Patna High Court
Karpoori Thakur And Anr. vs Abdul Ghafoor And Ors. on 3 May, 1974
Equivalent citations: AIR1975PAT1, AIR 1975 PATNA 1, 1974 BLJR 407 ILR (1975) 54 PAT 88, ILR (1975) 54 PAT 88
JUDGMENT S.N.P. Singh. Ag. C.J. 1. This writ application under Article 226 of the Constitution of India, which has been filed by two members of the Bihar Legislative Assembly, raises certain constitutional questions. 2. Sri Abdul Ghafoor, Chief Minister of Bihar, is respondent No. 1, Sri Hari Nath Mishra, Speaker of the Bihar Legislative Assembly, is respondent No. 2 and the State of Bihar is respondent No. 3. 3. The facts relevant for the disposal of this writ application are not in dispute and they lie within a narrow compass In the General Election, which was held in the year 1972, the two petitioners and others were elected as the members of the Bihar Legislative Assembly. In the month of July, 1973, Sri Abdul Ghafoor (respondent No. 1) was appointed and sworn in as the Chief Minister of Bihar by the Governor of Bihar. On the advice of the Chief Minister, the other Ministers of the Council of Ministers were appointed and sworn in by the Governor on different dates. After the general election, Sri Hari Nath Mishra (respondent No. 2) was duly elected to the office of the Speaker of the Legislative Assembly sometime in the year 1972 and he is still continuing to hold that office. In exercise of the power conferred upon him under Article 174 (1) of the Constitution the Governor of Bihar summoned the Bihar Legislative Assembly to meet on the 18th of March, 1974. According to the time schedule fixed by the Governor, the session was to last till the 26th of April, 1974. The Governor of Bihar addressed the joint session of the Bihar Legislative Assembly and the Bihar Legislative Council on the 18th of March, 1974, in accordance with the provisions contained in Article 176 (1) of the Constitution. On the 18th of March, 1974, the Legislative Assembly met for debating on the Governor's address on what is commonly called "motion of thanks". Before the motion of thanks could be moved, a motion for the adjournment of the House was moved by the Treasury Benches. The Speaker ultimately adjourned the House sine die. Thereafter on the advice of the Council of Ministers the Governor prorogued the Assembly. 4. On the basis of the facts stated above, the petitioners' case, as disclosed in the writ application, is that (1) Prorogation of the House without debating on motion of thanks established that the State Government does not enjoy the confidence of the House and as such it is no longer a validly constituted Council of Ministers constitutionally entitled to carry on the work of the Government and (2) the fundamental rights of the citizens of Bihar are being illegally interfered with and are threatened with further interference by respondents 1 and 3, who have no legal authority to act in any manner affecting them. According to the petitioners, the House was prorogued on the advice of the Chief Minister (respondent No. 1) and his council of Ministers because they realised that they had lost confidence of the House and they were not in a position to get a motion of thanks on the Governor's address adopted by the House. The petitioners have accordingly prayed for issuance of a writ in the nature of mandamus to respondent No. 1 commanding him to tender his resignation and the resignation of other Ministers of the Council of Ministers and to restrain him from functioning as the Chief Minister of Bihar and respondent No. 3, the State of Bihar, from functioning as the Govt. of Bihar. 5. In paragraph 9 of the Writ Application the petitioners have made a vague allegation that the Speaker (respondent No. 2) arbitrarily adjourned the House sine die. It may be stated at the outset that Mr. Basudeva Prasad, who appeared on behalf of the petitioners, did not advance any argument on the question of adjournment of the House sine die by the Speaker. 6. The contentions which have been raised by Mr. Basudeva Prasad are summarised below; It was the constitutional obligation of the Chief Minister to obtain vote of confidence of the Legislative Assembly by successful passage of the motion of thanks on the Governor's address after due debate and voting in the first Session of the year and by that the approval of the Lower House to his Government's legislative programme and policy involving expenditure from the State funds etc., for the current year. The Chief Minister having failed to do so due to the prorogation of the House ceased to have the requisite constitutional and legal authority to continue in office with his Ministers and to advise the Governor in exercise of his functions under Article 163 (1) of the Constitution. In the absence of existence of confidence of the lower House in the Chief Minister and his Government it is mandatory constitutional duty of the Chief Minister to resign from his office. The prorogation of the House only after the notice of the motion of thanks and amendments to the address had been circulated terminated the entire proceeding beginning from 'the Governor's address. Since the proceedings relating to the Governor's address cannot be renewed because of the bar under Article 176 (1) of the Constitution, the Legislative Assembly stands paralysed for the future. It cannot, therefore, transact any business including passing of the Finance Act for Government expenditure after the 30th July, 1974. Thus the democratic Government in the State with respondent No. 1 as the Chief Minister has been made impossible. 