etc. v. State of Andhra Pradesh, , that while the courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from enquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. Similar is the case about the pleadings of the malice which petitioner Shri Bordikar has pleaded in Writ Petition No. 5484 of 1995. The ordinance making power is a legislative power and as in the case of legislative power, any argument about the mala fides is misconceived. As was pointed out by the Supreme Court in K. Nagaraj & others etc. etc. v. State of Andhra Pradesh & another etc., :---
"The legislature, as a body, cannot be accused of having passed a law for extraneous purpose. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render passing of the law mala fide. This kind of "transferred malice" is unknown in the field of legislation."
Therefore, even assuming that the State Government was making all efforts to prevent the petitioner from again getting elected as an office bearer of the Bombay Market Committee, that motive cannot be attributed to the legislature and it cannot be presumed that the Governor promulgated the Ordinance or the legislature passed the Act with this ulterior motive. Shri Bobade was fair enough to concede to this legal position.
14. The submission advanced by Shri Bobade that the State would have come with the impugned legislative measure much earlier if the situation was so grave, will have to be repelled. Section 51(3) of the State Reorganisation Act gave power to the Chief Justice of the High Court of Bombay to direct, with the prior approval of the Governor of Maharashtra, that the Judges and the Division Courts of the High Court shall sit at any other place other than Bombay. Argument was advanced that the State Reorganisation Act was made to meet transitory problems and, therefore, the power cannot be utilised lately in the year 1981. The Supreme Court held that a statute can be abrogated only by express or implied repeal. It cannot fall into desuetude or become inoperative through obsolescence or by lapse of time. See State of Maharashtra v. N.S. Puranik & others, . Similar is the case of the legislative power. If the legislative power is there to meet the exigency, it can be exercised by the legislature at any time. Courts cannot examine the appropriate time for bringing such measure and cannot substitute its judgment to that of the legislature about the proper time to bring such measure.
15. The next contention to be considered is whether the impugned Ordinance and Act were made to legislatively overrule the directions of this Court. It is now well settled that if the rights of the parties are adjudicated by Court or a Tribunal having jurisdiction to do so, the legislative power cannot be utilised to over rule the judicial decision. In S.R. Bhagwat & others v. The State of Mysore, Judgments Today 1995(6) Supreme Court 444, section 4 and section 11(2) of the Karnataka State Civil Services (Regulation of Promotion, Pay & Pension) Act, 1973, was assailed. Petitioners in the case had a judgment in their favour delivered by the Division Bench of the High Court to give them deemed dates of promotions. The said judgment was not challenged before the Supreme Court, but the State legislature came with a legislative measure whereby the consequential financial benefits to the petitioners were denied. The High Court had directed in its order that each of the petitioners be considered for promotion to the post next above the cadre of the post he was holding on 1-11-1956 as on the date on which anyone of his juniors according to the final inter State Seniority List was for the first time so promoted and that if he is found fit and promoted, he be given all the benefits consequential thereon including consideration for promotion to higher cadres and financial benefits. The Supreme Court reiterated its view expressed in earlier judgment in G.C. Kanugo v. State of Oriss), Judgments Today 1995(4) Supreme Court 589, that the legislature has no legislative power to render ineffective the earlier judicial decision by making a law which simply declares the earlier decisions as invalid and not binding for such powers if exercised, would not be legislative power exercised by it, but judicial power exercised by it encroaching upon the judicial power of the State vested in a judicial Tribunal and held section 11(2) of the said Act as unconstitutional, illegal and void.
16. In 1993 Supp. (1) Supreme Court Cases, 96(II), Cauery Water Dispute's, case, the Karnataka Kauvery Basin Irrigation Protection Ordinance, 1991, was held to be unconstitutional and ultra vires as it was in effect overriding interim orders made by the Tribunal constituted by the Parliamentary Law. The effect of the Ordinance was to nullify the orders of the Tribunal which were passed in a proceeding in which Karnataka State itself was a party. The rights of the parties were adjudicated and then the effect of the order was sought to be effaced. This was an instance of the legislatively overruling the judicial pronouncement. But in the very judgment, after reviewing various judgments on the point, the Supreme Court observed that the legislature can change the basis on which the decision is given by the Court and thus change the law in general which will affect class of persons and events at large though it cannot set aside an individual decision inter partes and affect their rights and liabilities alone. (See para 76 page 142 of the Report).
