Sahebrao Narayanrao Patil and Another vs State of Maharashtra and others

A.D. Mane , J.—The petitioners being the Members-Councillors of the Zilla Parishad, Parbhani, call in question the Constitutional validity of an Ordinance, called as ''Maharashtra Ordinance No. XI of 1993'' promulgated on 1-9-1993 amending sub-section (1) of section 49; sub-section (2) and sub-section (7) of section 72 and section 87 of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 (for short ''the Act'').

There are few facts which are not much in dispute and they are :

The State of Maharashtra has many Zilla Parishads and Panchayat Samitis constituted under the Maharashtra Zilla Parishads and Panchayat Samitis Act (Mah. Act V of 1961). Sometime in February, 1992, the general elections of all Zilla Parishads and Panchayat Samitis were held in the State of Maharashtra. The petitioner No. 1 was elected as the President by the elected Councillors of Zilla Parishad, Parbhani on 21-3-1992.

Petitioner No. 1 and petitioners Nos. 2 to 5 in another Writ Petition No. 3113/1993 were elected respectively on 21-3-1992 and 19-4-1992 as Vice-President and Chairman of the four different Subjects Committees respectively of Zilla Parishad, Parbhani.

The petitioner No. 1 was, however, removed from the office of the President, as in a special meeting held on 24-12-1992 no-confidence motion was passed against him by majority. The respondent No. 4 was, therefore, elected on 18-1-1993 as the President of Zilla Parishad, Parbhani.

Legislative Bill No. XXVIII of 1992 which was introduced in April, 1992 relating to the provisions with regard to the requisition to be signed for a fresh motion to be brought against the President or Vice-President or a fresh motion to be brought against the Chairman of Subjects Committee and for amending section 49(2) and (7) of the Act, was already passed in 1992 by the State Legislature and the same was pending in January, 1993 for the assent of the President of India.

Pending that assent, the Governor of Maharashtra promulgated Ordinance No. V of 1993 on 8-1-1993 for amending further section 49(1) to require that the majority required for passing no-confidence motion against the President and the Vice-President of the Zilla Parishad should be two third instead of a simple majority. L. A Bill No. 11/1993 was introduced regarding that Ordinance in the Budget Session of 1993. It could not be taken up for discussion in that Session or in the following Session of the Assembly, according to the State for want of time. On this background, in exercise of the powers conferred under Article 213(1) of the Constitution of India, the Governor of Maharashtra on 1-9-1993 promulgated the Maharashtra Ordinance No. XI of 1993 making it operative at once (hereinafter referred to as ''impugned Ordinance'').

by the impugned Ordinance, provisions contained in sub-section (1) of section 49, sub-sections (2) and (7) of section 72 and section 87 of the Act stand amended. The amendment so brought about in sub-section (1) of section 49 in respect of a motion of no-confidence against the President or the Vice-President or the Chairman of the Subjects Committee is required to be passed by the majority of not less than three fifths (instead of two thirds as required by Ordinance No. V of 1993), of the total number of councillors (other than associate Councillors), who are for the time being entitled to sit and vote at any meeting of the Zilla Parishad. Prior to the amendments made by both the Ordinances, a motion of no-confidence against the President, Vice-President or the Chairman of the Subjects Committee was required to be passed by a simple majority u/s 49(1) of the Act, as it then stood.

Since the passing of Maharashtra Act 6 of 1975, the majority required for passing no-confidence motion against the Chairman or the Deputy Chairman of a Panchayat Samiti was two third of the total number of Members (other than associate Members), who were for the time being entitled to sit and vote at any meeting of Panchayat Samiti. This was not changed by Ordinance Nos. V or XI of 1993.

The amendment brought about in sub-section 2 of section 72 of the Act by the impugned Ordinance is in respect of a requisition for a special meeting for the purposes of considering the motion of no-confidence against a Chairman or a Deputy Chairman of the Panchayat Samiti. It requires the requisition to be signed by not less than one third of the total number of Members (other than associate Members), who are for the time being entitled to sit and vote at any meeting of the Panchayat Samiti, in each case of no-confidence motion. Sub-section (7) of section 72, as amended by the impugned Ordinance, provides that if the motion of no confidence is not moved, or, as the case may be, is rejected, no fresh motion of no-confidence shall be brought before the Panchayat Samiti within a period of one year from the date of special meeting convened under sub-section (3). Prior to its amendment, this period was of six months from the date of rejection of motion. These amendments bring section 72(2) and (7) in line with section 49(2) and (7) as amended by Maharashtra Act I of 1993. This Act received the assent of the President on 4-2-1993 and was published in official gazette on 12-2-1993.

The amendment brought about in section 87 by the impugned Ordinance as well as Ordinance No. V of 1993 is in respect of the requisition for a special meeting for the purposes of considering the motion of no-confidence against a Chairman of Subjects Committee to the effect that it has to be signed by not less than one third of the total number of Councillors (other than associate Councillors) who are for the time being entitled to sit and vote at any meeting of the Zilla Parishad. Formerly, this was one fifths of the total number of Councillors.

On 17-9-1993, the present Writ Petition came to be filed in this Court challenging the validity of the impugned Ordinance and on 20-9-1993, this Court had granted interim relief in that matter directing the respondent-State and their Officers not to implement the impugned Ordinance.

It may be relevant here to state few more facts which gave rise to filing of another petition supporting the impugned Ordinance. On the requisition dated 6-9-1993 of the 38 Councillors of Zilla Parishad, Parbhani, the Collector, Parbhani, convened a special meeting on 21-9-1993 u/s 49(3) of the Act and a Deputy Collector was appointed to preside over the meeting. In that special meeting two of the Councillors gave their objections to the Collector inter alia stating that the proceedings of the special meeting for considering no-confidence motion were contrary to the provisions of sub-section (1) of section 49 of the Act, as amended by the impugned Ordinance and as it was not possible to decide whether or not the provisions of the impugned Ordinance would regulate the no-confidence motion or the provisions of the Act, as it stood prior to the amendment made by the impugned Ordinance, would govern the matter, the opinion of the Government should be sought on that point. The Collector overruled that objection because section 49(5) provides that the meeting called u/s 49 shall not, for any reason, be adjourned. Thereafter, the no-confidence motions were put to vote and all of the no-confidence motions were declared to have been carried by simple majority. Thus, the respondent No. 4 in this petition as well as the petitioners in Writ Petition No. 3113/93 came to be displaced.

As all the Offices of the Zilla Parishad in question have become vacant simultaneously, the Government, in exercise of its powers u/s 91B(a) of the Act authorised the Chief Executive Officer, Zilla Parishad to discharge all the powers and functions and to perform all duties of Zilla Parishad for the period from 22nd September, 1993, till the election of the President and the Chairman of Subjects Committee of Zilla Parishad, Parbhani.

The Collector, then issued a notice on 24-9-1993 for convening the meeting on 12-10-1993 for electing new office bearers of Zilla Parishad, Parbhani.

On 4-10-1993 another Writ Petition No. 3113/93, therefore, came to be filed for seeking a writ of mandamus or any other writ, direction or order in the like nature of this Court to quash the proceedings of meeting of Zilla Parishad held on 21-9-1993 and also notice issued by Collector on 24-9-1993. They further sought declaration that the vote of no confidence can only be passed against those petitioners by three fifth majority by virtue of the provisions contained in the impugned Ordinance and also prayed for interim relief for stay of further proceedings on the basis of the notice issued by the Collector dated 24-9-1993 and also for quashing the order passed by the Governor u/s 91B(a) issued on 14-10-1993.

The backdrop of the cases and the basic questions of law in these cases being same, these petitions have been heard one after the another. They are, however, disposed of by simultaneous judgment.

We may begin with the relevant averments in this petition in support of various contentions which are pressed in support of the grounds to invalidate the impugned Ordinance. At the outset it may be pointed out that the primary attack of the petitioners seems to be solely on the amendment brought about in sub-section (1) of section 49 of the Act under the impugned Ordinance.

The grounds, on which the petitioners challenged the validity of the Ordinance were first that the impugned Ordinance suffers from :

(a) non-application of mind;

(b) mala fides, ulterior motive, colourable exercise of power or fraud on Constitution;

(c) arbitrariness;

(d) violation of rule of Successive Ordinances as laid down in Dr. Wadhawa ''s case; and

(e) Exercise of Legislative powers beyond the scope of Article 213 of the Constitution of India.