7. In the United Kingdom the Queen and the two Houses of Parliament constitute the Legislature and the Queen is an integral part of the Legislature. The composition of Parliament has been described in Halsbury's Laws of England, Third Edition, Volume 28, at page 299 in these words; "The Parliament of the United Kingdom of Great Britain and Northern Ireland consists of the Sovereign and the three Estates of the Realm, namely, the lords spiritual and the lords temporal, who sit together in the House of Lords, and the elected representatives of the people, who sit in the House of Commons." In India the same model has been adopted. The President and the two Houses constitute Parliament and the Governor and one or two Houses constitute the State Legislatures. The functions which are discharged by the Queen as a part of the Legislature are, broadly speaking, discharged by the President or the Governor as part of the Legislature. Thus the President and Legislature (sic) at such time and place as they think fit, but so that six months do not intervene between its last sitting in one session and its first sitting in the next, The President and the Governor may from time to time prorogue the Houses or either House of the Legislature and they can dissolve the House of the People or the Legislative Assembly--vide Articles 85 and 174 of the Constitution. There are two Articles in the Constitution in which provisions have been made for the address by the Governor to the House or Houses of the Legislature. Article 175 (1) of the Constitution provides as follows:-- "The Governor may address the Legislative Assembly or in the case of a State having a Legislative Council, either House of the Legislature of the State, or both Houses assembled together and may for that purpose require the attendance of members." It will be noticed that Clause (1) of Article 175 enables the Governor to address either House of the Legislature or both Houses assembled together at any time and for any purpose. Article 176 is an important Article for our purpose and, as originally enacted it read as follows:-- "(1) At the commencement of every session, the Governor shall address the Legislative Assembly or, in the case of a State having a Legislative Council, both Houses assembled together and inform the Legislature of the causes of its summons. (2) Provision shall be made by the rules regulating the procedure of the House or either house for the allotment of time for discussion of the matters referred to in such address and for the precedence of such discussion over other business of the House." The power of address conferred upon the Governor under Article 176 (1) of the Constitution, as it originally stood, corresponded to the "speech from the Throne" in England. The Article was amended by the Constitution (First Amendment) Act, 1951 and for the words "every session" in Clause (1) of Article 176 the words "the first session after each general election to the Legislative Assembly and at the commencement of the first session of each year" have been substituted. Similar amendment was made in Article 87 (1) of the Constitution which confers power on the President to address both Houses of Parliament. In Clause (2) of Article 176 the words "and for the Precedence of such discussion over other business of the House" were deleted after the words "in such address". Corresponding amendment was also made in Article 87 (2) of the Constitution. The amendment was made with a view to assert the right of the two Houses to discuss such business as they liked and at such time as they liked, and not merely to discuss business required to be discussed by the President or the Governor. Thus, by the amendment a departure has been made from the English Practice. In England the Queen's speech is delivered or laid at the beginning of each session. The procedure which is followed there has been stated in May's Parliamentary Practice, Eighteenth Edition, at page 265 in these words; "In every session but the first of a Parliament, as there is no election of a Speaker, not any general swearing of Members, the session is opened at once by the Queen's speech, without any preliminary proceedings in either House. Until the causes of summons are declared by the Queen, either in person, or by com-mission, neither House can proceed with any public business, but the causes of summons, as declared from the Throne, do not bind Parliament to consider them alone, or to proceed at once to the consideration of any of them." What happens after the Queen's speech is delivered or laid has stated by May at page 268 thus: "When the Queen's speech has been read, an address in answer thereto is moved in both Houses. Two members in each House are selected by the Administration for moving and seconding the address; and until 1939 they appeared in levee dress for that purpose. The form of the address used to be an answer, paragraph by paragraph, to the speech. In both Lords and Commons, since the commencement of Session 1890-91, the answer to the royal speech has been moved in the form of a single resolution, expressing their thanks to the sovereign for the most gracious speech addressed to both Houses of Parliament and amendments to the address are moved by way of addition thereto, The transaction of public business is carried on whilst the proceedings on the address are in progress, bills being introduced, committees appointed, and statutory instruments considered. After the address has been agreed to, it is ordered to be presented to Her Majesty either by the whole House; or in the case of the address of the Upper House by the lords with white staves; and in the case of the address of the Commons by such members of the House as are of her Majesty's most Hon'ble Privy Council, or of Her Majesty's house hold. Her Majesty's answer to the address of each House is usually of a formal character. ........." 