17. In the case of The Government of Andhra Pradesh and another v. Hindustan Machine Tools Ltd., , an amendment to Andhra Pradesh Gram Panchayats Act changing the definition of the "house" for the purpose of levying house tax was challenged but the challenge was rejected by the Supreme Court on the ground that the amendment changes the basis on which the judgment inter partes was delivered. Quoting its earlier decision in the case of Tirath Ram Rajindra Nath v. State of U.P., , the Supreme Court held that this was within the permissible limits and validation of the old Act by amending it retrospectively did not constitute an encroachment on the functions of the judiciary. When the basis on which the judicial pronouncement delivered is changed, it in effects nullifies the effect of that judicial order. But the purpose of the legislation is not to nullify that alone, the legislative amendment applies to all persons, institutions and things alike, which are covered by that provision. Therefore, it cannot be regarded as an interference in the judicial power.
18. In I.N. Saksena v. State of Madhya Pradesh, A.I.R. 1976 S.C. 2250, it was pointed out that though legislature cannot be a bare declaration, without more, directly overrule, reverse or override judicial decision, it may at any time in exercise of the plenary powers conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on the judicial power.
19. We find in the instant case that the direction was given by the High Court more than once to hold the elections of the Bombay Agricultural Produce Market Committee within certain time. These directions were mandamus in nature and were based on the fact that representatives had to be elected on the Bombay Agricultural Produce Market Committee and the State was under obligation to comply with this statutory requirement. The basis of the order was the statutory requirement and if it would have remained unchanged, then the directions of the Court could not have been nullified by any legislative action but there was nothing wrong in changing the basis of this order, that is to say, obligation of the State to hold elections for the elected posts in the Bombay Agricultural Produce Market Committee. The Ordinance and the law has sought to change the basis on which this Court had given certain orders, it cannot be said that it was made to overrule our orders.
20. While considering the contention that by the impugned Ordinance and Act, there was a legislative interference in the judicial adjudication, we have to bear in mind the nature of the right which the petitioner had. A right to vote and contest at the election is not a fundamental right or a common law right. It is special right created by the statute and can only be exercised on the conditions laid down by the statute. Therefore, no right was vested in petitioners, independent of the statute, to vote or contest at the election of the Bombay Market Committee. This right is co-existent with the statute and if it deletes provision for the elective element, the petitioners have no right for which they could seek mandamus. Right from N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency and others, , time and again courts have explained the nature of the right to vote and contest at the election. There is only a statutory right and it does not exist apart from the statute. In case of fundamental rights, if the rights are taken away by the statutes, statutes will have to be held illegal. It is not the case with the statutes governing elections. There is no pre-existing right vested in any individual to vote and contest the elections. Therefore, there is no infringement of any rights of the petitioner which can be complained of because of the amendment brought in by the impugned Ordinance and the Act.
21. Shri Bobade made strenuous efforts to contend that the impugned Act is not validly passed within the meaning of Article 197 of the Constitution of India. Ordinance No. XVII of 1995 was promulgated on 18-11-1995. On 4-12-1995, the winter session of the State Legislature commenced at Nagpur. On 6-12-1995, the Legislative Assembly Bill No. 42 of 1995 proposing the Act which would replace the Ordinance was moved before the Legislative Assembly and passed. On 19-12-1995, the Legislative Assembly Bill No. 42 was rejected by Maharashtra Legislative Council. On 21-12-1995, the said Bill was passed for the second time by the Legislative Assembly in view of the Council's rejection. On 23-12-1995 itself, the bill having been passed for the second time by the Legislative Assembly was transmitted to Legislative Council, and after the bill was tabled in the House, Legislative Council was prorogued. On 2-1-1996, the Bill was presented to the Governor and he assented to it.
22. Shri Bobade has raised serious objection to the assumption by the State that the bill is deemed to have been passed in view of Article 197(2). Article 197 of the Constitution is reproduced below for reference.
"197. Restriction on powers of the Legislative Council as to Bills other than Money Bills --
(1) If after a Bill has been passed by the Legislative Assembly of a State having a Legislative Council and transmitted to the Legislative Council----
(a) the Bill is rejected by the Council; or
(b) more than three months elapse from the date on which the Bill is laid before the Council without the Bill being passed by it; or
(c) the Bill is passed by the Council with amendments to which the Legislative Assembly does not agree, the Legislative Assembly may, subject to the rules regulating its procedure, pass the Bill again in the same or in any subsequent session with or without such amendments, if any, as have been made, suggested or agreed to by the Legislative Council and then transmit the Bill as so passed to the Legislative Council.
(2) If after a Bill has been so passed for the second time by the Legislative Assembly and transmitted to the Legislative Council ----
(a) the Bill is rejected by the Council; or
(b) more than one month elapses from the date on which the Bill is laid before the Council without the Bill being passed by it; or
(c) the Bill is passed by the Council with amendments to which the Legislative Assembly does not agree, the Bill shall be deemed to have been passed by the Houses of the Legislature of the State in the form in which it was passed by the Legislative Assembly for the second time with such amendments, if any, as have been made or suggested by the Legislative Council and agreed to by the Legislative Assembly.