The second main attack was that the impugned Ordinance was against the basic structure of the Constitution which postulates democratic Government and process, both in the matter of election as well as in the matter of removal of the elected office bearers. At the stage of the arguments, a short ground was sought to be pressed, viz., that when the Legislature had passed a Legislation giving to the people of Maharashtra State a Local Self-Government consisting of Zilla Parishads and Panchayat Samitis with the object of decentralization of Governmental functions of the State and for the purpose of promoting the development of democratic institutions and securing greater measure of participation by the people in Local and Governmental affairs, it was not open to the Governor to make amendments to the Act, which were contrary to the object and the scheme of the Act.

As said above, the main attack of the petitioners was on the amendment to section 49(1) of the Act. The petitioners have averred in their petition that even though two Sessions of the State Legislative Assembly had passed after the promulgation of Maharashtra Ordinance No. V of 1993 on 8-1-1993 and though a L. A Bill No. II of 1993 was introduced in the Legislative Assembly in the Budget Session of the year 1993, the same was not pressed for by the Governor for passage either in the Budget Session or in the Session following thereafter. This, according to the petitioners, was done because there was opposition and the said Bill was likely to be defeated. It was then contended that with a view to protect the office bearers of the Zilla Parishad who were related to the Council of Ministers the impugned Ordinance was promulgated on 1-9-1993. It was also contended in this context that the Ordinance promulgated by the Governor had a limited life in view of the provisions contained in Article 213(1) of the Constitution of India. Ordinance No. V of 1993 had already lapsed and on that background, the Ordinance was promulgated on 1-9-1993 containing more or less provisions similar to those contained in Maharashtra Ordinance No. V of 1993.

According to the petitioners, the promulgation of the impugned Ordinance was, therefore, colourable exercise of power and it amounted to fraud on the Constitution as indicated in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, .

It was next submitted that the power of the Governor is subject to the condition that circumstances must exist which rendered it necessary for Governor to take immediate action of promulagation of Ordinance. It was submitted that though the satisfaction of the Governor was subjective the facts leading him to that conclusion were not in existence. Therefore, the exercise of the power by the Governor was in excess of his powers under Article 213 of the Constitution of India.

Referring to the provisions contained in section 49(1) of the Act, as amended by the Ordinance, an emphasis has been laid on the preamble of the Constitution, scheme of the Constitution and the scheme of the Maharashtra Zilla Parishads and Panchayat Samitis Act. In this context, reference was also made in the petition to the method of removal of Constitutional functionaries like, Speaker, Deputy Speaker of the Parliament, Deputy Chairman of Rajya Sabha, Prime Minister, Chief Minister, Speaker of the State Legislature and Deputy Chairman of the Legislative Council. It was submitted that all these Constitutional functionaries could be removed under various provisions by a simple majority. It was, therefore, submitted that the President and the other elected office bearers of Zilla Parishads do not stand on any different pedestal than the aforesaid Constitutional functionaries and there was no reason for the Governor to make them stand on a pedestal different than the pedestal on which the elected Constitutional functionaries stand. Thus it has been submitted that a classification is not based on any intellectual differentia distinguishing those that are grouped together from the others left out of the group. It has also been submitted that such differentia docs not have any rational relationship with the objects sought to be achieved by the Legislation.

Reference was also made to provisions contained in Maharashtra Municipalities Act, 1960, Village Panchayats Act, Maharashtra Agricultural Produce Marketing Committees Act and Maharashtra Co-operative Societies Act, in which the provisions were made for removal of the elected office bearers by two third majority.

With these averments, the petitioners filed the writ petition challenging the validity of the impugned Ordinance and seeking the reliefs as stated at the outset.

On behalf of the respondent-State, return has been filed on 25-10-1993 and additional affidavit in reply has been filed on 29-10-1993. The respondent No. 4 also filed his separate return on 25-10-1993. The common contentions of all these respondents arc to the effect that the promulgation of the Ordinances was perfectly within the legislative competence of the Governor of Maharashtra and that they were properly issued after considering the facts relevant for the subject. It has been pointed that no-confidence motion shall be passed by the Members not less than two-thirds of the total number of Councillors, whereas in the impugned Ordinance, this requirement was reduced to not less than three-fifth of the total number of Councillors. It has been submitted that this was the material difference between the two Ordinances.

The repondents have denied that there was any colourable exercise of powers on the part of the executive; that the impugned Ordinance was issued after the period of limitation prescribed under Article 213 of the Constitution of India; that there was any political aim as suggested; that the introduction of the provision of no-confidence was, in no way, invalid or ultra vires and/or that the same was contrary to the scheme of the Act or to the scheme of Constitution of India or it affects the right of majority of Members of Zilla Parishad in any way. It has been denied that the impugned Ordinance was either undemocratic or violative of the Constitutional guarantees contained in Article 14 of the Constitution of India or the accepted principles of the democratic process. It has been denied that the impugned Ordinance was beyond the legislative competence of the Governor under Article 213 of the Constitution of India. The respondent-State has denied the alleged relationship between the office bearers of Zilla Parishads in Maharashtra with the Council of Ministers and it has been submitted that the allegations are vague and shall not be accepted. It has been submitted by the respondents that the promulgation of Ordinance was a legislative process which could not be questioned by the Petitioners in the Court nor could they question the necessity or existence of circumstances requiring issuance of the Ordinance. Any political aim in promulgation of the Ordinance was denied as also the alleged fraud on Constitution. The respondent also denied that the Ordinance suffers from vice of arbitrariness or violation of Article 14 of the Constitution of India. It has also been denied that there was any colourable exercise of powers. Maintaining that there was a reasonable classification based on intelligible differentia for the purpose to be achieved under the impugned Ordinance, the respondents stressed the circumstances appearing in the statement of object appended to the Ordinances and submitted that the statement of object appended to the Ordinances clearly shows that the Governor was perfectly within his competence to promulgate the Ordinance. In this context, it has been submitted that the respondent-State Government had come across several instances, after the general elections of Zilla Parishads in February 1992, and had noted that within a period of one year only, instances of no-confidence motions had taken place in Gadchiroli, Sangli, Amravati, Jalna and Parbhani districts. It was that frequency of motions that had disturbed the smooth functioning of several Zilla Parishads and Panchayat Samitis and, therefore, with a view to checking such frequency of motions and to bring stability to the administration of Zilla Parishads and Panchayat Samitis, the impugned Ordinance was issued by the Governor in exercise of his Constitutional powers. The respondent No. 1-State has also pressed into service the important role that the President has to play in the matters of administration of Zilla Parishads, the wide extent of his powers and cumbersome duties cast on him. It has been submitted that the President and in his absence, the Vice-President and in absence of both, the Chairman of Subjects Committee has to exercise those powers. It has, therefore, been submitted that the amendment made by the impugned Ordinance was perfectly valid and that the challenge set up by the petitioners was misconceived in law.

In addition to the aforesaid pleas, the respondent No. 4 had taken some additional pleas in his affidavit, namely, that the petition filed by the petitioners did not make out any substantial ground whatsoever on the basis of which, issuance of Ordinance by the Governor could be challenged on the ground such as non-application of mind, mala fide, colourable exercise of powers, offending the rule of successive Ordinances, etc. Adequate facts were not pleaded to substantiate such contentions and mere vague allegations could not enable the Court to entertain the petition on these grounds. It has also been submitted that though the petitioners have challenged issuance of the Ordinance on the ground of violation of democratic process, they have not specified what they mean by the word ''democratic process''. It has been contended that the respondent No. 4, as a private citizen, found it extremely difficult to reply the petition for want of adequate particulars. It has been submitted that no substantial damage was done to the democratic principles by the impugned Ordinance.

