T. Venkata Reddy Etc. Etc. v. State of Andhra Pradesh (1985)

PETITIONER:
T. VENKATA REDDY ETC. ETC.
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH
DATE OF JUDGMENT27/03/1985
BENCH:
VENKATARAMIAH, E.S. (J)
MISRA RANGNATH
CHANDRACHUD, Y.V. ((CJ)
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION:
1985 AIR 724 1985 SCR (3) 509
1985 SCC (3) 198 1985 SCALE (1)613

ACT

E.S. VENKATARAMIAH AND RANGANATH MISRA, JJ.1

Constitution of India, 1950, Articles 123 and 213

Ordinance issuance of-Propriety, expediency and necessity not of courts-Governor issuing an ordinance abolishing certain posts-Ordinance lapsing and not replaced by Act-Posts abolished by Ordinance- Whether deemed to be revived.

Andhra Pradesh Abolition of Post of Part-time Village Officers Ordinance 1984, constitutional validity of- Ordinance lapsing-Not replaced by Act-Posts abolished by Ordinance Whether revived.

HEADNOTE

The, State of Andhra Pradesh was constituted under the States Reorganisation Act. 1956 consisting of two areas known as the ’Andhra Area’, and the ’Telangana Area’. There were different laws governing the village administration in the two areas. The village establishment in the Andhra Area which previously formed part of the State of Madras consisted of headmen and karnams who were village officers and talyaris, vettis and neergantis who were village servants. Their appointment and conditions of service were governed by the Madras Hereditary Village Offices Act, 1895.

In the Telangana Area, the village establishment consisted of the posts of patwaris, mali, patels and police patels who were village officers and sethsindhis and neeradis who were village servants

The State Government appointed a Committee called the Village Officers Enquiry Committee to review the existing system of part-time officers working at the village level. The Committee submitted its report in 1961 that it was necessary to reorganise the village establishment by appointment of full-time officers with larger volume of work. It also recommended that steps should be taken to reduce the number of posts by merger of functions and increasing the area over which the village officers could exercise jurisdiction.

In course of time, the Governor of Andhra Pradesh promulgated rules under the proviso to Article 309 of the Constitution called the Andhra pradesh 510 (Andhra Area) Village Offices Service Rules, 1969 providing for the regulation of the recruitment and conditions of service of holders of village offices in the Andhra Area of the State of Andhra Pradesh with effect from May 22, 1969, The State Legislature passed the Andhra Pradesh Watans (Abolition) Act, 1978 which came into force with effect from December 8, 1977 abolishing all the watans-village offices in the Telangana Area of the State. Simultaneously the Andhra Pradesh (Telangana Area) Village Offices Service Rules, 1978 were promulgated by the Governor with effect from 7th December 1977 providing for the recruitment and conditions of service of the village officers in the Telangana Area. The village officers in both the areas were however still part-time officers.

On January 6, 1984 on the recommendation of the State Government. the Governor promulgated the Andhra Pradesh Abolition of Posts of part-time Village Officers Ordinance, 1984 (Ordinance No. 1 of 1984).

The Ordinance was not replaced by an Act of the State Legislature but it was succeeded by four ordinances namely Ordinance No. 7 of 1984, 13 of 1984, 18 of 1984 and 21 of 1984.

The petitioners who were part-time village officers questioned the constitutional validity of this Ordinance by petitions filed both in this Court and in the High Court. The petitions filed in the High Court were withdrawn to this Court under Article 139 A.

The Counsel for the Petitioners did not urge the other points in view of these decisions.

Gazula Dasaratha Rama Rao v. The State of Andhra Pradesh & Ors., [1961] 2 S.C.R. 931, B.R. Sharkaranarayana & Ors. v. The State of Mysore & Ors., (A.l.R. 1966 S.C.C. 1571), K Rajendran & Ors. etc. etc. v. State of Tamil Nadu

JUDGMENT

511

It was however contended ml behalf of the petitioners (i)that the Ordinance was void and ineffective due to lack of application of mind by the Governor to the subject-matter of the Ordinance, (ii) that the Ordinance having lapsed as the Legislature did not pass an Act in its place, the posts which were abolished should be deemed to revived, and the issue of successive ordinances the subsequent one replacing the earlier one did not serve any purpose, and (iii) that the abolition of posts and the consequent deprivation of the right of the petitioners to hold the said posts amounted to an infringement of their fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution .

Dismissing the Writ Petitions. ^

HELD: 1. Under Article 123 of the Constitution the President can promulgate an ordinance on the advice of the Council of Ministers to meet the requirement of a situation when either House of Parliament is not in session. Similarly under Article 213 of the Constitution the Governor may issue an ordinance on the advice of this Council of Ministers when the Legislative Assembly or where there are two Houses of the Legislature in a State either of them is not in session. Since under Article 85 of the Constitution it is not permissible to allow a period of six months to intervene in the case of each Mouse of Parliament between its last sitting in one session and the date appointed for its first meeting in the next session and since under clause (2) of Article 123 of the Constitution an ordinance has to be laid before both Houses of Parliament and would cease to operate at the expiration of six weeks from the reassembly of Parliament, it cannot be said that either House can be avoided by the President beyond seven and a half months after the passing of an ordinance. It is open to Parliament if it chooses to approve it or not. Having regard to the conditions prevailing in India the Constitution makers thought that the ordinance making power should be given to the President to deal with unforeseen or urgent matters- The position under Article 213 of the Constitution is also the same. [523D-G]

2. The Legislative action under our Constitution is subject only to the imitations 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 in Part III of the Constitution or any other constitutional provision is in-effective. [525G-H]

3. 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 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 512 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.

Gazula Dasaratha Rama Rao v. The State of Andhra Pradesh & Ors" [1961] 2 S.C.R. 931 B.R. Shankaranarayana & Ors., v. The State of Mysore & Ors, (A.I.R. 1966 S.C. 1571), K. Rajendran & Ors. etc. etc. v. State of Tamil Nadu & Ors., 11982] 3 S.C.R. 628, Lakhi Narayan Das v. The Province of Bihar, []949) F.C.R. Vol. Xl 693, R.R. Garg etc. etc. v. Union of India & Ors. etc. [19821 I S.C.R. 947 and A.K. Roy etc. v. Union of India & Anr., [1982] 2 S. C.R. 272 at page 299. referred to.

4. 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 shall cease to operate. It only means 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. In the instant case, the Andhra Pradesh Abolition of Posts of Parttime Village Officers ordinance 1984 deals with two separate matters. By clause 3 it abolishes the posts of part-time village officers on the commencement of the Ordinance and it further declares that every person who held the post of a part-time village officer would cease to hold that post with effect from that date. By clause 4 and other allied provisions, the Ordinance has provided for the creation of posts of Village Assistants and appointment and conditions of service of Village Assistants who are full-tin-e employees of the Government. There is no doubt that a separate provision is made in clause 5 of the Ordinance for payment of some amount to the ex-part-time village officers [528H; 529A-C]

5.A mere disapproval by Parliament or the State Legislature of an ordinance cannot, however, revive closed or completed transactions.

6. The abolition of the posts and the declaration that the incumbents of those posts would cease to be holders of those posts under clause 3 of the Ordinance being completed events. there is no question of their revival or the petitioners continuing to hold those posts any longer.

7. Even if the other provisions of the Ordinance have ceased to be in force, there can be no constitutional difficulty arising therefrom because it is open to the State Government to create new posts in exercise of its powers under Article 162 of the Constitutional as long as the field is not occupied by an Act of the Legislature or a rule made under the proviso to Article 309 of the Constitution.[531 E- F]

State of Orissa v. Bhupendra Kumar Bose, [1962] 2 Supp. 380, referred to.

Steavenson v. Oliver 151 English Reports 1024, referred to. 513 & ORIGINAL JURISDICTION: Writ Petition Nos. 623, 1546/84

etc. etc.

Under Article 32 of the Constitution of India.

Subramanya Poty, T.S. Krishnamurty Iyer, Miss Malini Poduval, B. Kanta Rao, Subodh Markandeya, Mrs. Sheil Sethi, A.K Ganguli, A.K. Charkarvarti, C.S. Vaidyanathan and Prabir Choudhary, G.N. Rao T.C. Gupta. and Attar Singh for the appearing Petitioners.