8. Under Article 208 (1) of the Constitution, Rules of Procedure and conduct of Business of the Vidhan Sabha (Bihar Legislative Assembly) were adopted by the Assembly and they are in force since 1st January, 1966 (hereinafter referred to as "the Rules"). At this stage I would refer to Rule 6 only which relates to the Governor's address under Article 176 of the Constitution. Rule 6 reads thus; "6 (1) Governor's address under Article 176 of the Constitution. At the time and place appointed for the commencement and holding of:-- (i) the first session after each general election to the Legislative Assembly; and (ii) The first session of each year, the Governor will address both Houses assembled together as required by Article 176 of the Constitution; Provided that the making of the prescribed oath or affirmation by a member and, in the case on the first session held after general election, the election of the Speaker may precede the Governor's address. (2) A debate on the address shall take place in the Assembly on a motion made by a member and seconded by another member. The form of the motion shall be- 'That the members are grateful to the Governor for the address.' The debate on the address shall be of a general character for which not more than four days shall be available to the Assembly. Amendment may be moved to such motion in such form as may be considered appropriate by the Speaker, (3) The debate on the address shall, on the first day take precedence over all other business except questions or any formal business but on any subsequent day or days it may be interrupted in favour of- (a) a question of breach of any of the privileges of the Assembly or of the members thereof; (b) a motion for an adjournment of the business of the Assembly for the purpose of discussing a definite matter of urgent public importance; (c) an urgent Government Bill; or (d) Private members business on the day appointed for it. (4) The Speaker may prescribe a time limit for speeches. (5) The Chief Minister or any other Minister, whether he has previously taken part in the discussion or not, shall, on behalf of the Government, have a general right of explaining the position of Government at the end of the discussion and the speaker may enquire how much time will be required for the speech so that he may fix the hour by which the discussion shall conclude. (6) A copy of the motions adopted shall be communicated to the Governor in such manner as the Speaker may determine. (7) The Speaker shall report to the Assembly the reply of the Governor to the motion," It will be noticed that as provided under Sub-rule (2), a motion of thanks has to be made by a member and seconded by another member before the debate on the address of the Governor takes place in the Assembly. In the instant case it is the admitted position that a notice of motion of thanks was circulated as also the notice of proposed amendments to the motion of thanks. But before the motion was "formally moved under Sub-rule (2), the House was adjourned sine die and ultimately prorogued. 9. On the contentions which have been raised on behalf of the petitioners, three questions fall for consideration, namely. (1) whether the motion of thanks to the Governor's address must be adopted by the Assembly before transacting any other business; (2) whether the notice of motion for vote of thanks lapsed as a result of the prorogation of the Assembly or it still survives: and (3) whether the provisions made in Sub-rules (2), (5), (6) and (7) of Rule 6 in relation to the Governor's address under Article 176 of the Constitution are mandatory or merely directory. 10. Before dealing with the aforesaid questions, I would like to state that Article 176 (1) of the Constitution makes it obligatory upon the Governor to make the opening address at the commencement of the first session of the Houses of the Legislature each year. The provisions of Article 176 (1) being mandatory, the Legislature cannot function unless the Governor performs his duty to make the address at the commencement of the first session. 11. Now I proceed to consider the three questions one after another. As provided under Sub-rule (3) of Rule 6 of the Rules on the first day the debate on the Governor's address shall have precedence over all other matters but on any subsequent day or days it may be interrupted in favour of certain matters including an urgent Government bill. It was submitted by the learned Advocate General appearing for Respondents 1 and 3 that Sub-rule (3) of Rule 6 makes it abundantly clear that other business of the House can be transacted before the motion of thanks to the Governor's address is adopted. He submitted that in fact the vote on accounts was moved and passed by the Assembly before the 18th of March, 1974, when the Assembly was prorogued without adopting the motion of thanks. There is substance in the contention which has been raised by the learned Advocate General. There is nothing in the Constitution itself to present the transaction of any other business by the Legislative Assembly before the adoption of the motion of thanks to the Governor's address. Under Article 176 (2) of the Constitution provision is to be made by the rules regulating the procedure of the House or either House for allotment of time for discussion of the matters referred to in the address of the Governor. Rule 6 of the Rules has evidently been made by the Assembly under Article 176 (2) read with Article 208 (1) of the Constitution. The only limitation which has been placed under Sub-rule (3) of Rule 6 is that on the first day of the debate on the address of the Governor no other business shall take place. On any subsequent day or days, however, the de-bale on the Governor's address may be interrupted in favour of certain other business specified in Sub-rules (3) (a), (b), (c) and (d) of the Rules. I have, therefore, no difficulty in holding that it is not necessary under the rules that the motion of thanks to the Governor's address must be adopted before transacting any other business. 