judgement:
N: Civil Appeal No. 6016 of 1983 etc.
From the Judgment and Order dated 3.5.1983 of the Alla habad High Court in Civil Misc.
Writ Petition No. nil of 1983.
Yogeshwar Prasad, R.K. Garg, Mrs. Rani Chhabra, V.J. 664 Francis, N.M. Popli and D.K. Garg for the Appellants.
Anil Dev Singh and Mrs. Shobha Dikshit for the Respondents.
1982 issued by the Government of Uttar Pradesh laying down the qualifica tion regarding eligibility of a candidate to be considered for admission to the post graduate degree in M.D., M.S. and diploma course in M.D., M.S. etc.
on the basis of merit in accordance with the Regulations made under the Indian Medi cal Council Act is invalid as it trenches upon Entry 66 of List I of the Seventh Schedule to the Constitution.
Civil Appeal No. 6119 of 1983 is against the judgment and order dated 22.4.
1983 made in Civil Misc.
Writ Petition No. 946 of 1983 by the High Court of Allahabad dismissing the writ petition holding that it was within the competence of the State Government to issue the aforesaid notice laying down the qualification of eligibility for being considered for admission to the post graduate course by issuing notice dated 15.12.1982 and that the said notice is not repugnant to or encroach upon the field covered by Entry 66 of the List I of the Seventh Schedule to the Constitution.
Special leave petition No. 7925 of 1983 out of which Civil Appeal No. 6016 of 1983 arises is also directed against the order dated 3.5.1983 summarily dismissing the writ petition No. Nil raising the identical question i.e. challenging the aforesaid notice dated 15.12.1982 issued by the State of Uttar Pradesh.
The other writ petitions have been filed before this Court challenging also the power of the State of U.P. to such notice dated 15.12.1982 and raising the similar ques tion of law.
The salient facts of all these cases in brief are as fol lows: In accordance with the provisions of Section 33 of the , the Medical Council with the previous sanction of the Central Government made the Regulations laying down the standards for proficiency to be obtained and the practical training to be undertaken in medical institutions for grant of recognised medical quali fication.
The said Regulations as approved by the 665 Central Government lay down the criteria for selection of candidates for post graduate training as follows: "(a) Students of post graduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course.
All selection for post graduate stud ies should be conducted by the Universities.
(b) The candidates should have obtained full registration i.e. they must have completed satisfactorily one year of compulsory rotating internship after passing the final MBBS exami nation and must have full registration with State Medical Council.
(c) They must subsequently have done one year 's housemanship prior to admission to the post graduate degree or diploma course.
House manship should preferably be for one year in the same subject or at least six months in the same department and the remain ing six months in an allied department provid ed that in departments like Radiology/ Anaes thes, biology/physical medicine and Rehabili tion where suitable candidates who have done housemanship in Medicine and/or in the surgery may be considered as sufficient.
Must have alternatively worked as a Full time postgraduate student in a manner equivalent to housemanship requirements, in the department concerned before taking up the post graduate courses.
" The post graduate Committee was of the opinion that in order to determine the merit of a candidate for admission to post graduate medical courses, (i) his performance at the MBBS examination; (ii) his performance during the course of internship and housemanship for which a daily assessment chart be maintained and (iii) the report of the teachers which is to be submitted periodically may be considered.
Alternatively the authorities concerned may conduct competitive entrance examination to determine the merit of a candidate for admission to post graduate medical courses.
666 The period of training for M.D., M.S. shall be three years after full registration including one year of house job or equivalent thereof.
" The State Government issued a notice on 15.10.
1982 inviting applications for admission to the various post graduate courses in degree and diploma in the different specialities of the medical colleges.
In para 4 of the said notice it has been specifically stated that the minimum eligibility qualification of the applicants would be accord ing to the recommendations of Medical Council of India.
There are other terms and conditions regarding filling up of the seats of the various disciplines which being not rele vant for consideration in these matters, are not mentioned herein.
The terms and conditions of the said notice clearly stated that the admission will be made as per existing rules and regulations of the Government and the college and recom mendations of the Medical Council of India.
Thereafter a Government Order dated 15.12.1982 was issued by the Govern ment wherein it has been provided in para 6 to the following effect: "No candidate shall be eligible for admission to postgraduate Degree or Diploma Course, who has obtained less than 55% and 52% marks respectively, for the two courses (Degree & Diploma) in merit calculated in accordance with para 2 of the said notice:" Para 2 of this notice lays down the manner of determin ing the merit of a candidate for the purpose of considering his admission to the post graduate course in State Medical Colleges.
In accordance with the said Government Order dated 15.12.1982, a candidate in order to be eligible for consid eration for admission to the post graduate course on merit must have secured 55% marks for admission to post graduate degree course and 52% marks for admission to the post gradu ate diploma course.
Thus a candidate having not secured the requisite marks in MBBS examination will be ineligible for consideration on the basis of merit for admission to the various post graduate courses in medical college.
The unsuc cessful candidates who are not eligible for consideration according to this Government Order have questioned the power ' of the State Government in making the aforesaid order on the ground that the Medical Council by its Regulations has already laid down the requisite criteria or standards for admission to the post graduate courses in the Medical Colleges in accordance with the merits of the candidates con 667 cerned and as such the State Government is not competent to lay down further eligibility qualification for the candi dates for being considered for admission in the post gradu ate courses both in the degree and diploma courses.
It has also been contended that the State Government is not compe tent to lay down or prescribe the said qualification which, it is alleged, encroaches upon the power of the Central Government as provided in Entry 66 of List 1 of the Seventh Schedule.
It has also been pleaded in the petition that Entry 25 of List III of Seventh Schedule to the Constitution is subject to the provisions of Entry 66 of List I and as such the said Government Order being repugnant to the Regu lations made by the Indian Medical Council and approved by the Central Government pursuant to Section 33 of the , is invalid.
The writ petition was heard and was dismissed on 22nd April, 1983 by the High Court of Allahabad holding that the State Government is competent to make the Order under Entry 25 of List III of the Seventh Schedule to the Constitution in exercise of its executive power under Article 162 of the Constitution of India.
It was further held that the said Government Order does not, in any way, encroach upon or conflict with the power of the Central Government to make orders under Entry 66 of List I of Seventh Schedule to the Constitution, as the screening envisaged on the basis of the minimum percentage of marks acts in further implementation of the Regulations made under the .
It was also held that the notification in question is prospective in its terms as it applies to all candidates who sought admission on or after 15.12.
It is against this judgment and order the Civil Appeal No. 6119 of 1983 has arisen by special leave.
Similarly Civil Appeal No. 6016 of 1983 has also arisen by special leave against the judgment and order of High Court of Alla habad dated 3.5.1983 made in writ petition No. nil of 1983.
Both these Civil Appeals as well as the writ petitions concern the admission of students in the post graduate courses in the Medical Colleges for the session commencing on 1st April, 1983 and ending on 31st of March, 1984, in case of diploma course or ending on 31st March, 1985 in case of Degree course.
Undoubtedly, this session has long expired and as such the applicants in the writ petitions or the appellants in the said appeals will ' not be benefitted even if the decision is 668 rendered in their favour.
However, we deem it fit and proper to dwell upon the only contention raised before this Court regarding the validity of the Government order dated 15.12.
1982 whereby the Government of Uttar Pradesh have specifi cally laid down in para 6 of the Order the eligibility qualification i.e. obtaining of 55% marks or 52% marks for being eligible for consideration for admission in the post graduate degree or diploma courses respectively in accord ance with the Regulations made by the Indian Medical Council for consideration strictly or merit for admission to the said post graduate courses both degree and diploma.
It has been urged with some vehemence that it is within the prov ince of Medical Council to make recommendations under Sec tion 33 of the prescribing the standards or criteria for selection of candidates for post graduate training and the Central Government accepted them by framing Regulations.
The State Government by its order dated 15.12.1982 prescribed a further criteria or standard of eligibility for the candidates to be considered for admission to post graduate degree or diploma course and this is in conflict with the Regulations and as such it is in valid as it encroaches upon the power of the Central Govern ment provided in Entry 66 of List I of the Seventh Schedule of the Constitution.
In order to consider and determine this question it is relevant to look into the Regulations made by the Indian Medical Council under Section 33 of the said Act.
The Regu lations have been enumerated at pages 4 5.
These Regulations thus provide that the students of postgraduate training are to be selected strictly on merit judged on the basis of academic record in the under graduate course and that all selections for post graduate studies are to be conducted by the Universities besides looking to the other criteria regarding rotating internship, housemanship etc.
The Govern ment of Uttar Pradesh issued a notice on 15.10.1982 inviting applications in prescribed form for admission to the post graduate degree and diploma courses for the different Medi cal Colleges of the province.
In para 4 of the said notice it has been specifically provided that the minimum eligibil ity qualification of the applicants would be according to the recommendations of the Medical Council of India.
On 15.12.1982, the Government issued another order laying down the policy and procedure to be followed with regard to the admission of candidates to the post graduate courses (both degree and diploma) in State Medical Colleges.
In this order in para 6 it has been specifically provided that "no candi date shall be eligible for admission for post graduate degree or diploma course who has obtained less than 55% and 52% marks respectively 669 for the two courses (degree and diploma) on merit to be calculated in accordance with para 2 of the said order.