The respondent No. 4 has also submitted that the petitioners did not have any vested right as such except the statutory right in their favour and the existence of such statutory right would not entitle them to challenge the validity or legality of the Ordinance. It was submitted that these were the subject matters of Statute and the Legislature had ample powers to amend the Statute so as to reasonably modify, curtail or abridge the rights created by the Statute. The illustration given in the petition to show that the democratic principles were offended was not correct factually and it, by itself, showed that there was no substance in the attack levelled against the Ordinance by the petitioners. It has been maintained that the analogous Acts contained similar provisions and that, therefore, the prescription of a particular quantum of majority would not amount to violation of democratic principles. Finally, it has been submitted that this Court could not adjudicate upon the matters pertaining to the promulgation of the Ordinance and modification made by it in the Act because it was perfectly within the competence of Legislature to do so. A special contention was raised that the averments regarding malice or mala fide were vague and unsupported by facts. Emphasis is also laid on a fact that the provisions in the Ordinance were made for protecting the misuse of powers given to the Members to pass a no-confidence motion and to save administration of Zilla Parishad of uncertainty.

Before we go to the contentions raised on behalf of the petitioners, it may be mentioned that SLP (C) 16015/93 was filed by respondent No. 4 in the Supreme Court against the interim order passed on 209-1993 and the Supreme Court viewed that this Court, in all events, should decide both these petitions on the date fixed. Therefore, a special Bench has been constituted on 26-10-1993 and since then, the petitions were heard day to day one after the another.

Shri Bobde, the learned Senior Counsel appearing for the petitioners, has canvassed before us various contentions and his contentions can be grouped under two heads. The first head of his argument is on the ground of propriety, exigency and necessity of promulgating the impugned Ordinance. The second head of his argument is on the ground of lack of Legislative powers of the Governor in promulgating the impugned Ordinance because it violates not only Article 14 of the Constitution but also violates democratic process in the matter of election and removal. That is contrary to the basic structure of Constitution as also the basic structure and the scheme of the Act itself, as ascertained from the preamble and the provisions of the Act.

Turning to the first head of the arguments, Shri Bobde, learned Senior Counsel for the petitioners in the first place, submitted that the power to issue Ordinance under Article 213 of the Constitution of India is subject to the pre-condition that circumstances must exist which render it necessary for the Governor to take immediate action. The power to issue Ordinance is conferred upon the Governor in order to enable him to act in unusual and exceptional circumstances. Therefore, the learned Counsel further submitted that unusual and exceptional circumstances must be shown to exist, they must be relevant on the question of necessity to issue an Ordinance and they must be such as to satisfy the formation of subjective satisfaction, by reason thereof, it was necessary to take immediate action and issue an Ordinance. The Legislative power to issue an Ordinance being conditional, the question as regards existence of circumstances which compel the issuance of Ordinance is justiciable and it is open to this Court to determine whether the power was exercised on the basis of relevant circumstances which establish the necessity to take immediate action or whether it was exercised for collateral purposes. The learned Counsel contended that in the instant case there exist no such circumstances to exercise the powers by the Governor under Article 213 of the Constitution of India.

In support of the aforesaid submission, the learned Counsel made it clear that it is not his contention that any Ordinance per se is bad, but according to him, there are circumstances to show that earlier Ordinance No. V of 1993 was bad. The subsequent i.e. impugned Ordinance is equally bad as it falls in the category of abuse of power or fraud on Constitution. The Circumstances upon which reliance is placed by the learned Counsel are these :

(i) The amendment to sub-section (1) of section 49 of the Act was not at all in view when earlier Ordinance No. V of 1993 was promulgated because the same was not included in the concluding part of the statement of object of the said Ordinance, as was done in the case of introduction of amendment to other two sections;

(ii) Ordinance No. V of 1993 was not converted into law even though two Assembly Sessions were available for the State. In absence of an affidavit filed by the concerned persons from Legislative Assembly, it cannot be presumed that for want of time the State Ordinance was not converted into law;

(iii) Intrinsic evidence as furnished by statement of objects appended to Ordinance V of 1993 shows no existence of such circumstances on the basis of which subjective satisfaction could have been reached by the Governor, such non-existence of circumstances not only vitiates subjective satisfaction but makes the impugned Ordinance unenforceable on the basis of law laid down in the case of The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, and Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, ;

(iv) In absence of averments in the return filed by the Respondent/State as to what happened to the Bills except Bill No. 11/93 and the subsequent Bills introduced in the Legislative Assembly, necessary inference can be drawn that there existed no such emergency or necessity for promulgation of the impugned Ordinance,

(v) If at all there was any emergency at the time of promulgation of Ordinance No. V of 1993, the same ceased to exist, according to the Government''s theory set up in this case so long as the Legislative Assembly was in Session, but the same emergency revived as soon as both the Sessions were over so as to enable the Governor to promulgate Ordinance No. XI of 1993. This is contrary to the Law laid down in Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, ;

(vi) In Ordinance No. V of 1993. a provision was made requiring two third of majority for passing of no-confidence motion, but in the impugned Ordinance that was reduced to three fifth of the majority. Such a quick change within a period of nine months in a year was a result of non-application of mind, colourable exercise of power, fraud on Constitution, etc. as well as the absence of emergency at both points of time i.e. promulgation of Ordinances Nos. V and XI of 1993, respectively;

It is, therefore, urged by the learned Counsel that the impugned Ordinance is violative of the Constitutional limitations imposed on the powers of the Governor and the same is unenforceable.

In the second head of the argument, Mr. Bobde explained the meaning of the word ''democracy'' as appearing in the preamble of the Constitution of India and the word ''democratic process'' embodied in the Constitution with reference to the rulings, in His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, and Aluminium Corporation of India Ltd. Vs. Union of India (UOI) and Others, and other decided cases. Then he explained how the principles laid down by the aforesaid rulings could apply in the matter of election and removal of the elected representatives. According to him, the preamble of the Constitution of India is a part of the Constitution and it contains Legislative limitations, as much as it indicates the rights of the people. He submitted that violation of the Legislative limitations indicated by the Constitution and particularly the use of word ''democratic republic'' in the preamble of the Constitution could be sufficient for the Court to strike down a legislation on the ground of Legislative incompetence of the Parliament or the State Legislature, as the case may be.

To put the controversy briefly, his arguments were that the Ordinance lacks Legislative competence because :

(a) It is against the basic structure of the Constitution as envisaged by the expression ''democratic republic'';

(b) the democratic process for election and removal of elected representatives is a part of the basic structure of the Constitution; and

(c) simple majority is required for removal of the elected functionary by a no- confidence motion and anything more than simple majority is a negation of democratic process of free and fair elections.

In the context of meaning of the expression ''democracy'', the learned Counsel invited our attention on Constitutional Law in India, IIIrd Edition, Page 142, Para 4.12 by Seerwai. The learned author has focused on the two facets of democracy, viz., Rule of public by majority and possibility of peaceful change from one set of people to another set of people i.e. election. Extending his arguments to the basic democratic structure of Zilla Parishads and Panchayat Samitis as envisaged by the Act, the learned Counsel submitted that when the very object of enactment of the Act as pronounced by the Legislature in the long title to the Legislation and the preamble to the Act was, "to provide for the decentralization of powers and functions under certain enactment to the Local Bodies for the purpose of promoting the development of the democratic institutions and securing a greater measure of participation by people in the said plans and in the Governmental affairs, which according to him, was a declaration of the will of the people through its elected representatives on the floor of the State Legislature, it would not be open for the Governor to derogate from that proclaimed will of the people and to do away with the basic democratic structure of the institutions created under the Act or the democratic process with which the said institutions were expected to work. Therefore, it was submitted that especially the Governor by himself had no power to legislate contrary to the will of the people as proclaimed by the elected representatives of the people on the floors of the State Legislature and to prescribe a majority higher than the simple majority for removing the elected office bearers of the Bodies through devise of passing of no-confidence motion.

For considering the first head of the arguments, we may set out with advantage the provisions contained in Article 213 of the Constitution of India, which reads thus :

"213. Power of Governor to promulgate Ordinances during recess of Legislature - (1) If at any time, except when the Legislative Assembly of a State is in Session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in Session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require :

Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if �

(a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or

(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or

(c) an Act of the Legislature of the State containing the same provisions would under this constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance �

(a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and

(b) may be withdrawn at any time by the Governor.

Explanation �Where the Houses of the Legislature of a State having a Legislative Council arc summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void :

Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.".

Following arc the conditions for exercise of power under Article 213 :

(a) The Governor shall have this power only when both Houses of the State Legislature are not in Session;

(b) It is not a discretionary power, but must be exercised with the aid and advice of ministers;

(c) The Ordinance must be laid before the Legislature when it reassembles, and shall automatically cease to have effect at the expiration of six weeks from the date of reassembly, unless disapproved earlier by that Legislature.