12. Now I will consider the question whether the notice of motion for vote of thanks lapsed as a result of the prorogation of the Assembly or it still survives. Much has been said at the Bar for following the British Parliamentary practice and procedure in so far as the implications of our Parliamentary democracy and cabinet system are concerned. Here I may strike a note of caution on unequivocally following the British practice and procedure in deciding the issues involved in cases falling under our Constitution. It is true that the basic assumption of our Constitution regarding Parliamentary democracy and cabinet system is derived from the constitutional understandings of the unwritten constitution of the United Kingdom. But as Maitland in his "The Constitutional History of England" says at page 398: "We here find ourselves among rules which most clearly are not rules of law; we may call them rules of constitutional morality, or the customs or the conventions of the Constitution." As Lord Bryce once said, the British Constitution "works by a body of understandings which no writer can formulate." Our Constitution ''now contained in a written instrument" seeks to formulate with precision the powers and duties of the various agencies that it holds in balance. "That instrument" to quote the language of the Judicial Committee of the Privy Council in the case of Adegbonro v. Akintola (1963 Appeal Cases 614) at p. 632, "now stands in its own right; and, while it may well be useful on occasions to draw on British Practice or doctrine in interpreting a doubtful phrase whose origin can be traced or to study decisions on the Constitutions of Australia or the United States where federal issues are involved, it is in the end the working of the Constitution itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other constitutions which are not explicitly incorporated in the formulas that have been chosen as the frame of our Constitution. 13. According to the British Parliamentary system, a prorogation puts an end to all business which is under the consideration of either House at the time of such prorogation. In both Houses, therefore, any proceedings either in the House or in any Committee of the House lapse with the session -- vide Halsbury's Laws of England. Third Edition, Volume 28, at page 372. Anson in his book "Law and Custom of the Constitution", Fifth Edition, Volume I, at page 73, has stated as follows:-- "Prorogation takes place by the exercise of the royal prerogative it ends the session of both Houses simultaneously, and terminates all pending business. A bill which has passed through some stages, but is not ripe for the royal assent at the date of prorogation, must begin at the earliest stage when Parliament is summoned again, and opened by a speech from the Throne." Thus in England the prorogation of the Houses of Parliament kills all business pending before either House at the time of prorogation. As provided under Clause (3) of Article 196 of the Constitution, a bill pending in the Legislature of a State does not lapse by reason of the prorogation of the House or Houses thereof. 14. In the case of Purushottaman Nambudiri v. State of Kerala, AIR 1962 SC 694 the Supreme Court upon a consideration of the relevant Articles of the Constitution including Article 106 held that there was a significant departure from the English Convention inasmuch as the prorogation of the House or Houses under our Constitution does not affect the business pending before the Legislature at the time of prorogation. Gajendra-gadkar, J., who spoke for the Majority, observed as follows:-- "Under Clause (3) a Bill pending in the Legislature of a State will not lapse by reason of the prorogation of the House or Houses thereof. Thus, this Clause marks a complete departure from the English Convention inasmuch as the prorogation of the House or Houses does not affect the business pending before the Legislature at the time of prorogation. In considering the effect of dissolution on pending business it is, therefore, necessary to bear in mind this significant departure made by the Constitution in regard to the effect of prorogation. Under this clause the pending business may be pending either in the Legislative Assembly or in the Legislative Council or may be pending the assent of the Governor. At whichever stage the pending business may stand, so long as it is pending before the Legislature of a State it shall not lapse by the prorogation of the Assembly. Thus, there can be no doubt that unlike in England prorogation does not wipe out the pending business." Mr. Basudeva Prasad referred to rule 4 of the Rules and submitted that on termination of a session by prorogation, all pending notices except those mentioned in Rule 4 (i) lapse Rule 4 of the Rules reads; "4. On the termination of a session by prorogation- (1). all pending notices except those in respect of privilege motions, motions for leave to introduce a Bill, statutory motions, motions for the amendment of the rules and the motions the consideration of which has been adjourned to the next session under these rules shall lapse: (ii) bills shall be carried over to the next session from the stage reached by them in the preceding session; provided that proceedings pending before a Committee of the House shall not lapse by reason only of prorogation; Provided further that starred and unstarred questions, sent to the department of Government before the termination of the session shall not lapse on prorogation of the Assembly and their replies shall be laid on the Table of the House during the following session." According to Mr. Basudeva Prasad, a notice in respect of motion of thanks to the Governor's address is not excepted under Rule 4 (1), and as such it would lapse on the termination of a session by prorogation. The learned Advocate-General, however, submitted that "a notice in respect of motion of thanks to the Governor's address being a notice in respect of a statutory motion" is saved under Rule 4 (i). 