" It is this eligibility criteria laid down in the said Govern ment order which is the subject matter of challenge in these appeals and writ petitions before this Court.
The said order modifies to a certain extent the earlier notification issued on 15.10.1982 inviting applications for admission to the post graduate courses as per notification dated 3.12.
In the notification dated 3.12.1980, the criteria for admission to the post graduate courses was on the basis of merit only.
In para 2 of the said order the manner how the merit is to be determined has been laid down.
In that order there was no such criteria laid down as men tioned in the Government order dated 15.12.
Two ques tions arise for our consideration which are firstly whether the State Government is competent to make the aforesaid order in question in exercise 'of its executive powers under Article 162 of the Constitution.
This Article specifically provides that the executive powers of the State shall extend to matters with respect to which the legislature of the State has power to make laws.
Entry 25 of the Concurrent List i.e. List III of the Seventh Schedule to the Constitu tion provides as follows: "Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.
" The State Government can in exercise of its executive power make an order relating to matters referred to in Entry 25 of the Concurrent List in the absence of any law made by the State Legislature.
The impugned order made by the State Government pursuant to its executive powers laying down the eligibility qualification for the candidates to be consid ered on merits for admission to the post graduate courses in Medical Colleges in the State, is valid and it cannot be assailed on the ground that it is beyond the competence of the State Government to make such order provided it does not encroach upon or infringe the power of the Central Govern ment as well as the Parliament provided in Entry 66 of List I. Entry 66 of List I is in the following terms: "Co ordination and determination of standards in institutions for higher education or re search and scientific and technical institu tions.
" 670 The only question to be considered is whether the im pugned order is repugnant to or encroaches upon or is in conflict with the power of the Central Legislature to make laws in respect of matters specified in Entry 66 of List I of the Seventh Schedule to the Constitution.
The Indian Medical Council pursuant to Section 33 of the had made certain recommendations which have been embodied in the Regulations made by the Central Government laying down the criteria or standards for admitting the candidates to various post graduate disciplines in the Medical Colleges of the State.
These Regulations, as has been quoted hereinbefore, clearly prescribe that the candi dates should be selected strictly on merit judged on the basis of academic record in the undergraduate courses i.e. MBBS Course and this selection should be conducted by the University.
There are also other eligibility qualifications provided in the said Regulations namely the candidates must have obtained full registration i.e. they must have complet ed satisfactorily one year of compulsory rotating internship after passing the final MBBS examination and also they must have done one year 's housemanship prior to admission to the post graduate degree or diploma course.
The impugned Government order dated 15.12.
1982 lays down the criteria or eligibility qualification i.e. obtain ing of 55% marks by candidates seeking admission in the post graduate degree course and obtaining of 52% marks by candidates seeking admission to postgraduate diploma course for being considered for selection.
Entry 25 conforms on the State Government as well as the State Legislature the power to make orders in respect of matters mentioned in Entry 25 of List III of the Seventh Schedule to the Constitution i.e. with regard to medical education the only limitation being that such order of the State legislature will be subject to the provisions of Entry 66 of List I i.e. Co ordination and determination of standards in institutions for higher educa tion or research and scientific and technical institutions.
The order in question merely specifies a further eligibility qualification for being considered for selection for admis sion to the post graduate courses (degree and diploma) in the Medical Colleges in the State in accordance with the criteria laid down by Indian Medical Council.
This does not in any way encroach upon the Regulations that have been framed under the provisions of Section 33 of the .
On the other hand in order to promote and further the determination of standards in institutions for higher education, the State Government who runs these colleges provide an additional eligibility qualification.
A similar question crept up in the case of State of A.P. & Ors., vs Lavu Narendranath &.Ors.
; , In 671 that case the Government of Andhra Pradesh prescribed for the first time in July, 1970 an entrance test for admission to the Medical Colleges and also prescribed the standard for eligibility for the test.
The validity of this order pre scribing the entrance test was challenged by some unsuccess ful candidates on the ground that it encroaches upon the central subject listed in Entry 66 of List I of Seventh Schedule to the Constitution.
It was held by the Court that this test prescribed by the Government in no way militated with the powers of the Parliament under Entry 66 of List I of the Seventh Schedule to the Constitution.
It was also held that the Entry conferred power on the Parliament to make laws for laying down how standards in an institution for higher education are to be determined and how they can be co ordinated.
It had no relation to a test prescribed by Government or by a university for selection of a number of students from out of a large number applying for admission to a particular course of study.
In the instant case the number of seats for admission to various post graduate courses both degree and diploma in Medical Colleges is limited and a large number of candidates undoubtedly apply for admission to these courses of study.
In such circumstances the impugned order laying down the qualification for a candidate to be eligible for being considered for selection for admission to the said courses on the basis of the merit as specified by Regulations made under the , cannot be said to be in conflict with the said Regulations or in any way repug nant to the said Regulations.
It does not in any way en croach upon the standards prescribed by the said Regula tions.
On the other hand by laying down a further qualifica tion of eligibility it promotes and furthers the standard in an institution.
The Government who runs these colleges has the right to prescribe a test of eligibility as has been held by this Court in the case referred to above.
Similar question came up for consideration before this Court in the case of R. Chitralekha and Anr.
vs State of Mysore & Ors.
, ; In that case the Government of Mysore appointed one Selection Committee for settling the admissions to the Engineering Colleges and another such committee for settling admissions to Medical Colleges.
By a letter the Government of Mysore intimated the Director of Technical Education that 25% of the maximum marks for the examination in the optional subjects shall be fixed as interview marks for making selection of candidates for admission to the Engineering Colleges.
The Selection Commit tee fixed the minimum 672 marks for interview at 75.
On the basis of the marks ob tained by the candidate in examination as well as in inter view, selections were made.
This was challenged as infring ing upon the power of the parliament to make laws under Entry 66 of List I of the Seventh Schedule to the Constitu tion.
It had been held that if the State Legislature pre scribed a higher percentage of marks for extra curricular activities in the matter of admission to colleges, it could not be held that such an order directly encroached upon the ' field covered by Entry 66 of List I of Seventh Schedule to the Constitution.
The State Government was held to be within its rights for prescribing qualifications for admission to colleges so long as its action did not contravene any other law.
Similar observation has been made also by this Court in the case of Minor P. Rajendran vs State of Madras & Ors., ; On a consideration of the aforesaid decisions we are unable to hold that the impugned order dated 15.12.1982 has in any way contravened or encroached upon the power of the Central Legislature to make laws or the Central Government to make orders in regard to matters provided in Entry 66 of List I of Seventh Schedule to the Constitution.
There is no conflict between the Regulations and also the order in question.
The State Government by laying down the eligibili ty qualification namely the obtaining of certain minimum marks in the MBBS examination by the candidates has not in any way encroached upon the Regulations made under the nor does it infringe the central power provided in the Entry 66 of List I of the Seventh Schedule to the Constitution.
The order merely provides an additional eligibility, qualification.
We are in full agree ment with the reasoning and conclusion of the High Court in this respect.
This contention therefore, in our considered opinion, is without any merit.
It is pertinent to mention in this connection that the number of seats allotted to each of the prescribed courses is on the basis of two seats per professor and there is a crying necessity in the State for more experts in various disciplines in Medicine and Surgery etc.
It is incumbent on the State Government to see that all these seats earmarked for each of these disciplines or courses are filled up.
It appears from Annexure D to the petition in C.A. No. 6119 of 1983 that quite a considerable number of seats in various disciplines were kept vacant as the applicants did not fulfil the eligibility qualification framed by the State Government by its aforesaid order and as a result several professors and Assistant professors who are meant for imparting teaching in these disciplines were kept idle though a considerable fund had to be expended for meeting their emoluments It is for the 673 State to consider and to see that the seats are filled up in all the disciplines and they are not left vacant in spite of a large number of applicants applying for admission in the various disciplines and the State Government has to evolve such criteria of eligibility that all the seats in different M.D., M.S. degree and diploma courses are filled up.
For the reasons aforesaid, the judgments and orders made by the High Court of Allahabad on April 22, 1983 and May 3, 1983 are confirmed and both the Civil Appeals as well as all these writ petitions are dismissed.
There will however, be no order as to costs.
S.R. Appeals & Petitions dismissed.

summary/full:
While the Central Government as well as the Parliament has the power to make laws under Entry 66 of List I of the Seventh Schedule for the purpose of "coordination and deter mination of standards in institutions for higher education or research and scientific and technical institutions", the State Government by virtue of the executive powers vested under Article 162 of the Constitution has also the power to make laws under Entry 25 of the Concurrent List III of the Seventh Schedule in respect of "Education, including techni cal education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour".
In accordance with the provisions of section 33 of the , the Medical Council with the previous sanction of the Central Government made the Regulations laying down the standards of proficiency to be obtained and the practical training to be undertaken in medical institutions for grant of recognised medical quali fication.
The said Regulations lay down the criteria for selection of candidates for post graduate training and one such criteria is "students of post graduate training should be selected strictly on merit judged on the basis of academ ic record in the undergraduate course".