K. Subramanya Reddy, Adv. Genl. (AP), E. Manohar, Addl. Adv. Genl (AP), T.V.S.N. Chari, Kailash Vasudev Sudash Menon and Miss Vrinda Grover, and B. Parthasarthi for the Respondents.

D.K Sen, P.P. Singh and R.N. Poddar. for the U.O.I.

K Ram Kumar for the Intervener.

The judgment of the Court was delivered by

VENKATARAMIAH, J. In the above writ petitions filed under Article 32 of the Constitution the petitioners have questioned the constitutional validity of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984 (Ordinance No. 1 of 1984) (hereinafter referred to as ’the Ordinance’) promulgated by the Governor of Andhra Pradesh on January 6, 1984 in exercise of his powers under Article 213 of the Constitution by which the posts of parttime Village Officers in the State of Andhra Pradesh came to be abolished and provision was made for the appointment of Village Assistants. Some of the petitions which are disposed of by this judgment had been filed before the High Court of Andhra Pradesh under Article 226 of the Constitution for similar reliefs. They were withdrawn to this Court under Article 139A of the Constitution form hearing them along with the petitions filed under Article 32.

Section 2(d) of the Ordinance defined the expression ’part-time village officer’ as a person who held any of the village offices of headman, munsiff, reddy, monigar, peddakapu, patel, karnam or patwari or triune officer or holder of any such village office by whatever designation it may be locally known including their 514 assistants appointed under (i) the Andhra Pradesh (Andhra Area) Village Offices Service Rules, 1969, (ii) the Andhra Pradesh (Telangana Area) Village Offices Service Rules, 1978 or (iii) any other law. The petitioners were the holders of these posts immediately prior to the date of the promulgation of the Ordinance.

It is necessary to set out at this stage a brief history of the posts held by the petitioners. The State of Andhra Pradesh was constituted under the States Reorganisation Act, 1956 consisting of two areas known as the ’Andhra Area’ and the ’Telangana Area’. There were different laws governing the village administration in the two areas. The village establishment in the Andhra Area which previously formed part of the State of Madras consisted of headmen and karnams who were village officers and talyaris, vettis and neergantis who were village servants. Their appointment and conditions of service were governed by the Madras Hereditary Village-Offices Act, 1895 (Madras Act No. III of 1895). They were originally hereditary offices. In Gozula Dasaratha Rama Rao v. The State of Andhra Pradesh & Ors.(l) decided on December 6, 1960 this Court held that section 6(1) of the said Act which provided for appointment of village officers and servants on the hereditary basis was hit by Article 16(2) of the Constitution and was, therefore, void. In the Telangana Area, the village establishment consisted of the posts of patwari, mali patels and police patels who were village officers and sethsindhis and neeradis who were village servants. Their duties and responsibilities were laid down by ’Dastur-ulAmal’ 1293 Hijri (Fasli 1285) and ’Dastur-e- Dehi’. These posts were also hereditary in character. They were also known as watans. After the decision of this Court referred to above, the Government of Andhra Pradesh appointed a Committee called the Village Officers Enquiry Committee under G.O.Ms. No. 1042, Revenue (1) dated June 16, 1961 to propose, among others a scheme for the village establishment of the entire State of Andhra Pradesh under the chairmanship of K.M. Unnithan, I.C.S. since the State Government was of the view that the then existing system of part-time officers working at the village level was not conducive to the interests of public administration. The said Committee submitted its report in 1961. It found that taking an overall view of the nature and quantum of work of the village officers in the two areas of the (1) [1961] 2 S.C.R.. 931. 515 State there was not enough work for all village officers and that it was necessary to reorganise the village establishment by appointment of full-time officers with larger volume of work. The Committee recommended that steps should be taken to reduce the number of posts by merger of functions and increasing the area over which the village officers could exercise jurisdiction. In course of time, the Governor of Andhra Pradesh promulgated rules under the proviso to Article 309 of the Conitution called the Andhra Pradesh (Andhra Area) Village Offices Service Rules, 1969 providing for the regulation of the recruitment and conditions of service of holders of village offices in the Andhra Area of the State of Andhra Pradesh with effect from May 22, 1969. The Legislature of the State of Andhra Pradesh passed the Andhra Pradesh Watans (Abolition) Act, 1978 which came into force with effect from December 8, 1977 abolishing all the watans (village offices together with the properties appertaining to them) other than sethsindhis and neeradies in the Telangana Area of the State. Simultaneously the Andhra Pradesh (Telangana Area) Village Offices Service Rules, 1978 were promulgated by the Governor with effect from 7th December, 1977 providing for the recruitment and conditions of service of the village officers in the Telangana Area. The village officers in both the areas were, however, still part-time officers. Then on January 6, 1984 on the recommendation of the State Government the Governor promulgated the Ordinance which is challenged in these proceedings.