In addition to these three requirements, Mr. Bobde wants to contend that the power to issue an Ordinance under Article 213 of the Constitution is subject to the precondition that circumstances must exist, which render it necessary for the Governor to take immediate action. He submitted that the power to issue an Ordinance is conferred upon the Governor in order to enable him to act in unusual and exceptional circumstances. Therefore, the existence of such unusual and exceptional circumstances must be shown because their existence is relative on the question of necessity to issue an Ordinance and their capability to satisfy a reasonable percentage that, by reason thereof, it was necessary to take immediate action and issue an Ordinance. It was argued that Legislative power to issue an Ordinance being conditional, the question as regards the existence of circumstances which compel issuance of Ordinance is justiciable and it is open to this Court to determine whether the power was exercised on the basis of relevant circumstances which establish the necessity to take immediate action or whether it was exercised for a collateral purposes. Such a point was argued in A.K. Roy and Others Vs. Union of India (UOI) and Others, , but was left undecided. Shri Bobde, therefore, relied upon the ruling in The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, . In that case, the challenge was to an order issued by the Secretary to the Company Law Board on behalf of the Board u/s 237(B) of the Companies Act, 1956, appointing thereby four persons as Inspectors for investigating the affairs of Barium Chemicals Limited and to report to Company Law Board, inter alia, of the irregularities and the contraventions in respect of the provisions of the Companies Act, 1956 or any other Law for the time being in force and the person or persons responsible for such irregularities and contraventions. When this order came to be challenged, it was submitted that Section 237 conferred upon the Board a discretion to appoint the Inspector for conducting investigation. Shelat, J. of the Supreme Court, considered the provisions of section 237 and held that clause (b) of section 237 of the Companies Act confers a discretion on the Board to appoint Inspector to investigate into the affairs of the Company but the formation of the opinion must be as to whether there are circumstances suggesting the existence of one or more of the matters in sub-clauses (i) and (ii) and not about anything else, it was held that only after the formation of certain opinion by the Board that the stage of exercising the discretion conferred by the provision is reached. It has been observed that the formation of opinion is subjective process but existence of circumstances suggesting inference of what has been set out in sub-clauses (i), (ii) or (iii) must be made out. To that extent only the judicial review was held permissible.

According to Mr. Dada, the learned Senior Counsel for the State, the aforesaid ruling has no application to the facts of the present case, because, in the first place, the decision in that case was in respect of an Executive order and not a Legislation. His second submission was that the power of the Governor to issue Ordinance was co-extensive with that of the State Legislature and covers any matter which is included in the State List.

According to him, satisfaction of the Governor as regards the existence of circumstances rendering it necessary for him to take immediate action is final and conclusive and shall not be questioned on any of the grounds such as, exigency, necessity, non-application of mind, propriety or motive. In support of his proposition, he relied upon several cases.

It is impossible to accept the submission of the learned Counsel Shri Bobde for the petitioners that the Ordinance can be invalidated on any of the grounds urged by him. The power to issue an Ordinance is not an Executive power but is the power of Executive to legislate. The power of the Governor to promulgate the Ordinance is contained in Article 213 of the Constitution of India, to which we have made a reference earlier.

In the case of K. Nagraj vs. State of Andhra Pradesh, AIR 1985 SC 565, extent of the Governor''s power is indicated in the following terms :

"This power is plenary within its field like the power of the State Legislature to pass laws and there are no limitations upon that power except those to which the legislative power of the State Legislature is subject."

In S.K.G. Sugar Ltd. Vs. State of Bihar and Others, , the Supreme Court observed:

"There is no dispute with regard to the satisfaction of the first condition. Existence of condition (b) only is questioned. It is however well settled that the necessity of immediate action and of promulgating an Ordinance is a matter purely for the subjective satisfaction of the Governor. He is the sole Judge as to the existence of the circumstances necessitating the making of an Ordinance. His satisfaction is not a justiciable matter. It cannot be questioned on ground of error of judgment or otherwise in court."

In K. Nagraj''s case cited supra, it is further observed that:

"........Though an Ordinance can be invalidated for contravention of the constitutional limitations which exist upon the power of the State Legislature to pass laws, it cannot be declared invalid for the reason of non-application of mind, any more than any other law can be. An executive act is liable to be struck down on the ground of non-application of mind. Not the act of a Legislature."

In subsequent decision in case of T. Venkata Reddy and Others Vs. State of Andhra Pradesh, , the above proposition is reaffirmed and stated that:

"The legislative action under our Constitution is subject only to the limitations prescribed by the Constitution and to no other. Any law made by the Legislature, which it is not competent to pass, which is violative of the provisions of Part III of the Constitution or any other Constitutional provision is ineffective. It is a settled rule of Constitutional law that the question whether a statute is Constitutional or not is always a question of power of the legislature concerned. Dependent upon the subject matter of the statute, the manner in which it is accomplished and the mode of enacting it. While the courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the Legislative discretion is properly exercised. The motives of the Legislature in passing a statute is beyond the scrutiny of Courts. Nor can the Courts examine whether the Legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a Legislative act are for the determination of the Legislative authority and are not for determination by the Courts. An Ordinance passed either under Article 123 or under Article 213 of the Constitution stands on the same footing. When the Constitution says that the Ordinance making power is Legislative power and an Ordinance shall have the same force as an Act, an Ordinance should be clothed with all the attributes of an Act of Legislature carrying with it all its incidents, immunities and limitations under the Constitution. It cannot be treated as an executive action or an administrative decision."

In Shri Raghunathrao Ganpatrao Vs. Union of India, , the Supreme Court observed in paras 103 and 104 of report:

"The above passages remind us of the distinction between law and morality and the line of demarcation which separate morals from legislation. The sum and substance of it is that a moral obligation cannot be converted into a legal obligation. In the light of the above principle, the Attorney General is right in saying that Courts are seldom concerned with the morality which is the concern of the law makers."

Mohan, J. quoted in Para 188 (of the report cited supra) an extract from Machael J. Perry in ''Morality Politics and Law'' (1988 Edn. Page 129) as under :

"According to the view of democracy that underlines originalism, it is illegitimate for the judiciary to go beyond the enforcement of policy choices to the making of policy choices - at least, it is illegitimate unless the judiciary is authorised to do so by the Legislative and Executive branches. And it is illegitimate in extremis for the undemocratic branches and agencies of Government on the basis of beliefs never constitutionalized by the ratifies."

Approving the aforesaid passage, the Supreme Court concluded :

"Therefore, this Court cannot concern itself with the moral aspect of the impugned amendment. The impugned amendment is the Will of the people expressed through Parliament."

Kerala High Court also emphasized upon this point and said that the question in the case of promulgation of Ordinance by Governor is only of competency and not of motive much less of expediency or even of propriety. The unjusticiability of the promulgation of Ordinance by the Governor on such points was also upheld by the Kerala High Court in V.E. Vasudevan and Others Vs. State of Kerala and Others, .

If this be the correct legal position about the justiciability of the issue in regard to the Ordinance, it is not possible for us to accept the submission of the learned Senior Counsel Shri Bobde for the petitioners that all such questions in respect of motive, propriety, expediency and necessity can be gone into by us. Indeed, Mr. Rafiq Dada pointed out to us that in T. Venkata Reddy and Others Vs. State of Andhra Pradesh, , where an Ordinance promulgated by the Governor was not subsequently approved by the State Legislature, the effect was not that the Ordinance was void ab initio. The Supreme Court observed (in para 19 of the report):

"It is seen that Article 213 of the Constitution does not say that the Ordinance shall be void from the commencement on the State Legislature disapproving it. It says that it should be treated as being effective till it ceases to operate on the happening of the events mentioned in clause (2) of Article 213."

It is, therefore, clear that it is not open for the petitioners to challenge the impugned Ordinance on any of such grounds as, non-application of mind, mala fides, non-existence of circumstances regarding emergency situation, etc.