(3) Nothing in this article shall apply to a Money Bill."
According to Shri Bobade, Article 197(2) requires that the Legislative Council should be given an opportunity to reconsider the Bill after it is laid on the table of the Council for the second time. Shri Bobade contends that Article 197 envisages that if there is a difference of opinion between the two Houses of the Legislature, one passes and another rejects, then an opportunity to consider it again should be given to both the Houses. Unless that opportunity is given, deeming provision as contained in Article 197(2) shall not come into play. He further submitted that period of one month is specifically mentioned in sub-clause (b) of Article 197(2) for the reason that sufficient opportunity should be there for the Legislative Council to reconsider the Bill, if it so chooses. In the instant case, Legislative Council was prorogued on the very day on which the Bill was tabled for the second time before the Legislative Council. Therefore, there was total denial of any opportunity to the Legislative Council to consider the Bill for the second time. Unless such opportunity is there, the deeming provision will not operate. Specific mention of one month's period suggests that either the Legislative Council should consider the Bill or the circumstances should show that though an opportunity was there, the Legislative Council did not consider the Bill again.
23. Shri Bobade placed reliance on Rule 142 of the Maharashtra Legislative Council Rules. Rule 142(1) and (2) are reproduced below :---
"142(1). Copies of every Bill passed by the Assembly for the second time under Clause (1) of Article 197 of the Constitution and transmitted to the Council shall be laid on the table of the Council. The date on which the Bill is laid on the table of the Council shall be reported to the Secretary of the Assembly.
(2) At any time after copies of the Bill have been laid on the table under sub-rule (1) of this rule, any Minister in the case of a Government Bill, or in the case of any other Bill, any member may, after giving three days' notice, move that the Bill as passed by the Assembly for the second time be taken into consideration."
Shri Bobade submits that provision of sub-rule (2) is made to give effect to what has already been provided by Article 197(2) of the Constitution. Tabling of a Bill for the second time is not a mere formality. The Bill has to be moved by the Minister in case of Government Bill or in case of any other Bill by any other member after giving three days' notice that the Bill as passed by the Assembly for the second time be taken into consideration. Therefore, according to him, an opportunity to consider the bill is pre-requisite for applying the deeming provision which permits to presume that the Bill is passed. The Bill could be deemed to have been passed only if it is rejected by the Council for the second time or is passed by the Council with the amendments to which the Legislative Assembly does not agree or the Bill is not considered by the Legislative Council for the second time despite one month's opportunity.
24. Learned Advocate General contended that this Court had no jurisdiction to consider the validity of the legislative proceedings. There can hardly have any quarrel with the proposition advanced by the learned Advocate General. What is sought to be raised by Shri Bobade is not a challenge to the proceedings of the Legislature which have actually taken place. He raises a question about the interpretation of the deeming provision contained in the Constitution read with the rules of the Legislature. This Court can always examine whether the circumstances exist which allowed the deeming provision to operate.
25. While considering Draft Constitution, Dr. Ambedkar, Chairman of the Drafting Committee, explained the reasoning behind the provisions. Three months and one month's time is given to the Upper House for consideration of the measure passed by the Lower House. He went on to say :
"Now, I come to the last question, namely, what is to be the starting point of calculating the three months or the one month. I think Mr. Kunzru will forgive me for saying that he has failed to appreciate the importance of the changes made by the Drafting Committee. If this provision had not been there in Draft Article 172 as it stands, I have no doubt and the Drafting Committee had no doubt -- that the powers of the Upper Chamber would have been completely negatived and nullified. Let me explain that; but before I do so, let me state the possibilities of determining what I call the starting point of limitation. First of all, it would have been possible to say that the Bill must be passed by the Upper House within a stated period from the passing of the Bill by the Lower House. Secondly, it would have been possible to say that the Upper House should pass the Bill in the stated period from the time of the reception of the Bill by that House. Now supposing we had adopted either of these two possibilities, the consequences would have been very disastrous to the Upper House. Once you remember that the summoning of the Upper House is entirely in the hands of the executive -- which may summon when it likes and not summon when it does not like -- it would have been quite possible for a dishonest executive to take advantage of this clause by not calling the Upper House in session at all. Or supposing we had taken the reception as the starting point, they could have also cheated the Upper House by not putting the Bill on the agenda and not thereby giving the Upper House an opportunity to consider it. We thought that this sort of procedure was wrong; it would result in penalising the Upper House for no fault of that House. If the House is not called certainly it cannot consider the Bill, and such a Bill could not be deemed to have been considered by the Upper House. Therefore, in order to protect the Upper House the Drafting Committee rejected both these possibilities of determining the starting point, namely, the passing of the Bill and the reception of the Bill, a proposal which was embodied by them in the draft article as it stands. And they deliberately adopted the provisions contained in the new article as is now proposed, namely, when the Bill has been tabled for consideration if the Upper House does not finish its consideration within the particular time fixed by this clause, then obviously the right of the Upper House to deal with the matter goes by its own default, and no one can complain; certainly the Upper House cannot complain. My honourable Friend Pandit Kunzru will therefore see that rather than whittle down the rights of the Upper House the new proposal has given the Upper House rights which the executive could not take away."