While inviting applications by its notice dated 15.10.82 for admission to the various post graduate courses in degree and diploma in the 662 different specialities the State Government issued an order dated 15.12.82, para 6 of which was to the effect that "No candidate shall he eligible for admission to post graduate degree or diploma course, who has obtained less than 55% and 52% marks respectively for the two courses (Degree and Diploma) in merit calculated in accordance with para 2 of the said notice.
" Some of the candidates who were denied admission on the ground that they have obtained less than the prescribed percentage of marks have approached the Supreme Court under Article 32 of the Constitution and some others have come by way of special leave having lost their writ petitions before the Allahabad High Court.
The only question that arose was the competency of the State Government to prescribe the minimum marks obtained in MBBS for admission to post graduate courses and whether such an order is in conflict with the power of the Central Legis lature to make laws in respect of matters specified in Entry 66 of List I of the Seventh Schedule.
Dismissing the appeals and the petitions, the Court, HELD: I.1.
The State Government order dated 15.12.82 has not in any way contravened or encroached upon the power of the Central Legislature to make laws or the Central Government to make orders in regard to matters provided in Entry 66 of List 1 of Seventh Schedule to the Constitution There is no conflict between the Regulations and also the order in question.
The State Government by laying down the eligibility qualification namely the obtaining of certain minimum marks in the MBBS examination 'by the candidates has not in any way encroached upon the Regulations made under the nor does it infringe the central power provided in the Entry_ 66 of List I of the Seventh Schedule to the Constitution.
The order merely provides an additional eligibility, qualification [672C F] 1.2 The State Government can in exercise of its execu tive power under Article 162 of the Constitution make an order relating to matters referred to in Entry 25 of the Concurrent List in the absence of any law made by the State Legislature The impugned order made by the State Government pursuant to its executive powers laying dawn the eligibility qualification for the candidates to he considered on merits for admission to the post graduate courses in Medical Col leges in the State, is valid and it cannot he assailed on the ground that it is beyond the 663 competence of the State Government to make such order pro vided it does not encroach upon or infringe the power of the Central Government as well as the Parliament provided in Entry 66 of List I. The impugned order dated 15.12.82 lays down the criteria or eligibility qualification i.e. obtain ing 55% of marks by candidates seeking admission in the post graduate degree course and obtaining of 52% marks by candi dates seeking admission to post graduate diploma course for being considered for selection.
The order in question merely specifies a further eligibility qualification for being considered for selection for admission to the post graduate courses (degree and diploma) in the medical colleges in the State in accordance with the criteria laid down by the Indian Medical Council.
This does not in any way encroach upon the Regulations that have been framed under the provi sions of section 33 of the .
On the other hand in order to promote and further the determi nation of standards in institutions for higher education, the State Government who runs these colleges provide an additional eligibility qualification, under its own right.
[669E G; 670D H] 1.3 In the instant case the number of seats for admis sion to various post graduate courses both degree and diplo ma in Medical Colleges is limited and a large number of candidates undoubtedly apply for admission to these courses of study.
In such circumstances the impugned order laying down the qualification for a candidate to he eligible for being considered for selection for admission to the said courses on the basis of the merit as specified by Regula tions made under the , cannot be said to he in conflict with the said Regulations or in any way repugnant to the said Regulations.
It does not in any way encroach upon the standards prescribed by the said Regulations.
On the other hand by laying down a further qualification of eligibility it promotes and furthers the standard in an institution.
[671D E] State of A.P. & Ors.
vs Lavu Narendranath & Ors.
; , ; R. Chitralekha and Anr.
vs State.of Mysore Madras & Ors., ; , referred to.


judgement:
Civil Appeal No. 8 of 1957.
Appeal from the judgment and order dated the 30th August, 1955, of the Allahabad High Court in Special Appeal No. 8 of 1955 arising out of the judgment and order dated the 10th December, 1954, of the Single Judge of the Allahabad High Court in Civil Misc.
Writ No. 1245 of 1954.
R. section Narula, for the appellant.
B. B. Tawakley and K. P. Gupta, for the respondent.
September 17.
The following Judgment of the Court was delivered by section K. DAS, J.
This appeal has been preferred to this Court on the strength of a certificate granted by the High Court of Allahabad on February 3, 1956, to the effect that the case is a fit one for appeal to the Supreme Court under article 133(1)(c) of the Constitution.
The question that falls for decision is the true scope, meaning and effect of cl, (g) of section 13 D of the U. P. Municipalities Act, 1916 (U. P. II of 1916), hereinafter referred to as the Act.
The relevant facts, which are not now in dispute, are these.
There was a general election to the Municipal 54 420 Board of Bareilly in October, 1953.
The appellant, Mangoo Singh, and respondent No. 3, Imdad Husain, along with sever al others, were candidates at the said election from Ward No. 15.
The date fixed for filing nominations was October 5, 1953, and the date for scrutiny of the nominations filed was October 7, 1953.
The appellant and respondent No. 3 both filed their nominations on the due date, and at the time of scrutiny lmdad Husain raised an objection to the nomination of the appellant on the ground that the latter was disqualified under cl.
(g) of section 13 D of the Act for being chosen as a member of the said Municipal Board because he was in arrears in the payment of municipal tax in excess of one year 's demand.
This objection was dismissed, and the nomination of the appellant was accepted by the Assistant Returning Officer.
The poll took place on October 26, 1953, and the counting of votes was done on October 29, 1953.
Four persons were to be elected from the said Ward, and the appellant was the third in the list by reason of the number of votes which he had obtained.
Imdad Husain was fifth in the list.
Accordingly, the appellant was declared as one of the returned candidates, and lmdad Husain was at the top of the unsuccessful candidates.
lmdad Husain then filed an election petition to set aside the election of the present appellant on various grounds.
The only ground with which we are now concerned is the disqualification under cl.
(g) of section 13 D of the Act.
This election petition was heard by the Election Tribunal and by its judgment dated October 20, 1954, the Election Tribunal held that the appellant was in arrears in the payment of municipal tax in excess of one year 's demand to which section 166 of the Act applied and, there fore, came under the disqualification in cl.
(g) of section 13 D of the Act It further held that the payment of a sum of Rs. 115 3 0 on October 10, 1953, five days after the date fixed for the filing of nominations, did not wipe off that dis qualification, and the appellant was not entitled to the benefit of the second proviso to section 13 D of the Act.
It may be here stated that the Election Tribunal also held that no bill for payment of the tax was presented to the appellant 421 as required by section 166, nor was any demand notice served on him as required by section 168 of the Act.
On the above find ings, the Tribunal allowed the election petition, set aside the election of the appellant and declared a casual vacancy under cl.
(a) of sub section
(2) of section 25 of the Act, which vacancy was subsequently filled up by the election of the third respondent on April 5, 1955.
The next general elec tion in the Municipality is due in October, 1957.
Against the decision of the Election Tribunal, the appellant moved the High Court of Allahabad for the issue of a writ under article 226 of the Constitution.
The main point urged by the appellant was that the Election Tribunal was in error in its interpretation of cl.
(g) of section 13 D of the Act.
Cha turvedi J. who dealt with the application of the appellant, agreed with the view of the law as expressed by the Election Tribunal and dismissed the application.
The appellant then preferred an appeal to a Division Bench of the said High Court.
This appeal was also dismissed by Agarwala and Sahai JJ.
by their judgment dated August 30, 1955.
The appellant then moved and obtained a certificate of fitness under article 133(1)(c) of the Constitution from the said High Court.
Learned counsel for the appellant has not contested any of the findings of fact arrived at by the Election Tribunal and has confined his submissions to the question of the true construction of cl.
(g) of section 13 D of the Act.
Therefore, it is necessary to read that section, in so far as it is relevant for our purpose: " 13 D. Disqualifications for membership.
A person, not withstanding that he is otherwise qualified, shall be dis qualified for being chosen as, and for being, a member of a board if he (a) . . . . . . . . . . (b). . . . . . . . . . (c). . . . . . . . . . (d). . . . . . . . . . (e) . . . . . . . . . . (f). . . . . . . . . . 422 (g) is in arrears in the payment of municipal tax or other dues in excess of one year 's demand to which section 166 applies: Provided further that in the case of (g) the disqualifica tion shall cease as soon as the arrears are paid.
" The first contention of learned counsel for the appellant relates to and arises out of the expression " for being chosen as " occurring in the section.
The argument is this.
It is submitted that a person is "chosen as a member of a board " when the poll takes place and a majority of voters vote for him as their chosen candidate ; therefore, the relevant date for the operation of the disqualification is the date of the poll, and inasmuch as on October 10, 1953, which was several days before the date of the poll, the appellant was no longer in arrears of municipal tax in excess of one year 's demand by reason of the payment made on that date, the disqualification did not attach to him on the date of the poll.
We are unable to accept this argument.
It is worthy of note that an identical expression "shall be disqualified for being chosen as " occurs in article 102 of the Constitution and section 7 of the Representation of the People Act, 1951.
This expression occurring in section 7 of the Repre sentation of the People Act, 1951, was considered by this Court in Chatturbhuj Vithaldas Jasani vs Moreshwar Parashram and Others (1).
In that case the question was when the disqualification mentioned in cl.
(d) of section 7 of the Repre sentation of the People Act, 1951, arose and it was held that the date for putting in the nominations was one of the crucial dates.
On this point, the following observations made in that case are apposite : "Now the words of the section are "shall be disqualified for being chosen".