15. In Rule 2 (1) of the Rules "statutory motion'' has been defined as a motion which is made in pursuance of any statute or enactment for the time being in force". The motion of thanks has to be made in pursuance of Rule 6 (2) of the Rules which is a statutory rule framed under Article 208 (1) read with Article 176 (2) of the Constitution. According to the interpretation of Mr. Basudeva Prasad, 'statutory motion' means a motion which is to be moved in pursuance of an Act of the Legislature and not a motion which is to be moved in pursuance of the constitutional provisions or in pursuance of the rules framed under the constitution. In support of his above interpretation, learned Counsel placed reliance on Rule 44 of the Rules which reads as follows:-- "A member who wishes to move a statutory motion shall give ten clear days notice unless it is otherwise expressly provided by the statute or enactment under which the motion is made or unless the Speaker with the consent of the Minister-in-charge of the Department concerned otherwise directs, and shall together with the notice submit a copy of the proposed motion." 16. The question, therefore, which has to be decided is whether a motion of thanks to the Governor's address is made in pursuance of a statute. If a narrow meaning is given to the word 'statute' then it will mean an Act of the Legislature only and the answer would be in the negative. If, however, a broader meaning is given to the word 'statute' to include rules made under the provisions of the Constitution, the answer would be in the affirmative. I am of the view that a broader meaning should be given to the word 'statute' occurring in Rule 2 (1) of the Rules so as to include rules made under constitutional provisions. Similarly, a broader meaning should be given to the word 'statutory motion' occurring in Rule 4 (i) to include motions made in pursuance of rules adopted by the Legislature under the provisions of the Constitution. The provision contained in Rule 44 of the Rules does not in any way lend support to the narrow interpretation put by Mr. Prasad on the word 'statute' or on the expression 'statutory motion'. It only prescribes that ordinarily ten days' notice has to be given by a member who wishes to move a statutory motion. It gives no clue to the interpretation of the word "Satute" or to the expression "Statutory motion". A Statute is nothing but the formal expression in writing of the will of the Legislative organ in a State. If the Legislative Assembly has adopted certain rules under constitutional provision they are nothing but a formal expression in writing of the will of Legislative Assembly. The broader meaning which I have given to the term "statutory motions" also finds support from the Statutory Instruments Act, 1946 of England, giving the more comprehensive name of "Statutory Instruments" to all subordinate Legislation. Rule 6 of the Rules of Procedure and Conduct of Business in the Bihar Vidhan Sabha as adopted by the Assembly on the 21st December. 1965, under Article 208 (1) of the Constitution read with Article 176 (2) of the Constitution, specially prescribing the form of the motion as "That the members are grateful to the Governor for the address", must be held to be a motion prescribed by a Subordinate Legislative body. As such, there does not seem any difficulty in holding that the motion in reply to the Governor's address should be deemed to be a 'Statutory motion'. 17. For the foregoing reasons, I am of the view that the notice of motion for vote of thanks to the Governor's address did not lapse as a result of the prorogation of the Assembly and it still survives and the motion can be formally moved, discussed and adopted in the next session of the Assembly. 18. This brings us to the third question, namely, whether the. provisions made in Sub-rules (2), (5), (6) and (7) of rule 6 of the Rules in relation to the Governor's address under Article 176 of the Constitution are mandatory or merely directory. In other words, whether the Legislative Assembly will be powerless to transact any business in the next session because the motion of thanks on the Governor's address was not moved, no debate on the address took place and the motion of thanks was not adopted in the first session which has been prorogued. According to Mr. Basudeva Prasad, the adoption of the motion of thanks on the Governor's address is not an empty formality. The Governor's address contains policy and programme of the Govt. and unless it is approved by the adoption of the motion of thanks, the Government cannot function. The provisions contained in Sub-rules (2), (5), (6) and (7) of Rule 6 of the Rules are, therefore mandatory. According to the learned Advocate-General though it is obligatory upon the Governor to make the opening address at the commencement of the first session of the House or Houses of Legislature every year, under Article 176 (1) of the Constitution, it is not the constitutional requirement that a motion of thanks should be formally moved on the Governor's address followed by a debate and adoption of the motion of thanks. The rules which have been made with regard to the debate on the Governor's address and the adoption of the motion of thanks are based on English convention and they are formal in nature. 19. The submissions made by the learned Advocate General appear to be correct. Anson in his book "Law and Custom of the Constitution", Fifth Edition, volume I, has stated at page 79 as follows:-- "The speech from the Throne setting forth the causes of summons may be necessary to put in motion the business of the Houses, but the addresses in answer are non-essential forms; for Parliament is not limited in legislation or discussion by the topics set forth from the Throne, and each House is at pains to show its independence of those topics by reading a Bill for the first time before entering upon the consideration of the King's speech." 