Section 3 of the Ordinance declared that the posts of part-time village officers in the State of Andhra Pradesh as defined in section 2(d) thereof stood abolished with effect on and from the date of the commencement of the Ordinance which came into force at once and every person who held the post of part-time village officer in any part of the State of Andhra Pradesh would with effect on and from that date cease to hold such post. By virtue of the said provision, the posts of part-time village officers ceased to be in existence on January 6, 1984 and the incumbents of those posts ceased to be employees of the Government on and from that date. Thus the transaction of abolition of posts became an accomplished fact on January 6, 1984 and there remained nothing more to be done with regard to that event. What remained to be done was perhaps payment of amount, if any, to those who thereby ceased to be the employees of Government as provided by section 5 of the 516 Ordinance and the recruitment of persons as Village Assistants as provided by section 4 of the Ordinance for one or more revenue villages and the framing of rules relating to the conditions of their service as provided by section 6 of the Ordinance. The remaining provisions of the Ordinance were ancillary and incidental to the abolition of posts and the filling up of the new posts of Village Assistants. The abolition of the posts was, however, not dependent upon the filling up of the new posts of Village Assistants. They were two independent transactions. The abolition of the posts of part-time village officers became elective on the coming into force of the Ordinance. It may be stated here that the Ordinance has not yet been replaced by an Act of the State Legislature. It is, however, succeeded by four ordinances viz. Ordinance No. 7 of 1984, Ordinance No. 13 of 1984, Ordinance No. 18 of 1984 and Ordinance No. 21 of 1984.

These petitions are in line with two cases which have already been decided by this Court viz. B.R. Shankaranarayana & Ors. v. The State of Mysore & Ors.(1) in which the constitutionality of the Mysore Village Offices Abolition Act, 1961 (Act No. 14 of 1961) was upheld and K. Rajendran & Ors. etc. etc. v. State of Tamil Nadu & Ors.(2) in which the validity of the Tamil Nadu Abolition of Posts of Part-time Village Officers Ordinance, 1980 (Tamil Nadu Ordinance No. 10 of 1980) and of the Tamil Nadu Abolition of Posts of Part-time Village Officers Act, 1981 (Tamil Nadu Act No.3 of 1981) was upheld. Hence the learned counsel for the petitioners very fairly, and we think rightly, did not many of the contentions which has been rejected by this Court in the said decisions. They, however, pressed the following contentions before us in support of the petitions:

(i) that the Ordinance is void and ineffective due to

lack of application of mind by the Governor to the

subject matter of the Ordinance;

(ii) that the Ordinance having lapsed as the

Legislature did not pass an Act in its place, the

posts which were abolished be deemed to have

revived and the issue of (1) A.l.R.1966 S.C.1571. (2) 119821 3 S.C.R. 628. 517

successive ordinances the subsequent one replacing the

earlier one did not serve any purpose; and

(iii)that the abolition of posts and the consequent

deprivation of the right of the petitioners to

hold the said posts amounted to an infringement of

their fundamental right to life and personal

liberty guaranteed under Article 21 of the

Constitution.

Before dealing with the above contentions of the petitioners it is useful to refer to the provisions of the Constitution relating to the power of the Executive to make laws by the issue of ordinances. In the instant cases the Ordinance is issued by the Governor in exercise of the legislative power conferred on him under Article 213 of the Constitution. Article 213 reads thus:

"213. (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

the same provisions would under this Constitution

have been invalid unless, having been reserved for

the consideration on the President, it had

receive(l the assent of the President. 518

(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 re assembly 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 are summoned to

re assemble on different dates, the period of six weeks

shall be reckoned from the later of those dates for the

purposes p, 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 a 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."