The choice is made by a series of steps starting with the nomination and ending with the announce ment of the election.
It follows that if a disqualification attaches to a candidate at any one of these stages, he cannot be chosen." (1) ; , 821. 423 It was pointed out in N. P. Ponnuswami vs The Returning Officer, Namakkal Constituency and Others (1) that ' elec tion ' is a continuous process consisting of several stages and embracing many steps of which nomination is one; nomina tion is the foundation of a candidate 's a right to go to the polls and must be treated as an integral part of the elec tion.
If a person is disqualified on the date of nomina tion, he cannot be chosen as a candidate because the dis qualification mentioned in section 13 D attaches to him on that date.
This is also clear from para.
22(2) of the U. P. Municipali ties (Conduct of Election of Members) Order, 1953.
That sub para.
states " 22 (2) The Returning Officer shall then examine the nomi nation papers and shall decide all objections, which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, refuse any nomination on any of the fol lowing grounds: (a) that the candidate is not qualified to be chosen to fill the seat under the Act; or (b) that the candidate is disqualified for being chosen to fill the seat under the Act; or (c)that there has been any failure to comply with any of the provisions of paras.
16 and 17; or (d) that the signature of the candidate or any proposer or seconder is not genuine or has been obtained by fraud.
" If the disqualification of cl.
(g) of section 13 D of the Act is to come into operation only oil the day of the poll, then it is quite unnecessary for the Returning Officer to consider that disqualification at the time of scrutiny ; and indeed it will be improper for him to refuse nomination on the ground of such disqualification.
Clause (b) of para.
22 (2) uses the same expression "disqualified for.
being chosen" showing clearly enough that the starting point of the act of choosing is not on the date of the poll only.
The process of choosing commences on the date of filing nominations.
(1) ; 424 We now turn to the second proviso to section 13 D.
The submis sion of learned counsel for the appellant is that, as stated in the proviso, the disqualification is transient and ceases to operate as soon as the arrears are paid; Oil October 10, 1953, the appellant was no longer disqualified and, there fore, he could be chosen on the date of the poll, that is, on October 26, 1953.
The argument is that in the case of such a transient disqualification, the second proviso must be so read as to mean that a disqualification subsisting on the day of nomination can be wiped off completely by subse quent payment of arrears of tax; otherwise a disqualifica tion at the time of nomination will disentitle a person to stand for election ; even though it ceases to operate before the day of the poll.
This argument also we cannot accept as correct; it is really the first argument in a different form.
The wiping off of the disqualification under the second proviso has no retrospective effect, and the disqual ification which subsisted on the day of filing nominations did not cease to subsist on that day by reason of a subse quent payment of the arrears of municipal tax.
On this point we accept as correct the view expressed in Ahmed Hossain vs Aswini Kumar(1), where a similar question under the Bengal Municipal Act (Ben.
XV of 1932), fell for con sideration.
The question was if a person disqualified on the date of nomination could shake off his pre existing disqualification by acquiring a new right between the date of nomination and the date of scrutiny.
What happened in that case was this : on the material date, that is, the last date for submission of nominations, a person was in arrears for more than three months in payment of the tax which he was liable to pay, and he came within the mischief of el.
(g) of amended a. 22(1) of the Bengal Municipal Act.
The contention was that the name of the Press of which the candidate was the proprietor and not his name was recorded in the books of the Municipality as the assessee and that the name of the candidate was in the electoral roll by reason of his educational qualifications.
This contention was repelled and it was (1) A.l.
R. 425 observed that if a person was disqualified on the date of the nomination, he could not shake off his preexisting disqualification by acquiring a new right between the date of nomination and the date of scrutiny.
There is also other judicial authority which ', supports the same view.
In Harford vs Linskey (1), a similar question arose for deci sion under the Municipal Corporations Act, 1882, section 12 whereof enacted that " a person shall be disqualified for being elected and for being a councillor " if and while he is interested in contracts with the Corporation.
The peti tioner in that case admitted that at the time of his nomina tion he was interested in contracts with the Corporation, but contended that he could and would have got rid of his disqualification before the day fixed for the poll, and was therefore not disqualified for nomination.
The question was whether he was so disqualified.
Wright J. delivering the judgment of the Court observed " In the absence of any guide, we think it safest to hold that in cases of elections under the Municipal Corporations Acts a person, who at the time of nomination is disquali fied for election in the manner in which this petitioner was disqualified, is disqualified also for nomination.
The nomination is for this purpose an essential part of the election, and if there are no competitors it of itself constitutes the election by virtue of the express words of section 56.
A different construction might produce much confu sion.
On the nomination day no one could know whether the persons nominated will at the poll be effective candidates or not.
It is true that in the case put the disqualifica tion may be removed before the election is completed ; but what is to be the effect if the disqualification continues until the poll begins, or until the middle of the polling day, or until the close of the poll ? Will votes given before the removal of the disqualification be valid? If not how is the number of them to be ascertained ? it seems to us unreason able to hold that the Act means to leave the matter in such a state of uncertainty, and for these reasons (1) , 858.
426 we think that this petitioner was disqualified for nomina tion or election.
" The same state of uncertainty and confusion, to which a reference has been made in the aforesaid observations, will arise if the construction which learned counsel for the appellant has pressed for our acceptance is adopted in the case before us.
Lastly, it has been argued on behalf of the appellant that the expression 'to which section 166 applies ' in cl.
(g) of section 13 D means that a bill of the sum due must be presented to the person liable for it, as required by that section, before he can come within the mischief of the clause; fur thermore, the use of the expression 'demand ' makes it essen tial that a demand notice must also be served as required by section 168 of the Act.
As on the finding of the Election Tribu nal neither a bill was presented to the appellant, nor was he served with a demand notice, learned counsel contends that the appellant does not come within the mischief of the clause.
Sections 166 and 168 are in these terms section 166.
Presentation of bill. (1) As soon as a person becomes liable for the payment of (a) any sum on account of a tax, other than an octroi or toll or any similar tax payable upon immediate demand, or (b) any sum payable under clause (c) of section 196 or section 229 or section 230 in respect of the supply of water, or payable in respect of any other municipal service or undertaking, or (c) any other sum declared by this Act or or by rule (or bye law) to be recoverable in the manner provided by this chapter, the board shall, with all convenient speed, cause a bill to be presented to the persons so liable.
(2) Unless otherwise provided by rule, a person ,shall be deemed to become liable for the payment of every tax and licence fee upon the commencement of the period in respect of which such tax or fee is payable," 427 " section 168.
Notice of demand.
If the sum for which a bill has been presented as aforesaid is not paid in municipal office, or to a person empowered by a regulation to receive such payments, within fifteen days from the presentation thereof, the board may cause to be served upon the person liable for the payment of the said sum a notice of demand in the form set forth in schedule IV, or to the like effect.
" We are clearly of the view that the expression 'to which section 166 applies ' cannot bear the meaning sought to be given to it on behalf of the appellant.
That expression merely describes the nature of the demand referred to in cl.
Section 166 refers to three types of dues; el.
(a) of sub section
(1) refers to any sum on account of a tax other than an octroi or toll or any similar tax payable upon immediate demand; cl.
(b) refers to sums payable under el.
(c) of section 196 or section 229 or section 230 in respect of the supply of water, etc., and cl.
(c) refers to any other sum declared by the Act or by rule or bye law to be recoverable in the manner provided by Chapter VI.
The demand to which section 166 applies must be a demand of the nature or type mentioned in one or other of the aforesaid three clauses, and the demand re ferred to in el.
(g) of section 13 D must be of that nature or type; this, in our view, is the true meaning and effect of the expression 'to which section 166 applies '.
Nor do we think that the word demand ' attracts the operation of section 168.
It may be readily conceded that the word 'de mand ' ordinarily means something more than what is due; it means something which has been demanded, called for or asked for.
But the meaning of a word must take colour from the context in which it is used.
In el.
(g) the context in which the word 'demand ' is used has a very obvious and clear reference to the amount of arrears or dues on which the disqualification depends; therefore, the expression used is 'arrears in the payment of municipal tax or other dues in excess of one year 's demand '.
The word 'demand ' in that context and in the collocation of words in which it has been used can only mean 'in excess of one year 's municipal tax or other dues '.
We have been referred to several meanings of the word 55 428 'demand ' in standard English dictionaries and law lexicons.
When the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of, according to lexicographers.
It is sufficient for our purpose to state that even in standard dictionaries and law lexicons, it is well recognised that the word demand ' may mean simply a 'claim or 'due ', without importing any further meaning of calling upon the person liable to pay the claim or due.
For the reasons given above, we hold that not one of the contentions urged on behalf of the appellant is worthy of acceptance.
The election petition was rightly decided, as the appellant was disqualified for being chosen as a member of the Municipal Board in question on the day he filed his nomination, under cl.
(g) of section 13 D of the Act.
According ly, the appeal is dismissed with costs in favour of respond ent 3 who alone contested the appeal before us.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was elected to the Municipal Board under the U. P. Municipalities Act, 19i6.
He was in arrears in the payment of Municipal tax in excess of one year 's demand, to which section 166 of the Act applied, at the time of the filing of nominations, but made the payment before the date of the poll.
Under section 13D, cl.