May it be that it is not open to this Court to go into the questions of existence of circumstances requiring the promulgation of impugned Ordinance and to question the subjective satisfaction of the Governor on the ground of non-existence of circumstances, but Mr. Rafiq Dada the learned Senior Counsel appearing on behalf of the State, submitted that for the satisfaction of the Court on that point also he would demonstrate how the Ordinance in question was in fact felt necessary. He invited our attention to the text of statement of objects appended to the impugned Ordinance and read the relevant portion as follows :

"(i) In recent times the frequency of bringing such no-confidence motion is on the increase which disturbs the smooth working of the Zilla Parishads, Panchayat Samitis and the Subjects Committees. With a view to check the number of such motions, it is considered expedient to provide that the motion of no confidence against the President or Vice-President or a Chairman of Subjects Committee should be required to be passed by a majority of not less than three-fifths of the total number of Councillors.

(ii) By L.A. Bill No. II of 1993 which sought to replace the Maharashtra Zilla Parishads and Panchayat Samitis (Amendment) Ordinance, 1993 (Maharashtra Ordinance V of 1993), these amendments were sought to be made in the Act. This Bill was introduced on 16th March, 1993 in the Budget Session of the State Legislature. It could not however be passed before the Session was prorogued on 28th April, 1993. In the Monsoon Session which thereafter commenced on 12th July, 1993 and prorogued on 30th July, 1993 the Bill could not also be passed for want of time. In the meantime the Ordinance V of 1993 has had already lapsed. In the said Bill the amendments to section 49 provided that the motion of no-confidence against the President or Vice-President or Chairman of a Subjects Committee was required to be passed by a majority of not less than two-thirds of the Councillors. Whereas the amendment now proposed to section 49 provides that such a motion would be required to be passed by a majority of not less than three-fifths of the total number of councillors."

In the return filed on 22-10-1993 on behalf of the Respondent-State, it has been clearly stated that:

"The Government has come across and noticed that after the general elections of the Zilla Parishad i.e. from February, 1992, within a period of one year only, instances of no-confidence motion have taken place at Gadchiroli, Chandrapur, Parbhani, Jalna and Amravati districts. From the above instances, it is quite clear that the frequency of bringing no-confidence moton is on the increase which is disturbing the smooth functioning of the Zilla Parishad and Panchayat Samiti and as such, with a view to check such frequency of motion and to bring stability to the administration of the Zilla Parishad and Panchayat Samiti, second Ordinance has been issued on 1st September, 1993 by the Governor under his powers......."

While referring to the statement of objects appended to Ordinance V of 1993, Mr. Rafiq Dada had to concede that though in the initial part of the said statement reference was made to the facts leading to the amendment of sub-section (1) of section 49 of the Act, the concluding part thereof did not refer to the said amendment. The concluding part read only thus :

"The amendments now proposed are in respect of requisition to be required to be signed by not less than one thirds of the total number of Councillors in respect of no-confidence motion against the Chairman or the Deputy Chairman of a Panchayat Samiti or a Chairman of a Subjects Committee as also bringing a fresh motion of no-confidence against the Chairman or Deputy Chairman of a Panchayat Samiti."

This statement referred only to the amendments proposed to be made by the Ordinance V of 1993 to section 72(2) and (7). He submitted that Mr. Bobde was right in pointing out this defect in the draft of statement of objects appended to Ordinance V of 1993, but he submitted further that that did not affect the existence or non-existence of the factual circumstances which have been quoted in the earlier part of the said statement. Mere inadvertent omission in that behalf could not enable, according to Mr. Rafiq Dada, the petitioners to contend that it was a case of non-application of mind or nonexistence of the relevant circumstances. We agree to his submission on that point.

Mr. Rafiq Dada''s contention that so far as the impugned Ordinance was concerned, the statement of objects appended to it had made out a clear cut case of the existence of circumstances, viz.,

(i) Urgent need for regulating the number of notices of motion in the interest of a stable administration of Zilla Parishad,

(ii) The existence of frequency of no confidence motions in several Zilla Parishads in a short span of time,

(iii) The consequent destabilization in the administration,

(iv) Desirability of ensuring smooth functioning of the administration of Zilla Parishads,

(v) Passage of Legislative Bill No. XXXVIII of 1992 on similar points which was pending for quite some time for the assent of the President,

(vi) Inability of the Government to have the Bill No. II of 1993 passed in the Budget Session and the Monsoon Session of the Legislative Assembly for want of time,

(vii) Lapsing of Ordinance No. V of 1993 in the meanwhile, and

(viii) Continuance of the existence of circumstances which had enabled the Government to have promulgated Ordinance V of 1993.

He submitted that when the petitioners themselves had not made out any case whatsoever in their pleadings about other Bills which were passed during the Budget and Monsoon Sessions of the year 1992-93 except by making only vague averment on that point, the Respondent-State was not expected to place the record before the Court as to what had happened to other Bills and other Ordinances. He submitted that such an omission on the part of the Government was in fact not an omission at all for the purpose of decision of this case and, therefore, the petitioners were not entitled to make a capital out of it. The contentions of Mr. Rafiq Dada on this point appear convincing to us.

Mr. Madkholkar the learned Counsel for Respondent No. 4 supported this argument of Mr. Rafiq Dada and scanned the pleadings of the petitioners to show how the petitioners have remained satisfied with making vague allegations on some points and in making no allegations whatsoever on the factual aspect which was sought to be argued on their behalf Merely saying, without proof, that the Council of Ministers were interested in extending the term of their relatives was not enough especially when, according to the petitioners themselves, this was the case only in respect of one district and the impugned Ordinance had governed all the 36 Zilla Parishads in the State. The foundation for the contention of mala fides was, therefore, not made out. As regards fraud on the Constitution or colourable exercise of power by the Governor, it was pointed out that nothing was said in the petition except a reference to Dr. Wadhawa''s case. When a fraud is to be alleged, the particulars of fraud must be pleaded. This is the established principle of Law of pleadings, more so in the case of pleadings in the writ petition.

On carefully going through the petition and the allegations therein, we find that the petitioners had not laid any acceptable foundation to enable us to hold that no circumstances, which rendered it necessary for the Governor to take immediate action by promulgating the impugned Ordinance, could have existed.

Turning then to the legal contentions of the petitioners on the basis of Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, , we find that the said ruling has no application to the facts of the present case. The facts of that case are clearly distinguishable from the facts of the present case. In that case the challenge was to the validity of the practice of the State of Bihar in promulgating and repromulgating the Ordinances on a massive scale, and in part, the challenge was to the Constitutional validity of last three different Ordinances issued by the Governor of Bihar on different subjects in continuance of his practice of issuing large number of Ordinances. The Ordinances were issued over a very long period of time in the State of Bihar as a matter of routine and the culminating point was a Circular letter issued by the Governor when the Ordinances had lapsed or were about to lapse, requiring the Departments to take steps to have the Ordinances repromulgated. On these peculiar facts of the case, the Supreme Court observed :

"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 power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be ''perverted to serve political ends''.........."

"It is settled law that 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 allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the Constitutional provision........."

".... 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. 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 Supreme Court did acknowledge the fact that there could be a situation where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing 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 Legislature in a particular Session may be short, and in that event, the Governor may legitimately find that it is necessary to repromulgate the Ordinance.

Mr. Rafiq Dada submitted that this was exactly what had happened in the present case. Ordinance No. V of 1993 lapsed and the Bill introduced in the Legislature in that context could not be reached for want of time in the proceedings of the Legislature. He submitted that it was not necessary to file an affidavit of the Secretary to the Legislative Assembly in that behalf because in ordinary course of things and in the absence of specific pleadings on the point, the Court presumed that these things had happened so in their due course. We are in agreement in these submissions of Mr. Rafiq Dada and we hold that the challenge to the impugned Ordinance on the basis that it suffers from colourable exercise of power and/or that it is a fraud on the Constitution is misconceived in law.