20. It is well settled that the question as to whether the provision in a statute is Mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern and those are to be ascertained not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from considering it one way or the other. The same principle has been followed by the Supreme Court in construing the constitutional provisions. 21. In the case of the State of Bihar v. Kameshwar Singh, AIR 1952 SC 252 one of the points which was urged before the Supreme Court was that the provisions of Rule 20 (1) of the Rules of procedure framed by the Assembly under Section 84 of the Government of India Act, 1635, which continued in force until new rules were framed under Article 208 of the Constitution, were not followed. It was observed by Das, J. (as he then was) as follows:-- "..... the irregularity of procedure, if any, is expressly cured by Article 212. I am not impressed by the argument founded on the fine distinction sought to be made between an irregularity of procedure and an omission to take a particular step in the procedure. Such an omission, in my opinion, is nothing more than an irregularity of procedure." 22. In the case of State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 the question for consideration before the Supreme Court was whether the provisions of Article 320 (3) (c) of the Constitution are mandatory and non-compliance with those provisions would afforded cause of action to civil servant in a court of law. The Supreme Court held that the provision of Article 320 (3) (c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation should afford him a cause of action in a court of law or entitle him to relief under the special powers of a High Court under Article 226 and of the Supreme Court under Article 32 of the Constitution. 23. In the case of L. Hazari Mal v. I.T. Officer AIR 1961 SC 200 it was observed by the Supreme Court as follows:-- "The essence of the rule is that where consultation has to be made during the performance of a public duty and an omission to do so occurs, the action cannot be regarded as altogether void, and the direction for consultation may be treated as directory and its neglect, as of no consequence to the result." 24. In the case of State of Uttar Pradesh v. Babu Ram, AIR 1961 SC 751 the Supreme Court laid down the rules of interpretation in these words: "The relevant rules of interpretation may be briefly stated thus: When a statute uses the word 'shall', prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequence that flow therefrom and, above all whether the object of the legislation will be defeated or furthered." 25. In the case of Raza Buland Sugar Co. Ltd. v. The Municipal Board, AIR 1965 SC 895 it was observed by Wanchoo, J. as follows:-- "The question whether a particular provision of a statute which on the face of it appears mandatory inasmuch as it uses the word 'shall' as in the present case-- or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory." The most important decision of the Supreme Court bearing on the question is the case of State of Punjab v. Satya Pal Dang, AIR 1969 SC 903. In that case one of the points which was taken was that the certificate of the Deputy Speaker under Article 199 (4) was of no effect. It was contended that the Provision of Article 199 (4) was mandatory and only the Speaker of the Legislative Assembly should sign the Money Bill. The Supreme Court had, therefore, to consider the question whether the provision of Article 199 (4) was mandatory or merely directory. Hidayatullah, C.J., pointing out the distinction between a mandatory provision of law and a directory provision observed as follows:-- "The distinction between a mandatory provision of law and that which is merely directory is this that in a mandatory provision there is an implied prohibition to do the act in any other manner while in a directory provision substantial compliance is considered sufficient." The learned Chief Justice further made the following observation: "In those cases where strict compliance is indicated to be a condition precedent to the validity of the act itself the neglect to perform it is indicated as fatal. But in cases where although a public duty is imposed and the manner of performance is also indicated in imperative language the provision is usually regarded as merely directory when general injustice or inconvenience results to others and they have no control over those exercising the duty. "Judged from this test the provisions of Article 199 (4) cannot be viewed as mandatory but only as directory. If the constitution saw the necessity of providing a Deputy Speaker to act as the Speaker during the latter's absence or to perform the office of the Speaker when the office of the Speaker is vacant, it stands to reason that the constitution could never have reposed a power of mere certification absolutely in the Speaker and the Speaker alone. The happenings in the Assembly lend support to this inference. It is reasonable to think that the Speaker in his then mood might have declined to certify and a second impasse would have ensued. A similar situation may arise not because of intransigence but because of illness or absence. The inconvenience to the State and the public at large is avoided by holding the provision to be directory and not imperative. It might be mentioned that this Court has on occasions read apparently imperative provisions as directory only. In the case of 1958 SCR 533 = AIR 1957 SC 912 the provisions of Articles 311 (2) and 320 (1) (c) were read as directory notwithstanding the, mandatory language. Further it is interesting to note that the Parliament Act of 1911 in England has an identical provision enjoining certification by the Speaker. However, May in his 'parliamentary practice' gives numerous instances of Money