(g) of the Act "a person shall be disqualified for being chosen as, and for being, a member of a board if he is in arrears in the pay ment of Municipal tax or other dues in excess of one year 's demand to which section 166 applies, provided that the disquali fication shall cease as soon as the arrears are paid.
" On an election petition filed by a defeated candidate, the elec tion was set aside by the Election Tribunal on the ground that the appellant was not entitled to the benefit of the proviso to section I3 P. cl.
(g) of the Act.
It was contended for the appellant that the relevant date for the operation of the disqualification was the date of the poll and that, in any case, he did not come within the mischief of the disqualification clause in that section, as a bill for payment of the tax was not presented to him, nor a notice of demand served on him under section 168.
Held:(1) that if a person is disqualified on the date of nomination, he cannot be chosen as a candidate within the meaning of section 13 D of the U. P. Municipalities Act, 19i6, because the disqualification attaches to him on that date and the process of choosing consists of a series of steps starting with nomination and ending with the announcement of the election.
The wiping off of the 419 disqualification has no retrospective effect, and the dis qualification which subsisted on the date of the nomination cannot cease to subsist on that day by reason of a subse quent payment of the arrears of Municipal tax.
Chatturbhuj Withaldas jasani vs Moreshway Parashram and Others, ; , N. P. Ponnuswami vs The Returning Officer, Namakkal Constituency and Others, ; and Harford vs Linskey, , relied on.
Ahmed Hossain vs Aswini Kumar, A.I.R. 1953 Cal.
542, ap proved.
(2)that the expression "to which section 166 applies" in section 13 D, cl.
(g) of the Act merely describes the nature or type of dues mentioned in that section and that the effect is that the demand referred to in section 13 D, cl.
(g) must be of that nature or type.
(3)that the word 'demand" in section 13 D, cl.
(g) of the Act means "claim" or "due" and only refers to the amount of arrears or dues on which the disqualification depends and does not attract the operation of section 168.


judgement:
412 15 of 1984 (Under Article 32 of the Constitution of India. ) Soli J. Sorabji, J.B. Dadachanji, Ravinder Narain, T.N. Ansari, Joel Pares, section Sukumaran and Dr. Chandrachud for the Petitioners.
L.N. Sinha, Jai Narain, P.P. Singh, D. Goburdhan and Ms. section Relan for the Respondents.
The Judgment of the Court was delivered by BHAGWATI, CJ.
These petitions under Article 32 of the Constitution raise a short question of great constitutional importance relating to the power of the Governor under Article 213 of the Constitution to re promulgate ordinances from time to time without getting them replaced by Acts of the Legislature.
The question is, can the Governor go on re promulgating ordinances for an indefinite period of time and thus take over to himself the power of the Legislature to legislate though that power is conferred on him under Article 213 only for the purpose of enabling him to take immediate action at a time when the legislative assembly of the State is not in session or when in a case where there is a legislative council in the State, both Houses of Legisla ture are not in session.
The facts giving rise to these writ petitions are disturbing and we may briefly state them as follows: These writ petitions have been filed by four petitioners challenging the validity of the practice of the State of Bihar in promulgating 803 and re promulgating ordinances on a massive scale and in particular they have challenged the constitutional validity of three different ordinances issued by the Governor of Bihar, namely, (i) Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983; (ii) The Bihar Intermediate Education Council Third Ordinance, 1983; and (iii) The Bihar Bricks Supply (Control) Third Ordinance, 1983.
Petitioner No. 1 is a professor of economics is the Gokhale Institute of Politics and Economics, Pune and he has spent a number of years in studying the constitutional functioning of Indian politics.
He is deeply interested in the preservation and promotion of constitutional functioning of the administra tion in the country.
He has made a deep and profound study of the practice which is being followed in the State of Bihar of promulgating and re promulgating ordinances from time to time without enacting them into Acts of the Legisla ture.
Petitioner No. 2 is an occupancy Raiyat of village Anigara, Kunti Police Station in the district of Ranchi.
He grows forest produce in his Raiyat land.
Clause (5) of the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983 imposes restriction on the sale of specified forest produce and it further created State monopoly for sale and purchase of such forest produce.
Clause (7) of this ordi nance conferred power on the State Government to fix the price at which the specified forest produce may be purchased by it or by any authorised forest officer or agent from the growers of such forest produce.
The effect of these provi sions in the Bihar Forest Produce (Regulations of Trade) Third Ordinance was that petitioner No. 2 was prevented from selling his forest produce to any purchaser other than those mentioned in the ordinance and his right to dispose of the forest produce was adversely affected by these provisions and he was therefore interested in challenging the constitu tional validity of this ordinance.
Petitioner No. 3 is a student studying in Intermediate (Science) Class in A.N. College, Patna.
He was affected by the Bihar Intermedi ate Education Council Third Ordinance.
It is not necessary to refer to the provisions of this ordinance since it could not be seriously disputed on behalf of the respondents that the provisions of this ordinance affected, curtailed and/or regulated the rights of petitioner No. 3 or at least had the potential of doing so and petitioner No. 3 therefore chal lenged the constitutional validity of this ordinance.
Simi larly petitioner No. 4 was aggrieved by the Bihar Brick Supply (Control) Third Ordinance because he is the proprie tor of South Bihar Agency, Patna, a brick manufacturing concern operating under a licence issued by the Mining and the Industry Department of the Government of Bihar and the provisions of this ordinance empowering the State Government to control and regulate the manufacture, distribution, transport, disposal and consumption of 804 bricks, as also the price at which the bricks may be bought or sold affected petitioner No. 4 and he accordingly joined the writ petition and challenged the constitutional validity of this ordinance.
It was contended on behalf of the respondents that the petitioners had no locus standi to maintain this writ peti tion since out of the three ordinances challenged on behalf of the petitioners, two of them, namely, Bihar Forest Pro duce (Regulations of Trade) Third Ordinance, 1983 and the Bihar Bricks Supply (Control) Third Ordinance, 1983 had already lapsed and their provisions were enacted in Acts of the Legislature and so far as the third ordinance, namely, The Bihar Intermediate Education Council Third Ordinance was concerned, a legislative proposal was already introduced for enacting its provisions into an Act.
The respondents also contended that the petitioners are not entitled to challenge the practice prevalent in the State of Bihar of repromulgat ing ordinances from time to time since they were merely outsiders who had no legal interest to challenge the validi ty of this practice.
We do not think this preliminary objec tion raised on behalf of the respondents is well founded.
It is undoubtedly true that the provisions of two out of the three ordinances challenged in these writ petitions were enacted into Acts of the Legislature but that happened only during the pendency of these writ petitions and at the date when these writ petitions were filed, these two ordinances were very much in operation and affected the interest of petitioners Nos. 2 and 4 respectively.
Moreover, the third ordinance, namely.
The Bihar Intermediate Education Council Third Ordinance is still in operation though a bill incorpo rating the provisions of this ordinance is pending consider ation before the State Legislature and it has been referred to a Select Committee and the right of petitioner No. 3 to pursue a particular course of study is vitally affected by the provisions contained in that ordinance.
Besides peti tioner No. 1 is a Professor of Political Science and is deeply interested in ensuring proper implementation of the constitutional provisions.
He has sufficient interest to maintain a petition under Article 32 even as a member of the public because it is a right of every citizen to insist that he should be governed by laws made in accordance with the Constitution and not laws made by the executive in violation of the constitutional provisions.
Of course, if any particu lar ordinance was being challenged by petitioner No. 1 he may not have the locus standi to challenge it simply as a member of the public unless some legal right or interest of his is violated or threatened by such ordinance, but here what petitioner No. 1 has a member of the public is com plaining of is a practice which is being followed by the State of Bihar of re promulgating the ordinances 805 from time to time without their provisions being enacted into Acts of the Legislature.
It is clearly for vindication of public interest that petitioner No. 1 has filed these writ petitions and he must therefore be held to be entitled to maintain his writ petitions.
In S.P. Gupta & Ors.
vs Union of India & Ors.
, [1982] 2 SCR 365 one of us (Bhagwati, J. as he then was) observed: "Any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforce ment of such public duty and observance of such constitu tional or legal provision.
" The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the con stitutional limitations and if any practice is adopted by the Executive which is inflagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice.
We must therefore reject the preliminary conten tion raised on behalf of the respondents challenging the locus of the petitioners to maintain these writ petitions.
The respondents then contended that in any event the question raised before the Court in these writ petitions was academic in nature and should not be adjudicated upon by the Court.
But this contention urged on behalf of the respond ents is also without force since the Bihar Intermediate Education Council Third Ordinance is still in force and it cannot therefore be said to be academic to examine the challenge to its constitutional validity.
Moreover the question raised in these writ petitions is of highest con stitutional importance as it does the power of the Governor to re promulgate ordinances and it is in public interest that the Executive should know what are the limitations on the power of the Governor in the matter of re promulgation of ordinances.
If this question is not decided on merits, the correct position in regard to the constitutional limita tions on the power of the Governor to re promulgate ordi nances will remain undetermined.
We are of the view that this question has great public importance and it must be decided by us on merits in order to afford guidance to the Governor in the exercise of 806 his power to repromulgate ordinances from time to time.
We shall now proceed to state how the Governor in the State of Bihar has been indulging in the practice of repro mulgating the ordinances from time to time so as to keep them alive for an indefinite period of time.