Besides the aforesaid points taken up by Mr. Rafiq Dada, we may also note that in A.K. Roy and Others Vs. Union of India (UOI) and Others, . Their Lordships themselves were not very sure whether the questions like that of factual existence of the circumstances satisfying the President for exercising the power to promulgate the Ordinance, would be governed by the Rule of burden of proof, contained in section 106 of the Evidence Act. Their Lordships said that before casting the proof on the Executive to establish those circumstances at least a prima facie case must be made out by the challenger to show that there could not have existed any circumstances necessitating the issuance of the Ordinance. Every casual or passing challenge to the existence of the circumstances which rendered it necessary for the President to take immediate action by issuing an Ordinance would not be enough to shift the burden of proof to the Executive to establish those circumstances. This view is supported by the decision reported in K. Nagaraj and Others Vs. State of Andhra Pradesh and Another, . Even on the question of mala fides, the petitioners'' averments that the Bill No. II of 1993 was not placed before the Legislature on account of fear that it -would be defeated is only a conjectural statement without any foundation. It was even the basic allegation that was required to make out the case of mala fides or ulterior motive is absent in the petition. The contentions of the petitioners in this behalf, therefore, deserve to be rejected, particularly in the light of principle discussed in paragraph 11 of the decision in Mohan Lal Tripathi Vs. District Magistrate, Rae Bareilly and others, .

One point urged by Mr. Bobde in this context was that under Ordinance V of 1993 the Legislature had provided that the vote of no-confidence against the President, Vice-President and Chairman of Subjects Committee should be passed by two third of the Councillors of the Zilla Parishad and for no good reason this was sought to be further modified by the impugned Ordinance XI of 1993 to three fifth of the majority. His contention was that no justification was given by the State for making this change. The reply to this contention can be found in Mohanlal Tripathi''s case, cited supra, where the Supreme Court had observed that the reasons which persuaded the Legislature to reduce the period in that case was the matter of Legislative wisdom which cannot be scanned by the Court. Indeed, in the initial judgment of the Government or the Legislature it was felt necessary that the restriction would be of the two third of the majority, May it be that, that was felt to be an excessive restriction and a need for reduction of the age of that restriction was felt. It was probably more in the interest of the administration as well as democratic principle that the restriction should be reduced from the requirement of two third majority to the requirement of three fifth of majority. Mr. Rafiq Dada was right in submitting that this was the value judgment of the Legislature and the Court had no reason to go into it. In Mohanlal Tripathi''s case, cited supra, the Supreme Court in para 6 said :

"These are matters of policy which cannot be examined by Court. Legislature being the best judge of the needs of the people it is for the legislature to decide which system of electing representatives to the elective bodies and in what manner they should be removed would be best suitable for governance of the State. So long the policy is not vitiated by any mala fide or extraneous consideration the courts have neither jurisdiction nor adequately furnished with material to adjudicate upon its validity or correctness."

We, therefore, reject the contentions raised before us under the first head of the arguments of Mr. Bobde, learned Senior Counsel for the petitioners.

Coming to the second head of the arguments, advanced by Shri Bobde, learned Senior counsel for the petitioners, his first contention in that behalf was that the concept of democracy is the basic structure of the Constitution and so is the democratic process in the matter of election and removal of the office bearers of the Zilla Parishad. This democratic principle is given a go by amending section 49(1) of the Act so as to impair substantially the right to remove by a vote of no-confidence the office bearers by simple majority. He submitted that once there was a deviation from the principle of such removal by a vote of simple majority, the numerical-figure two third or three fifth could make no difference on principle. In given case, it could be any other figure above the half. The concept of required majority higher than simple majority itself was subversive of the basic concept of democracy. According to him, the impugned Ordinance, therefore, suffers from arbitrariness violating the fundamental right of the petitioners under Article 14 of the Constitution of India. He also submitted that again this has impaired the remedy available to the Councillors to regulate the conduct of office bearers for the purposes of carrying out properly their functions in Zilla Parishad. in accordance with the democratic process.

55 Reference was made in this context first to the decision in Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Another, . That authority lays down the following principles :

"(a) ''democracy'' is an essential feature of the Constitution;

(b) that word is commonly used in the sense of rule of majority of the community as a whole including all ''classes'' and ''masses'';

(c) ..........the manner of ascertaining the will of the majority is through the process of election."

The learned Counsel next cited the decision in the fundamental right''s case, His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, to emphasize Sikri J.''s observations pointing out the features of the basic structure of the Constitution. One of the features mentioned therein is ''republic and democratic form of Government''.

Pointing out that this democratic principle was enshrined in the preamble itself, Mr. Bobde relied upon the observations of Mudholkar, J. in para 36 of the report of the same case to show how several considerations suggest that the framers of the Constitution had attached a special significance to the preamble of the Constitution. He pointed out that in para 121 it was observed :

"It seems to me that the preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the preamble."

Reference was made then to Article 100(1) which requires that all the questions at any sitting of either House or joint silting of the Houses shall be determined by a majority of votes of the members present and voting, other than the Speaker or any person acting as Chairman or Speaker. Referring to the mode prescribed by the Constitution in which the elected Constitutional functionaries named by the Constitution could be removed by simple majority, he submitted that the Constitution itself had indicated that wherever there was an elected Constitutional functionary'', the same could be removed from his post by a vote of simple majority against him. According to him, the elected office bearers of the Zilla Parishad was a class of elected statutory functionaries, but it was not. for the purposes of removal by no-confidence motion, a class by itself. Merely because these elected office bearers of Zilla Parishad exist on account of statutory provisions, could not be a ground to group them in one class separate by itself so as to indicate a different classification. According to him. all such elected functionaries under the Legislation also must be required to be removed by a vote of simple majority. It was. therefore, submitted that the change brought about In the impugned Ordinance which is sought to be made out was not only contrary to the preamble but also Article 14 of the Constitution.

The second limb of his argument in this context was that it was in contravention of the provisions contained in Article 245 of the Constitution of India. The said Article, it was pointed out begins with the expression. ''subject to the provisions of this Constitution'' and then lays down the extent of Legislative powers and the State Legislation. If preamble was a part of the Constitution, it was submitted Article 245 of the Constitution also imposes limitation on the Parliament and the Legislature to make laws which were contrary to the principles enshrined in the preamble of the Constitution, such as the democracy.

Such Legislation, according to Mr. Bobde, may not necessarily be void, but it would b unenforceable because it runs counter to the Constitution and was, therefore, arbitrary and unenforceable.

According to him. the principle applied equally to the enactment of ordinary Law bv the Parliament or the State Legislature.

Mr. Bobde concedes that the point regarding a Legislation contrary to the dictates of the preamble of the Constitution was considered in Indira Gandhi''s case only in respect of the Constitutional amendments (see para 360 of the report) but not in respect of ordinary Legislation.

Support was also solicited from the decision in Deep Chand Vs. The State of Uttar Pradesh and Others, , where the combined effect of Articles 14, 31, 245(1) and 246 of the Constitution of India was considered and showed how the power of the States and Parliament to make Laws in respect of any of the matters enumerated in the relevant Lists of Seventh Schedule was subject to the limitation imposed by Article 13 and how if a Law was made in contravention of that Article, it could be, ''a still born Law'', on the ground that prohibition contained in Article 13 goes to the root of the matter and limits the State''s power to make Law. On the same point, observations of the Supreme Court in The State of Gujarat and Another Vs. Shri Ambica Mills Ltd., Ahmedabad and Another, , were read to us. Mr. Bobde''s contention was if there were such limitations on the Legislative powers of the Parliament in the matter of constitutional amendments, there was no reason why the said principle should not be extended to the passing of the ordinary Legislation either by the Parliament or by the State Legislature. While concluding his arguments on the point, he invited our attention to observations in His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, , where it was observed, "a power which is capable of being used against the people themselves cannot be considered as a power exercised on behalf of the people or in their interest." Therefore, he submitted that the amendment to section 49(1) of the Zilla Parishad Act, which is contrary to the basic structure of the Constitution as well as the democratic principle which is the understream of all the Constitutional provisions, offends Article 14, Article 245(1) read with Article 31 of the Constitution of India and must, therefore, be struck down.

All these arguments advanced on behalf of the petitioners stand answered, as Mr. Rafiq Dada rightly pointed out the observations in Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Another, viz. :

"The contentions on behalf of the respondent that ordinary legislative measures are subject like constitution amendments to the restrictions of not damaging or destroying basic structure, or basic features are utterly unsound. It has to be appreciated at the threshold that the contention that legislative measures are subject to restrictions of the theory of basic structures or basic features is to equate legislative measures with Constitution amendment......It there is a constitutional form then constitution laws must be distinguished from ordinary laws."