Bills (from 1914 onwards) certified by the Deputy Speaker (See page 842) Further, again there is Article 213 Clause (1) which provides that the validity of any proceeding in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure This clause was invoked in respect of a Money Bill in Patna Zilla Truck Owners Association v. State of Bihar, AIR 1963 Pat 16 following a case of this Court in Mangalore Ganesh Eeedi Works v. State of Mysore 1963 Supp (1) SCR 275 = AIR 1963 SC 589. We are entitled to rely upon this provision. Our conclusion gets strength from another fact. There is no suggestion even that the Appropriation Bills were not Money Bills or included any matter other than that provided in Article 199 or were not passed by the Assembly. It is also significant that the Speaker wrote to the Chairman of the Legislative Council that there was no certificate by him and that he had adjourned the Assembly when the Bills were adopted but the Legislative Council in spite of objection considered and passed the two Bills and the Governor assented to them. We are of opinion that the two Bills were duly certified " 26. On the facts of the instant case, the ratio of the decision of the Supreme Court in the case referred to above is fully applicable. It would lead to general injustice and inconvenience to others who have no control over the proceedings of the House if it be held that the procedure prescribed in Sub-rules (2), (5), (6) and (7) are mandatory. Indeed, the framers of our Constitution by providing in Article 211 that the validity of any proceeding in the Legislature of a state shall not be called in question on the ground of any alleged irregularity of procedure clearly intended that the rules of procedure prescribed by a House are to be directory and not mandatory. I am, therefore, of the view that the procedure prescribed in Sub-rules (2), (5), (6) and (7) of Rule 6 of the Rules in relation to the address of the Governor are merely directory and non-observance of those rules has not vitiated the proceedings of the Assembly nor does it prevent the Legislative Assembly from functioning in future. 27. Now remains to consider some of the objections which were raised by the learned Advocate-General regarding the maintainability of the writ application at the instance of the petitioners. It was submitted that the petitioners in their personal status have no legal right to ask the Court to issue a writ in the nature of mandamus to the Chief Minister not to function and to resign. 28. The jurisdiction of the High Court under Article 226 is a supervisory jurisdiction. Our constitution-makers have borrowed the conception of prerogative rights from the English law and the essential principles relating to such prerogative rights are applied in India. It is obvious that the remedy provided under Article 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. It is a well settled principle that the condition precedent for the issue pf mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. Thus the applicant for a writ of mandamus must have a legal and specific right to enforce the performance of a public duty. Under the provisions of Article 164 (1) of the Constitution the Chief Minister and other Ministers of the Council of Ministers are appointed by the Governor and they hold office during the pleasure of the Governor. As provided under Clause (2) of Article 164, the Council of Ministers are collectively responsible to the Legislative Assembly of the State. The question for consideration is: can one or two members of the Legislative Assembly agitate in a court of law that the Chief Minister and other Ministers of the Council of Ministers have lost confidence of the House and ask the Court to issue a mandate on them to resign ? The answer must be in the negative for the obvious reason that the Council of Ministers are collectively responsible to the Legislative Assembly of the State and not to the individual members thereof. The individual members of the Legislative Assembly, therefore, have no legal right to claim resignation of the Chief Minister and the other Ministers of the Council of Ministers. The learned Advocate-General is, therefore, right in his submission that no writ of mandamus can be issued at the instance of the petitioners asking the Chief Minister to resign his office. 29. In England also Parliament exercises dominating control over the action of the executive Government inasmuch as a Minister of the Crown is held responsible to the Parliament for any act done by him in his ministerial capacity or by the ministry or the department of which he is the political head but only an adverse vote in the House of Commons on a question of confidence is followed by resignation. As stated in the foot note (m) at page 178 in Halsbury's Laws of England. Volume 24. 2nd Edition: "There is no rule pf law which compels a Ministry which has lost the confidence of the House of Commons to resign office. It is usual however, in ordinary circumstances for a Govt. to resign or advise the Sovereign to dissolve Parliament when it has been placed in a minority in the House of Commons on a division upon any matter reflecting upon its policy in general or upon any proposal contained in a Bill which it has introduced into Parliament. A Government which has been defeated in the House of Commons on a direct vote of confidence has no alternative but to resign. This is what Maitland describes in his "The Constitutional History of England" as the growing solidarity of the cabinet based on three Principles, namely, (1) political unanimity, (2) common responsibility to Parliament, and (3) submission to a common head. In India also there is no rule of law compelling a Ministry which has lost the confidence of the Legislative Assembly to resign office. But the long established British Convention may also be followed here and if a Ministry