Petitioner No. 1 carried out thorough and detailed research in the matter of repromulgation of ordinances by the Governor of Bihar from time to time and the result of this research was com piled by him and published in a book entitled "Repromulga tion of Ordinances: Fraud on the Constitution of India".
Some of the relevant extracts from this book have been annexed to the writ petition indicating the number of ordi nances repromulgated repeatedly by the Governor of Bihar.
It is clear on a perusal of these extracts that the Governor of Bihar promulgated 256 ordinances between 1967 and 1981 and all these ordinances were kept alive for periods ranging between one to 14 years by repromulgation from time to time.
Out of these 256 ordinances 69 were repromulgated several times and kept alive with the prior permission of the Presi dent of India.
The following table would indicate the cate gorisation of these 256 ordinances by reference to their life groups: Life Groups Number of (Years) Ordinances Upto 1 59 1 2 51 2 3 45 3 4 21 4 5 21 5 6 21 6 7 11 7 8 8 8 9 4 9 10 4 10 11 6 11 12 4 12 13 13 14 1 Total 256 The enormity of the situation would appear to be startling if we have a look at some of the ordinances which were allowed to continue in force 807 by the methodology of repromulgation.
The following table indicates in the case of each ordinance, the title of the ordinance, the date of first promulgation and the total period for which the ordinance was continued in force by adopting the stratagem of repromulgation: section Name of the Ordinance Date on which Life of the No. First Ordinance Promulgated 1 2 3 4 Year Months Days i.
The Bihar Sugarcane 13.11.1968 13 11 19 (Regulation of Supply and Purchase) Ordinance 1968 (Ordinance No. 3 of 1968) ii.
The Bihar Panchayati 14.8.1970 11 4 18 Raj (Amending and Validating) Ordinance 1970 (Ordinance No. 3 of 1970) iii.
The Bihar Hindu Religious 5.9.
1970 11 3 26 Trusts (Amendment) Ordinance, 1970 (Ordi nance No. 5 of 1970) iv.
The State Aid to 10.9.1970 11 3 21 Industries (Amendment) Ordinance, 1970 (Ordi nance No. 8 of 1970) vs The Bihar Bihar Khadi and 17.9.1970 11 3 14 Village Industries (Amendment) Ordinance, 1970 (Ordinance No. 9 of 1970) vi.
The Bihar Soil and Water 10.2.1971 10 10 19 Conservation and Land Development Ordinance, 1971 (Ordinance No. 16 of 1971) vii.
The Bihar Panchayati 15.5.1971 10 7 17 Raj (Amendment) Ordi nance, 1971 (Ordinance No. 54 of 1971) 808 viii.
The Bihar Municipal 20.5.1971 10 7 12 (Third Amendment) Ordinance, 1971 (Ordi nance No. 57 of 1971) ix.
The Patna Municipal 22.5.1971 10 7 10 Corporation (Amendment) Ordinance, 1971 (Ordinance No. 58 of 1971) x.
The Bihar State Housing 14.9.1971 10 3 17 Board Ordinance, 1971 (Ordinance No. 101 of 1971) xi.
The Bihar Co operative 7.10.1971 10 2 25 Societies (Second Amend ment) Ordinance, 1971 (Ordinance No. 103 of 1971) xii.
The Bihar Agricultural 14.12.1972 9 10 16 Produce Markets (Amend ment) Ordinance, 1972 (Ordinance No. 6 of 1972) xiii.
The Bihar Medical Educa 14.5.1972 9 7 18 tional Institutions (Regulation and Control) Ordinance, 1972 (Ordinance No. 69 of 1972) xiv.
The Rajendra Agricultural 15.1.1973 8 11 17 University (Amendment) Ordinance, 1973 (Ordinance No. 2 of 1973) xv.
The Bihar Panchayati 22.2.1973 8 10 7 Raj (Validating) Ordinance 1973 (Ordinance No. 5 of 1973) xvi.
The Bihar Panchayat 22.2.1973 8 10 7 Samitis and Zilla Parishads (Amending and Validating Ordinance, 1973 (Ordinance No. 6 of 1973) xvii.
The Bihar Khadi and 1.10.1973 8 3 0 Village Industries (Amendment) Ordinance, 1973 (Ordinance No. 122 of 1973) 809 xviii.
The Motor Vehicles 20.5.1971 7 8 17 (Bihar Amendment) Ordi nance, 1971 (Ordinance No. 56 of 1971) xix.
The Bihar State Aid to 27.4.1977 7 8 4 Industries (Second Amend ment) Ordinance, 1974 (Ordinance No. 56 of 1974) xx.
The Bihar Irrigation Laws 27.8.1974 7 4 3 (Amendment) Ordinance, 1974 (Ordinance No. 169 of 1974) xxi.
The Bihar Irrigation Field 29.8.1974 7 4 3 Channel (Amendment) Ordi nance 1974, (Ordinance No. 170 of 1974) xxii.
The Bihar Soil and Water 16.9.1974 7 3 15 Conservation and Land Development (Amendment) Ordinance, 1974 (Ordi nance No. 174 of 1974 ) xxiii.
The Bihar Gramdan 26.2.1972 6 5 27 (Amendment) Ordinance 1972 (Ordinance No. 12 of 1972) xxiv.
The Bihar Primary Edu 5.9.1970 6 3 26 cation (Amendment) Ordi nance, 1970 (Ordinance No. 6 of 1970) xxv.
The Bihar Regional Deve 19.9.1974 6 3 12 lopment Authority Ordi nance, 1974 (Ordinance No. 175 of 1974) xxvi.
The Chota Nagpur and 29.10.1974 6 2 3 Santhal Parganas Autono mous Development Autho rity (Fifth Amendment) Ordinance, 1975 (Ordi nance No. 197 of 1975) xxvii.
The Bihar Motor Vehicle 29.11.1975 6 1 2 Taxation (Fifth Amendment) Ordinance, 1975 (Ordi nance No. 207 of 1975) 810 xxxviii.
The Bihar Case (Amend 2.12.1975 6 1 0 ment) Ordinance, 1975 (Ordinance No. 209 of 1975) xxix.
The Bihar Public Land 5.12.1975 6 0 27 Encroachment (Amendment) Ordinance, 1975 (Ordi nance No. 210 of 1975) xxx.
The Bihar Motor Vehicles 5.12.1975 6 0 27 Taxation (Sixth Amend ment) Ordinance; 1975 (Ordinance No. 212 of 1975) xxxi.
The Bihar Motor Vehicles 5.12.1975 6 0 27 Taxation (Seventh Amend ment) Ordinance, 1975 (Ordinance No. 214 of 1975) It will thus be seen that the power to promulgate ordinances was used by the Government of Bihar on a large scale and after the session of the State Legislature was prorogued, the same ordinances which had ceased to operate were repro mulgated containing substantially the same provisions almost in a routine manner.
This would be clear from the fact that on 26th August, 1973 the Governor of Bihar repromulgated 54 ordinances with the same provisions and on 17th January, 1973, 49 ordinances were repromulgated by the Governor of Bihar containing substantially the same provisions and again on 27th April, 1974, 7 ordinances were repromulgated and on 29th April, 1974, 9 ordinances were repromulgated with substantially the same provisions.
Then again on 23rd July, 1974, 51 ordinances were repromulgated which included the self same ordinances which had been repromulgated on 27th and 29th April, 1974.
On 18th March, 1979, 52 ordinances were repromulgated while on 18th August, 1979, 51 ordinances were repromulgated containing substantially the same provi sions.
49 ordinances were repromulgated on 28th April, 1979 and on 18th August, 1979, 51 ordinances were repromulgated.
This exercise of making mass repromulgation of ordinances on the prorogation of the session of the State Legislature continued unabated and on 11th August, 1980, 49 ordinances were repromulgated while on 19th January 1981, the number of ordinances repromulgated was as high as 53.
The following table shows how many times the same Ordinance was rePromul gated in order to keep its provisions in force: 811 Name of Date of first Last date How many Total the Ordi promulgation of re pro times period nance mulgation re pro of the mulgated life of ordinance 1 2 3 4 5 1.
The Bihar 13.1.68 12.8.81 39 about 14 years Sugarcane (Regulation of supply and Purchase) Ordinance, 1968.
The Bihar 14.8.70 19.1.81 35 about 12 years Panchayat Raj (Amending and Validating) 1970.
The Bihar 5.9.70 22.4.81 37 about 12 years Hindu Reli gious Trusts (Amendment) Ordinance, 1970.
The Bihar 10.9.70 23.4.81 34 about 12 years State Aid to Industries (Amendment) 1970.
The Bihar 17.9.70 19.1.81 35 about 12 years Khadi and Village Industries (Amendment) 1970.
It may be pointed out that the three ordinances challenged in these writ petitions also suffered the same process of repromulgation from time to time.
The Bihar Forest Produce (Regulation of Trade) Third Ordinance was first promulgated in 1977 and after its expiry, it was repromulgated several times without it being converted into an Act of the State Legislature and it continued to be in force until it was 812 placed by Bihar Act No. 12 of 1984 on 17th May, 1984.