It is true that Dr. Ambedkar's explanation makes it clear that the Constitutional makers wanted that a second opportunity should be given to the Upper House for consideration of the Bill. According to Shri Bobade, that must be an opportunity in reality if the House is prorogued on the very day. If the Bill is tabled in the Council, it cannot be said that the opportunity for discussion is given to the Upper House.
26. The functioning of the democratic Constitution is founded on the mutual respect for the Constitutional institutions. The scheme of the Constitution gives prominence to the Lower House. But whatever rights are given to the Legislative Council, they are to be respected. It is presumed that the spirit behind letters of the Constitution should always be borne in mind while one wing of the State deals with another wing or one institution deals with other. But when the courts inquire into the validity of law, they will have to be strictly adhered to the provisions of the Constitution and interpret them as they stand. We cannot read something which we wish should be there. Plain reading of Article 197(2)(b) would show that one month's time lapses from the date on which Bill is laid on the table of the House without the Bill being passed by it and nothing more. Constitution does not provide that there should be 30 working days for the Legislature or even a single working day for that matter, when the Legislative Council is in session. The deeming provision which permits the Bill shall be deemed to have been passed by both the Houses of the Legislature of the State will come into operation immediately after either of the situations listed in Clauses (a), (b) and (c) of Article 197(2) come into existence. It is true that because of prorogation of the Legislative Council on the very day when the Bill was tabled, Legislative Council had practically no opportunity to discuss it. But such an eventuality will not except the Bill from the operation of the deeming provision. It is for the Legislative Council whether to sit and whether to avail the opportunity to reconsider the Bill for second time or not. But merely because the Bill was not considered by Legislative Council, it cannot be argued that the deeming provision will not come into play.
27. It is true that the Legislative Council did not consider the Bill. The normal rule in the Legislatures which are by Central is that both the Houses should pass the legislative measure. But in cases of difference, in case of Parliament Institution, Constitution provides for a joint sitting. Whereas for the State Legislature, no such joint sitting has been provided. More importance has been given to the Lower House of the State Legislature and under the circumstances listed in sub-article (2) of Article 197 of the Constitution of India, a legal fiction is created that the Upper House has passed it though actually the measure might have been rejected by the Upper House or might have been passed with such amendment to which the Lower House had not agreed. When the legal fiction is created, thing is treated to be that, in fact, it is not. The effect of such a legal fiction is, however, that a position otherwise would not have been obtained is deemed to be obtained under those circumstances. One of the circumstances listed in sub-article (2) is more than one month elapsed from the date on which the bill is tabled in the Council without the bill being passed by it. If it happens, the bill shall be deemed to have been passed by the Houses of the Legislature in the State in the form in which it was passed by the Legislative Assembly for the second time. If the deeming provision is there, the necessary consequences will have to follow. When the deeming provision is very clear, then just like other statutory provisions, which admit no different interpretation, external aids and any reference to the intention of the constitution makers is totally unwarranted.
28. As was observed by Cave, J., in R. v. Norfolk County Council, (1891)60 L.J. Q.B. 379 :
"Generally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is deemed to be. It is rather an admission that it is not what it is deemed to be, and that, notwithstanding it is not that particular thing, nevertheless -- it is to be deemed to be that thing."
29. Sub-rule (2) of Rule 142 of the Maharashtra Legislative Council Rules deal with how the Bill is to be taken into consideration and how the motion for the same is to be moved. As already pointed out, Article 197(2)(b) does not require that the Bill should be moved for consideration. What it requires is that the Bill should be tabled. Whether the Minister or Member avails the opportunity to move it, whether the Council avails the opportunity to consider it, are considerations irrelevant for the operation of the deeming provision. It is true that in cases like the present one, because of the prerogation of the Legislative Council, the Council may not get the opportunity at all to discuss the measure for the second time. But since the Constitution does not say that such a consideration was must before the deeming provision should be operative, we do not think that this fact can be taken a note of while considering the validity of the impugned Act.
30. In the result, petitions are dismissed. Rule discharged. There shall be no order as to costs of these petitions.
Petitions dismissed.