loses the confidence of the Legislative Assembly it may resign office. It was submitted by the learned Advocate-General that the High Court cannot issue a writ of mandamus on a Ministry to resign office even where it has lost the confidence of the Legislative Assembly as there is no rule of law that a Ministry must resign in such a situation. In the instant case the petitioners have not alleged that the Ministry headed by Sri Abdul Ghafoor has lost the confidence of the Legislative Assembly by adoption of a vote of no confidence by the House. On the contrary, it is the admitted position that the Ministry headed by Sri Ghafoor (Respondent No. 1) secured the implied confidence of the House by getting the vote on accounts of the Appropriation Bill passed by the Assembly after the Governor's Address. In course of his argument Mr. Basudeva Prasad urged that there was an implied lack of confidence on the Policy and programme of the Govt. headed by Sri Ghafoor because the motion of thanks on the Governor's address was not put to vote and debate. The argument of Mr. Prasad is misconceived for the obvious reason that there is no limitation on the Government to follow exactly the same policy and programme as disclosed in the Governor's address. The Government may change its policy and programme from time to time. Therefore, there is no question of implied lack of confidence on the policy and programme of the Government because the motion of thanks was not put to vote and adopted. In England there are instances where the Government, though defeated in the House of Commons, even upon an amendment to the Address in reply to the Speech from the Throne, have not resigned office--vide foot note (m) at page 178 of Halsbury's laws of England. Vol. 24, 2nd Edition. 30. Under the Indian Constitution the Council of Ministers in a State is subject to a dual check in so far as, as already stated, it is collectively responsible to the Legislative Assembly and holds office during the pleasure of the Governor. The tenure of the Ministers holding office Durante Bene Placito under Article 164 (1) cannot be hedged in except by any limitation in the Constitution itself. Again, the continuance of a Ministry in office, on account of lack of confidence in it by the Legislative Assembly, may not be possible on grounds of Political expediency. The pleasure of the Governor and the practical limitations arising out of political expediency on account of the exigencies of a particular situation may act as a practical check upon the misuse or abuse of power by the Council of Ministers or of that of the Governor. These are issues not of constitutional law but of practical politics. I am, therefore, inclined to take the view that this Court by issue of a writ of mandamus cannot compel the Chief Minister to resign in the absence of a dismissal by the Governor on an implied assumption of a lack of confidence by the Legislative Assembly. 31. For the foregoing reasons. I am of the view that Mr. Basudeva Prasad is not correct in his submission that there is implied lack of confidence on the Policy and programme of the Government headed by Sri Ghafoor because the motion of thanks on the Governor's address was not put to vote and adopted. However, I am not expressing my final opinion on the question as to what would have been the constitutional position if in fact the motion of thanks on the Governor's address would have been put to vote and lost. 32. The learned Advocate-General also raised the contention that the writ is not maintainable as there was no demand for resignation and there was a refusal. It is not necessary to consider this question in view of the fact that I have accepted the contention of the learned Advocate-General that the petitioners in their personal status as members of the Legislative Assembly have no legal right to ask the Court to issue a writ in the nature of mandamus to the Chief Minister not to function and to resign. 33. Another contention was raised by the learned Advocate-General to the effect that there being ample provision in the Constitution itself in respect of the contingency under which the Government for the time being finds its policy overthrown by the House, the Court cannot supplant a further remedy. The learned Advocate-General developed this argument in this way. He submitted that under Article 164 (1) of the Constitution the Chief Minister and the other Ministers of the Council of Ministers are appointed by the Government and they hold office during the pleasure of the Governor. The Governor is, therefore, the pro-per authority to dismiss the Chief Minister and the Ministers if he is satisfied that the Chief Minister and the Council of Ministers do not command support of majority of the members of the House of the Legislative Assembly. The other alternative is that if a Ministry does not command support of the majority of the members of the House of the Legislative Assembly, it may advise the Governor to dissolve the Assembly and the Assembly may be dissolved by the Governor. The Court cannot supplant a third remedy and ask the Chief Minister to resign. The contention raised by the learned Advocate-General is not without substance. It is well-settled principle that if an alternative remedy is available, the High Court will not exercise its discretionary powers of issuing a writ of mandamus. The application of the petitioners is, therefore, liable to be dismissed on this ground as well. 34. Having given my careful consideration to all the questions which were raised on behalf of the parties, during the course of the hearing of the writ application. I hold that the petitioners are not entitled to any of the reliefs prayed for in the writ application or to any other relief. The application is accordingly dismissed. In the circumstances, however, there will be no order as to costs. S.K. Jha, J.
35. I agree.