So far as the Bihar Intermediate Education Council Third Ordinance is concerned it was initially promulgated in 1982 and after its expiry, it was again repromulgated by the Governor of Bihar four times with the same provisions and it was ulti mately allowed to lapse on 6th June, 1985, but then the Bihar Intermediate Education Council Ordinance, 1985, was promulgated which contained almost the same provisions as those contained in the Bihar Intermediate Education Council Third Ordinance.
Similarly the Bihar Bricks Supply (Control) Third Ordinance was initially promulgated in 1979 and after its expiry it was repromulgated by the Governor of Bihar from time to time and continued to be in force until 17th May, 1984 when it was replaced by Bihar Act No. 13 of 1984.
Thus the Bihar Forest Produce (Regulations of Trade) Third Ordinance continued to be in force for a period of more than six years, the Bihar Intermediate Education Council Third Ordinance remained in force for a period of more than one year, while the Bihar Bricks Supply (Control) Third Ordi nance was continued in force for a period of more than five years.
The Government of Bihar, it seems, made it a settled practice to go on repromulgating the ordinances from time to time and this was done methodologically and with a sense of deliberateness.
Immediately at the conclusion of each ses sion of the State Legislature a circular letter used to be sent by the Special Secretary in the Department of Parlia mentary Affairs to all the Commissioners Secretaries, Spe cial Secretaries, Additional Secretaries and all heads of departments intimating to them that the session of the Legislature had been got prorogued ' and that under Article 213 Clause (2)(a) of the Constitution all the ordinances would cease to be in force after six weeks of the date of reassembly of the Legislature and that they should therefore get in touch with the Law Department and immediate action should be initiated to get "all the concerned ordinances repromulgated", so that all those ordinances are positively repromulgated before the date of their expiry.
This circular letter also used to advise the officers that if the old ordinances were repromulgated in their original form without any amendment, the approval of the Council of Ministers would not be necessary.
The petitioners placed before the Court a copy of one such circular letter dated 29th July, 1981 and it described the subject of the communication as "regarding repromulgation of ordinances".
It would be prof itable to reproduce this circular letter dated 29th July.
1981 as it indicates the routine manner in which the ordi nances were repromulgated by the Governor of Bihar: 813 "Letter No. P.A./Misc.
1040/80 872 GOVERNMENT OF BIHAR DEPARTMENT OF PARLIAMENTARY AFFAIRS From: Basant Kumar Dubey Special Secretary to the Govt.
To: All Commissioners and Secretaries, All Special Secre taries, All Additional Secretaries, All Heads of Departments Patna 15 dated 29th July, 1981 Subject: Regarding re promulgation of Ordinances.
Sir, I am directed to say that the budget Session of the Legislature (June July 1981) has been got prorogued after the completion of the business of both the houses on July 28, 1981.
Under the provisions of article 213(2)(a) of the Consti tution all the Ordinances cease to be in force after six weeks of the date of the reassembly of the Legislature.
This time the session of the Legislative Assembly has begun on June 29, 1981 and that of the Legislative Council on July 1, 1981.
Therefore from 1.7.
1981, six weeks, that is, 42 days would be completed on 1 1.8.1981 and if they are not repro mulgated before the aforesaid date, then all the Ordinances will cease to be in force after 11.8.1981.
It is, therefore, requested that the Law Department may be contacted and immediate action be initiated to get all the concerned Ordinances re promulgated so that they are definitely repromulgated before 11.8.1981.
If the old ordinances are repromulgated in their original form without any amendment, then the approval of the Council of Ministers is not necessary.
814 This should be given the top most priority and necessary action should be taken immediately.
Yours faithfully, Sd/ Basant Kumar Dubey Special Secretary to Bihar Government.
" This circular letter clearly shows beyond doubt that the repromulgation of the ordinances was done on a massive scale in a routine manner without even caring to get the ordi nances replaced by Acts of the Legislature or considering whether the circumstances existed which rendered it neces sary for the Governor to take immediate action by way of repromulgation of the ordinances.
The Government seemed to proceed on the basis that it was not necessary to introduce any legislation in the Legislature but that the law could be continued to be made by the Government by having the ordi nances repromulgated by the Governor from time to time.
The question is whether this practice followed by the Government of Bihar could be justified as representing legitimate exercise of power of promulgating ordinances conferred on the Governor under Article.
213 of the Constitution.
The determination of this question depends on the true interpretation of Article 213 which confers power on the Governor of a State to promulgate ordinances.
This Article in so far as material, reads as follows: "213.
(1) If at any time, except when the Legislative Assem bly of a State is in session, or where there is a Legisla tive Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
. . . . . . . . . . (2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordi nance (a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the 815 expiration of six weeks from the reassembly of the Legisla ture, or if before the expiration of that period a resolu tion disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council, and (b) may be withdrawn at any time by the Governor.
Explanation Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of these dates for the purposes of this clause . . . . . . . " The power conferred on the Governor to issue Ordinances is in the nature of an emergency power which is vested in the Governor for taking immediate action where such action may become necessary at a time when the Legislature is not in Session.
The primary law making authority under the Consti tution is the Legislature and not the Executive but it is possible that when the Legislature is not in Session circum stances may arise which render it necessary to take immedi ate action and in such a case in order that public interest may not suffer by reason of the inability of the Legislature to make law to deal with the emergent situation, the Gover nor is vested with the power to promulgate Ordinances.
But every Ordinance promulgated by the Governor must be placed before the Legislature and it would cease to operate at the expiration of six weeks from the reassembly of the Legisla ture or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any.
The object of this provision is that since the power conferred on the Governor to issue Ordinances is an emergent power exercisa ble when the Legislature is not in Session, an Ordinance promulgated by the Governor to deal with a situation which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life.
Since Article 174 enjoins that the Legislature shall meet at least twice in a year but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next Session and an Ordinance made by the Governor must cease to operate at the expiration of six weeks from the reassembly of the Legislature, it is obvious that the maximum life of an Ordinance cannot exceed seven and a half months unless it is replaced by an Act of the Legislature or disapproved by the 816 resolution of the Legislature before the expiry of that period.
The power to promulgate an Ordinance is essentially a power to be used to meet an extra ordinary situation and it cannot be allowed to be "perverted to serve political ends.
" It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time.
That is why it is provided that the Ordinance shall cease to operate on the expiration of six weeks from the date of assembling of the Legislature.
The Constitution makers expected that if the provisions of the Ordinance are to be continued in force, this time should be sufficient for the Legislature to pass the necessary Act.
But if within this time the Legislature does not pass such an Act, the Ordinance must come to an end.
The Executive cannot continue the provisions of the Ordinance in force without going to the Legislature.
The law making function is entrusted by the Constitution to the Legislature consisting of the representatives of the people and if the Executive were permitted to continue the provisions of an Ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the Legislature, it would be nothing short of usurpation by the Executive of the law making function of the Legislature.
The Executive cannot by taking resort to an emergency power exercisable by it only when the Legislature is not in Session, take over the law making function of the Legislature.
That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not the laws made by the Legislature as provided in the Constitution but by laws made by the Executive.
The Government cannot by pass the Legislature and without enact ing the provisions of the Ordinance into an Act of the Legislature, repromulgate the Ordinance as soon as the Legislature is prorogued.
Of course, there may be a situa tion where it may not be possible for the Government to introduce and push through in the Legislature a Bill con taining the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or the time at the disposal of the Legis lature in a particular Session may be short, and in that event, the Governor may legitimately find that it is neces sary to repromulgate the Ordinance.
Where such is the case, re promulgation of the Ordinance may not be open to attack.
But otherwise, it would be a colourable exercise of power on the part of the Executive to continue an Ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology of repro mulgation.
It is settled law that a constitutional authority can 817 not do indirectly what it is not permitted to do directly.
If there is a constitutional provision inhibiting the con stitutional authority from doing an Act, such provision cannot be allowed to be defeated by adoption of any subter fuge.
That would be clearly a fraud on the constitutional provision.
This is precisely what was pointed out by Muk harji, J. speaking for the Court in K.C. Gajapati Narayan Deo & Ors.
vs State of Orissa, ; "In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is.
clothed would not save it from condemnation.
The legislature cannot violate the constitu tional prohibitions by employing an indirect method." So also in P. Vajravelu Mudaliar vs Special Deputy Collec tor, Madras & Anr., ; a Constitution Bench of this Court observed that when it is said that Legislation is a colourable one, what it means is that the Legislature has transgressed its legislative power in a covert or indirect manner, if it adopts a device to outstep the limits of its power.
When the constitutional provision stipulates that an Ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the Legislature and the Government if it wishes the provisions of the Ordinance to be continued in force beyond the period of six weeks has to go before the Legislature_which is the constitutional au thority entrusted with the law making function, it would most certainly be a colourable exercise of power for the Government to ignore the Legislature and to repromulgate the Ordinance and thus to continue to regulate the life and liberty of the citizens through Ordinance made by the Execu tive.
Such a strategem would be repugnant to the constitu tional scheme as it would enable the Executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly arro gate to itself the law making function of the Legislature.