"Articles 245 and 246 give plenary powers to legislatures to legislate. The only question is whether any provision of the Constitution is violated. The power of plenary body is not to be construed like the power of a delegate. The largest kind of power will be attributed to legislate. The only prohibition is with reference to the provisions of the Constitution. The Constitution is the conclusive instrument by which powers are affirmatively created or negatively restricted. The only relevant test for the validity of a statute made under Article 245 is whether the legislation is within the scope of the affirmative grant of power or is forbidden by some provision of the Constitution."

"To accept the basic features or basic structures theory with regard to ordinary legislation would mean that there would be two kinds of limitations for legislative measures. One will pertain to legislative power under Articles 245 and 246 and the legislative entries and the provision in Article 13. The other would be that no legislation can be made as to damage or destroy basic features or basic structures. This will mean rewriting the Constitution and robbing the legislature of acting within the framework of the Constitution. No legislation can be free from challenge on this ground even though the legislative measure is within the plenary powers of the legislature."

".......Our Constitution contemplates that considerations of justice or general welfare might require restriction on enjoyment of fundamental rights."

"The theory of basic structures or basic features is an exercise in imponderables. Basic structures or basic features are indefinable. The legislative entries are the fields of legislation. The pith and substance doctrine has been applied in order to find out legislative competency, and eliminate encroachment on legislative entries. If the theory of basic structures or basic features will be applied to legislative measures it will denude Parliament and State Legislature of the power of legislation and deprive them of laying down legislative policies. This will be encroachment on the separation of powers."

"I do not think that an ordinary law can be declared invalid for the reason that it goes against the vague concepts of democracy; justice, political, economic and social; liberty of thought, belief and expression; or equality of status and opportunity, or some invisible radiation from them.

.....The term democracy has not only a descriptive denotative function but also a normative and persuasive function. Therefore, the problem of defining democracy is two-fold, requiring both a descriptive and prescriptive function. To avoid pitfalls, it is necessary to keep in mind two things - first, that a firm distinction should be made between the is and the ought of democracy, and, second, that the prescriptive and the descriptive definitions of democracy must not be confused, because the democratic ideal does not define the democratic reality and vice versa; the real democracy is not and cannot be the same as the ideal one. One cannot test the validity of an ordinary law with reference to the essential elements of an ideal democracy. It can be tested only "with reference to the principles of democracy actually incorporated in the Constitution."

"......The Constitutional amendments may, on the ratio of the Fundamental Rights case, be tested on the anvil of basic structure. But apart from the principle that a case is only an authority for what it decides, it does not logically follow from the majority judgment in the Fundamental Rights case that ordinary legislation must also answer the same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity : (1) The law must be within the legislative competence of the legislature as defined arid specified in Chapter I, Part XI of the Constitution and (2) it must not offend against the provisions of Article 13(1) and (2) of the Constitution. ''Basic structure'', by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is subjected to it because it is a constituent power. ''The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features'' �this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution."

The same point is reaffirmed in the case of Maharao Sahib Shri Bhim Singhji Ors. Vs. Union of India (UOI) and Others, . In para 21 it is said :

"The question of basic structure being breached cannot arise when we examine the vires of an ordinary legislation as distinguished from a constitutional amendment. His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, cannot be the last refuge of the Proprictariat when benign legislation takes away their ''excess'' for societal weal. Nor, indeed, can every breach of equality spell disaster as a lethal violation of the basic structure. Peripheral inequality is inevitable when large-scale equalisation processes are put into action.....Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a legislation docs go that far it shakes the democratic foundation and must suffer the death penalty. But to permit the His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, ghost to haunt the corridors of the Court brandishing fatal writs for every feature of inequality in judicial paralysation of parliamentary function.....To use the Constitution to defeat the Constitution cannot find favour with the judiciary."

In the case of Mohan Lal Tripathi Vs. District Magistrate, Rae Bareilly and others, , right to elect representative, removal/recall has been considered. The validity of no-confidence motion passed under the provisions of the U.P. Municipality Act by Board against the appellant was assailed on the ground that democratic concept and contrary to the scheme of the Act and against public interest.

In para 2 of the said decision, it has been observed :

"Democracy is a concept, a political philosophy, an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither ''fundamental right'' nor a ''common law right'', but a special right created by the statutes, or a ''political right'' or ''privilege'' and not a ''natural'', ''absolute'' or ''vested right''. Concepts familiar to common law and equity must remain stranger to Election Law unless statutorily recognised. Right to remove an elected representative too, must stem out of the statute as ''in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers''. Its existence or validity can be decided on the provision of the Act and not, as a matter of policy......Therefore, the validity or otherwise of a no-confidence motion for removal of a President, would have to be examined on applicability of statutory provision and not on political philosophy. ...The recall of an elected representative therefore, so long it is in accordance with the law cannot be assailed on abstract notion of democracy."

In the last mentioned case, the point was considered, also from the point of view of the rights of representatives of people who are creation of the statute and their statutory rights to hold the post to which they are elected.

These observations make it clear that ordinary law cannot be struck down on any of the grounds which are sought to be pressed in service on behalf of the petitioners under this head of argument. The Constitutional validity of a statute depends entirely on the existence of the legislative power and the express provision in Article 13(1) and (2) of the Constitution of India. Apart from the limitation, the Legislation is not subject to any prohibition under the Constitution of India. An ordinary law can however, be declared invalid for the reason that it goes against the vague concepts, of democracy; justice, political, economic and social; liberty of thought, belief and expression; or equality of status and opportunity, or some invisible radiation from them. It is well settled proposition that presumption of constitutionality is a favourite doctrine of the Courts. In various cases, the Courts have invariably laid support to this doctrine.

Mr. Rafiq Dada. the learned Senior Counsel for the respondent State also rightly pointed out that there are no pleading in the petition to sustain the charge of violation of Article 14 of the Constitution of India. Moreover, a right to elect or to stand for election is not a fundamental right nor a common law right. There is a presumption of constitutionality of the Act and the Court is required to assume the existence of all facts as are necessary to sustain the presumption. The Act in question has been enacted in furtherance of directive principles of State policy in favour of Panchayat Raj. In para 11C of the petition, as amended, the challenge rests only to the extent that the amendment was contrary to the basic structure of the Constitution. In view of various decisions, which we have referred to above, the contention raised by the learned Counsel for the petitioners that the impugned ordinance was contrary to the basic structure of Constitution of India or the preamble thereof is devoid of substance. Moreover, the right of the petitioners in respect of a vote of no-confidence has not been totally abridged or extinguished. Keeping in view, the object which is sought to be achieved raising some percentage in the majority required for the vote of no confidence motion, was within permissible limits and it becomes a value judgment of the Legislation. Therefore, it is outside the purview of the judcial scrutiny as held in Mohan Lal Tripathi Vs. District Magistrate, Rae Bareilly and others, , especially when the challenge in reality is to the policy decision but the petitioners have failed to establish that the policy decision was vitiated by any mala fide or extraneous considerations. The change which is made by the impugned Ordinance cannot be a subject matter of judicial scrutiny.

The last phase of the arguments advanced by Shri Bobde pertains to the limitations on the Legislative power of the Governor on account of the limitations employed in the preamble and the scheme of the Act. Both Mr. Rafiq Dada and Mr. Madkholkar contended that this point was never raised in the petition and that, therefore, they have not replied to that aspect. Mr. Bobde submitted that the point being a law point without involving any question of fact other than that pleaded in the petition, he could urge the point. Therefore, we have heard him on the point, though we agree with the submissions made by Mr. Rafiq Dada and Mr. Madkholkar.

In this context, Mr. Bobde took us through the long title of the Act and the object of the Act as it is set out in the preamble. The long title reads thus :

"Act to provide for the establishment in rural area of Zilla Parishad and Panchayat Samitis to assign to them local government functions and to entrust the execution of certain work and development schemes of the State, 5 years'' F.Y. plans to such bodies and provide decentralization of power of functions under certain enactment to those local bodies for the purpose of promoting the development of democratic institutions and securing a greater measure of participation by the people in the said plans and in Local and Governmental affairs."