Shri Lal Narain Sinha, appearing on behalf of the State of Bihar urged that the Court is not entitled to examine wheth er the conditions precedent for the exercise of the power of the Governor under Article 213 existed or not, for the purpose of determining the validity of an Ordinance and in support of this proposition, he strongly relied upon the decisions reported in Bhagat Singh & Ors.
vs Empire, AIR 1931 PC 111, Rajararn Bahadur Kamlesh Narain Singh vs Com missioner of Income Tax, AIR 1943 PC 818 153; Laxmidhar Misra vs Rangalal & Ors., AIR 1950 PC 59 and R.C. Cooper vs Union of India, ; We do not see how these decisions could possibly help in the present case.
They do not at all deal with the question which we are called upon to decide here.
It is true that, according to the decisions of the Privy Council and this Court, the Court cannot examine the question of satisfaction of the Governor in issuing an Ordinance, but the question in the present case does not raise any controversy in regard to the satis faction of the Governor.
The only question is whether the Governor has power to repromulgate the same Ordinance suc cessively without bringing it before the Legislature.
That clearly the Governor cannot do.
He cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him.
It is significant to note that so far as the President of India is concerned, though he has the same power of issuing an Ordinance under Article 123 as the Governor has under Article 213, there is not a single instance in which the President has, since 1950 till today, repromulgated any Ordinance after its expiry.
The startling facts which we have narrated above clearly show that the Executive in Bihar has almost taken over the ' role of the Legislature in making laws, not for a limited period, but for years together in disregard of the constitu tional limitations.
This is clearly contrary to the consti tutional scheme and it must be held to be improper and invalid.
We hope and trust that such practice shall not be continued in the future and that whenever an Ordinance is made and the Government wishes to continue the provisions of the Ordinance in force after the assembling of the Legisla ture, a Bill will be brought before the Legislature for enacting those provisions into an Act.
There must not be Ordinance Raj in the country.
We must accordingly strike down the Bihar Intermediate Education Council Ordinance, 1983 which is still in opera tion as unconstitutional and void.
Petitioner No. 1 has done enormous research and brought this reprehensible practice of the Government of Bihar to the notice of the Court and we would therefore direct that the State of Bihar shall pay to Petitioner No. 1 a sum of Rs. 10,000 (rupees ten thousand only,) as and by way of cost of the writ petitions.
M.L.A. Petitions allowed.

summary/full:
The State of Bihar adopted a practice of repromulgating the ordinances on a massive scale from time to time without their provisions being enacted into acts of the legislature.
The practice was that, after the session of the State Legis lature was prorogued, the same ordinances which had ceased to operate were repromulgated containing substantially the same provisions almost in a routine manner.
The petitioners challenged the validity of this practice and in particular they challenged the constitutional validity of three differ ent ordinances issued by the Governor of Bihar, namely, (1) Bihar Forest Produce (Regulation of Trade) Third Ordinance 1983; (ii) The Bihar Intermediate Education Council Third Ordinance 1983; and (iii) The Bihar Bricks Supply (Control) Third Ordinance 1983, since these Ordinances also suffered the same process of repromulgation from time to time.
Petitioner No. 1, a Professor of Economics in Gokhale Institute of Politics and Economics, Pune carried out thor ough and detailed research in the matter of repromulgation of Ordinances by the Governor of Bihar from time to time and filed the present writ petition as he was interested in the preservation and promotion of constitutional functioning of the administration in the country.
Petitioner Nos. 2, 3 and 4 were affected by the provisions of the aforesaid Ordi nances mentioned at serial No. (i) (ii) and (iii) respec tively.
The provisions of two out of the aforesaid three Ordinances were enacted into acts of the legislature during the pendency of the writ petitions and the third Ordinance, namely, the Bihar Intermediate Education Council Third Ordinance, 1983 is still in operation though a bill incorpo rating the provision of this Ordinance is pending considera tion before the State Legislature and it has been referred to the Select Committee.
799 Counsel for the Respondent State opposed the writ petitions contending: (i) that the petitioners have no locus standi to maintain the writ petitions, since out of the three Ordinances, two of them had already lapsed and their provisions were enacted into Acts of the Legislature and so far as the third Ordinance, namely, the Bihar Intermediate Education Council Third Ordinance 1983 is concerned, a legislative proposal has already been introduced for enact ing its provisions into an Act; (ii) that the petitioners are not entitled to challenge the practice of repromulgating ordinances from time to time since they are mainly outsiders who have no legal interest to challenge the validity of this practice; (iii) that the question raised before the Court is academic in nature and should not be adjudicated upon by it; and (iv) that the Court is not entitled to examine whether the conditions precedent for the exercise of power of the Governor under article 213 existed or not for the purpose of determining the validity of an Ordinance.
Allowing the writ petitions, HELD: (1) The Bihar Intermediate Education Council Ordinance 1983 which is still in operation is struck down as unconstitutional and void.
The Governor cannot assume legis lative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurp ing a function which does not belong to him.
[818F G] In the instant case, the executive in Bihar has almost taken over the role of the Legislature in making laws not for a limited period but for years together in disregard of the constitutional limitations.
This is clearly contrary to the constitutional scheme and it must be held to be improper and invalid.
It is hoped and trusted that such practice shall not be continued in the future and that whenever an Ordinance is made and the Government wishes to continue the provisions of the Ordinance in force after the assembling of the Legislature, a Bill will be brought before the Legisla ture for enacting those provisions into an Act.
There must not be Ordinance Raj in the country.
[818D F] 2(1) The rule of law constitutes the core of the Con stitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have suffi cient interest to challenge such practice by filing a writ petition and it would be the constitutional duty 800 of the Supreme Court to entertain the writ petition and adjudicate upon the validity of such practice.
[805C E] 2(2) The Bihar Intermediate Education Council Third Ordinance 1983 is still in force and it cannot therefore be said to be academic to examine the challenge to its consti tutional validity.
Moreover, the question raised in these writ petitions is of highest constitutional importance as it does affect the power of the Governor to re promulgate Ordinances and it is in public interest that the Executive should know what are the limitations on the power of the Governor in the matter of re promulgation of ordinances.
If this question is not decided on merits, the correct position in regard to the constitutional limitations on the power of the Governor to re promulgate ordinances will remain unde termined.
[805F H] S.P. Gupta & Ors.
vs Union of India & Ors.
, [1982] 2 SCR 365, referred to.
3(1) The power conferred on the Governor to issue Ordi nances is in the nature of an emergency power which is vested in the Governor for taking immediate action where such action may become necessary at a time when the Legisla ture is not in session.
[815C D] 3(2) The primary law making authority under the Consti tution is the Legislature and not the Executive but it is possible that when the Legislature is not in session, cir cumstances may arise which render it necessary to take immediate action and in such a case in order that public interest may not suffer by reason of the inability of the Legislature to make law to deal with the emergent situation, the Governor is vested with the power to promulgate ordi nances.
But every ordinance promulgated by the Governor must be placed before the Legislature and it would cease to operate at the expiration of six weeks from the reassembly of the Legislature or if before the expiration of that period a resolution disapproving it is passed by the Legis lative Assembly and agreed to by the legislative Council, if any.
The object of this provision is that since the power conferred on the Governor to issue Ordinances is an emergent power exercisable when the Legislature is not in session, an Ordinance promulgated by the Governor to deal with situation which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life.
[815D G] 3(3) The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be 801 allowed to be "perverted to serve political ends".
It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emer gent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time.
That is why it is provided that the Ordinance shall cease to operate on the expiration of six weeks from the date of assembling of the Legislature.
The Constitution makers expected that if the provisions of the Ordinance are to be continued in force, six weeks time should be suffi cient for the Legislature to pass the necessary Act.
But if within this time the Legislature does not pass such an Act, the Ordinance must come to an end.
[816A C] 3(4) The Executive cannot by taking resort to an emer gency power exercisable by it only when the Legislature is not in session, take over the law making function of the Legislature.
That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the Executive.
The Government cannot by pass the Legislature and without enacting the provisions of the Ordinance in an Act of the Legislature, repromulgate the ordinance as soon as the Legislature is prorogued.
[816E F] 3(5) A constitutional authority cannot do indirectly what it is not permitted to do directly.
If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be al lowed to be defeated by adoption of any subterfuge.
That would be clearly a fraud on the constitutional provision.
[816H; 817A B] 4.
When the constitutional provision stipulates that an Ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the Legislature and the Government if it wishes the provisions of the Ordinance to be continued in force beyond the period of six weeks has to go before the Legislature which is the constitutional au thority entrusted with the law making function, it would most certainly be a colourable exercise of power for the Government to ignore the Legislature and to repromulgate the Ordinance and thus to continue to regulate the life and liberty of the citizens through Ordinance made by the Execu tive.
Such a stratagem would be repugnant to the constitu tional scheme, as it would enable the Executive to trans gress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indi 802 rectly arrogate to itself the law making function of the Legislation.
[ 817D G] 5.
The court cannot examine the question of satisfaction of the Governor in issuing an Ordinance, but the question in the present case does not raise any controversy in regard to the satisfaction of the Governor.
The only question is whether the Governor has power to repromulgate the same Ordinance successively without bringing it before the Legis lature.
That clearly the Governor cannot do.
[818B C] Bharat Singh vs Empire, AIR 1931 PC 111; Rajaram Bahadur Kamlesh Narain Singh vs Commissioner of Income Tax, ; Laxmidhar Misra vs Rangalal & Ors., AIR 1950 PC 59 and R.C. Cooper vs Union of India, ; , inap plicable.