Mr. Bobde, the learned Senior Counsel emphasized upon the point that the Act was to assign to the Zilla Parishads and Panchayat Samitis governmental functions and to provide for decentralization of functions of the Government to the said bodies. The object of doing so was promoting the development of the democratic institutions and securing greater measure of participation of the people in the affairs entrusted to the Zilla Parishads and Panchayat Samitis. Referring to the provisions contained in sections 51 to 54, 100,106 and 107 of the Act, which relate to the President and sections 76, 77, 101, 108 and 108A which relate to the Chairman of Panchayat Samiti he submitted that the elected office bearers of the Zilla Parishads and Panchayat Samitis have a very important role to play from the point of view of their functions, powers and duties. Reference was made then to sections 136, 137 to 165, 259, 260, 261 and 289 of the An to show how Zilla Parishads were subject to the control of the State Government. According to him, such representatives were answerable to the representatives elected by the people at large and it was for this purpose that the provisions regarding the no-confidence motions were made in sections 49, 72 and 87 of the Act. It was, therefore, submitted that the scheme of the Act did suggest that democratic principle was the underlying current of the present Legislation. Mr. Bobde, the learned counsel for the petitioners, therefore, argued that when the Legislature as a holder had conferred upon the representatives elected by the people to remove their elected representatives from the Offices by a simple vote of majority, prescribing anything more than simple majority, is a negation of the right and contrary to the proclaimed object and the scheme of the Act as well as the underlying current of democracy. Therefore, he submitted that the impugned Ordinance was contrary to the basic structure of the Act itself. In other words, it is beyond the competence of the Governor to promulgate the impugned Ordinance.

67A Mr. Rafiq Dada''s reply to this was that the Governor''s powers under Article 213(1) of the Constitution of India were co-extensive with the powers of the State Legislature and, therefore, the Ordinance promulgated by him was as any other Act passed by the Legislature. Therefore, such an Ordinance is subject only to such limitations as are applicable to an ordinary statute. He said that applying that test, it could hardly be said that the impugned Ordinance has contravened the provisions of the Act and that, therefore, it was liable to be struck down. We think, Mr. Rafiq Dada was right in his submission.

In this context, we may mention two more points which are made out by Mr. Rafiq Dada as we find considerable force in them. According to Mr. Kafiq Dada, the learned Senior Counsel for the Respondent-State, when Article 213(1) of the Constitution of India had conferred upon the Governor power to promulgate Ordinances on any matters in the State List of Subjects in the 7th Schedule, no limitation could be employed on his power to amend a legislation which was already passed by the Legislature. The power to promulgate includes the power to amend and there was no such limitation on the power of the Governor as was sought to be pressed by the learned counsel for the petitioners.

Next point urged by Mr. Rafiq Dada was that the Zilla Parishads and Panchayat Samitis are subordinate bodies subjected to a strict control of the Government. They are not the Legislative bodies. Therefore, such bodies cannot stand on the same pedestal as that of the institutions created by the Constitution itself. The very creation, existence, continuation and termination of such bodies are regulated by the statute itself, so are the rights thereunder to the people to elect their representatives, the right of the elected representatives to elect the office bearers and the right of the elected representatives to vote at a no-confidence motion. They are all regulated by the Act and, therefore, the Legislature or for that matter, the Governor in exercise of his powers under Article 213(1) of the Constitution, can regulate those matters in accordance with the value judgment of the Legislating authority. Section 49, which was the main bone of contention in this petition was then scrutinized by Mr. Rafiq Dada.

Section 49 of the Act lays down the procedure for motion of no-confidence impliedly because every Member/Councillor has right to vote in the special meeting convened for the purpose of passing no-confidence motion either against the President or the Vice-President, as the case may be. By virtue of section 87, the same provisions are applicable to a Chairman of the Subjects Committee. Section 49 of the Act contains broadly two portions. The first portion deals with the provisions, which relate to (a) calling of the meeting; (b) actual holding of the meeting; and (c) the conduct of the meeting itself. The second portion deals with the consequences that are to flow after the conclusion of the meeting. The amendment made by the impugned Ordinance does not propose to extinguish or abrogate the right conferred by section 49 in general. It was quite clear from the provisions of section 49 that it does not contemplate any charge against the office bearer who is sought to be removed or an enquiry into the said charge. It also docs not require that a specific reason should be given for passing a no-confidence motion. The special procedure prescribed in section 49 requires that the requisition should be moved by a sizable number of Councillors. An adequate notice is required to be given to the Collector and through him to all the Councillors. The Collector has his role to play in the meeting and he has to declare, after taking votes, whether or not the motion is carried or defeated. The displacement of an statutory elected functionary in this fashion was experienced to a merely a matter of transient mood of the elected representatives. Therefore, as explained in the statement of objects to the impugned Ordinance, the Government had felt if necessary to ensure that the transient view of the elected representatives should not be allowed to affect the smooth functioning of the Zilla Parishads and Panchayat Samitis. If all the Councillors arc sincere to their purpose and honest to themselves, as the Act expects it to be, the expectation of the Legislature is that a motion of no-confidence should be considered by the elected Councillors with due deliberation, sincerity, seriousness, and a sense of responsibility. If that is to happen, then raising of the norm of a particular majority for the purposes of displacement of the office bearer in our considered opinion, cannot be categorised as an arbitrary. In other words, just as a right to elect the President is subject to the discipline of the Act, the right to remove the President by no-confidence motion also must be subject to the discipline of the Act and not subject to the considerations extraneous to the Act. Viewed in this perspective, it is clear that the statutory elected office bearers of Zilla Parishads do not necessarily stand on the same pedestal as that of elected constitutional functionaries. Moreover, in the provisions contained in Bombay Village Panchayats Act, Maharashtra Municipalities Act, which arc also the Acts to regulate the bodies governing the Local Governmental affairs, the principle which is adopted in the impugned Ordinance, has been followed since long by requiring a prescribed majority for the purposes of passing of no-confidence motion against the elected office bearers. References made to Agricultural Produce Market (Regulation) Act, 1963 and Maharashtra Co-operative Societies Act, 1960, were slightly out of place, because they do not deal with Governmental matters, but reference to the provisions of those Acts, which are similar to the provisions contained in Maharashtra Municipalities Act and Bombay Village Panchayats Act is material only to the extent that though democratic set up is provided for the bodies sought to be created and regulated by those Acts, the provisions regarding removal of the elected office bearers by prescribed majority for passing no-confidence motion is adopted therein also. Significantly enough, in section 72 of the Maharashtra Zilla Parishads and Panchayat Samitis Act itself this principle is inducted since 1975. Similar provisions also exist in Gujarat Panchayats Act, 1961. We find that under such circumstances no new serious wrong has been done by promulgating the impugned Ordinance.

In Mohan Lal Tripathi Vs. District Magistrate, Rae Bareilly and others, , the Supreme Court had to deal with the similar point under a Local Act. The President of a Local Authority elected directly by the people at large was sought to be removed by the elected representatives of the people by passing a no-confidence motion against him. The validity of the section permitting such an action was challenged before the Court. While deciding the matter, the Supreme Court observed :

"........Representatives to govern is neither a ''fundamental right'' nor a ''common law right'' but a special right created by the statutes, or a ''political right'' or ''privilege'' and not a ''natural'', ''absolute'' or ''vested right''. Concepts familiar to common law and equity must remain stranger to Election Law unless statutorily recognised. Right to remove an elected representative, too, must stem out of the statute as ''in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers''. Its existence or validity can be decided on the provision of the Act and not, as a matter or policy.......In modern political set up direct popular check by recall of elected representative has been universally acknowledged in any civilised system. Efficacy of such a device can hardly admit of any doubt. But how it should be initiated, what should be the procedure, who should exercise it within ambit of constitutionally permissible limits falls in the domain of legislative power."

In relation to Parbhani Zilla Parishad itself, we may illustrate the result that might follow on account of the impugned amendment to section 49. The number of elected Councillors is 65. Therefore, simple majority is of 33 Members. Three fifth majority comes to 39 and two third majority comes to 44. Formerly for the passage of no-confidence motion 34 votes were sufficient. Now, 39 votes would be required. Thus five Members would be necessary under the impugned Ordinance. From the point of view of the smooth administration, this rise by itself may not look like arbitrary rise so as to enable us to strike down the Ordinance. Purely on legal considerations, it may not be, therefore, possible to categorise this rise as unreasonable provision nor does it amount to total abrogation of the right and the remedy of the representatives elected by the people.

In view of these considerations, we think that on legal grounds, this petition deserves to be dismissed.

In the result, this writ petition is dismissed with costs of the Respondents. Rule discharged. Interim relief stands vacated.