Article 213 of the Constitution corresponds to Article 123 of the Constitution which confers similar powers on the president in 519 relation to matters on which Parliament can make laws. Article 123 reads thus:

"123. (1) If at any time, except when both Houses

of Parliament are in session, the President 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 Parliament,

but every such ordinance-

(a) shall be laid before both Houses of Parliament and

shall cease to operate at the expiration of six

weeks from the reassembly of Parliament, or, if

before the expiration of that period resolutions

disapproving it are passed by both Houses, upon

the passing of the second of those resolutions;

and

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

Explanation.-Where the Houses of Parliament are

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 Parliament would not under

this Constitution be competent to enact, it shall be

void."

The slight difference that exists between the above two articles arises on account of the need to obtain the assent of the President on certain legislative matters even though they are within the legislative competence of the State Legislature but that does not make any difference regarding the points to be considered in these petitions because they are common to both Article 123 and Article 213 of the Constitution,

At the outset the learned counsel for the petitioners questioned the constitutional propriety of the power of the Executive to make laws which would have a lasting effect on the rights of people in a 520 democratic society where peoples’ representatives should ordinarily be entrusted with the duty of making such laws. It is true that while our Constitution has adopted the pattern of separation of powers amongst the three organs of the Government, namely, the Legislature, the Executive and the Judiciary, it has conferred legislative power on the Executive subject to certain conditions by enacting Article 123 and Article 213 of the Constitution. It has also associated the President and the Governor with the making of the laws even when Parliament or the State Legislature, as the case may be, enacts them. Article 79 of the Constitution says that there shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States (Rajya Sabha) and the House of people (Lok Sabha). The assent of the President to a Bill passed by both the Houses of Parliament is essential for its becoming law under Article 111 of the Constitution. Similarly under Article 168 of the, Constitution it is provided that the State Legislature consists of the Governor and the Legislative Assembly of a State and where there is a Legislative Council, the State Legislature consists of the Governor and the two Houses. The Governor’s assent or the President’s assent when it is reserved for his consideration to a Bill passed by the State Legislature is necessary under Article 200 of the Constitution before it can become law. The powers conferred on the President under Article 123 and on the Governor under Article 213 of the Constitution are, however, Legislative powers which may be exercised without prior approval of the concerned legislature.

In India the Governor-General had been given the power under section 72 of the Government of India Act, 1915 to make ordinances which read thus:

"72. Power to make ordinances in case of

emergency. The Governor-General may, in cases of

emergency, make and promulgate ordinances for the peace

and good government of British India or any part

thereof, and any ordinance so made shall, for the space

of not more than six months from its promulgation, have

the like force of law as an Act passed by the Indian

legislature but the power of making ordinances under

this section is subject to the like restrictions as the

power of the Indian Legislature to make laws; and any

ordinance made under this 521

section is subject to the like disallowance as and Act

passe by the Indian legislature and may be controlled

or superseded by any such Act."

It is seen that the above provision stated that an ordinance made under it had the force of law as an Act passed by the Indian legislature but the power of making ordinances under it was subject to like restrictions as the power of the Indian legislature to make laws and any ordinance made under this section was to remain in force for the period of not more than six months from the date of its promulgation unless adopted or superseded earlier by an Act of the Legislature. Chapter IV of Part II of the Government of India Act, 1935 recognised three kinds of legislative powers enjoyed by the Governor-General. Section 42 of that Act conferred the power on the Governor-General to promulgate ordinances during the recess of Legislature. Section 43 of that Act conferred the power on him to promulgate ordinances at any time with respect to certain subjects and section 44 conferred the power on him in certain circumstances to enact Acts. Chapter IV of Part V of the Government of India Act, 1935 which contained sections 88,89 and 90 conferred similar legislative powers on the Governors of Provinces. Articles 123 and 213 of the Constitution have been enacted on the pattern of sections 42 and 88 of the Government of lndia Act, 1935. The relevant part of section 42 of the Government of India Act, 1935 is given below for ready reference. It read thus:-

"42. Power of Governor-General to promulgate

ordinances during recess of Legislature.

(1) If at any time when the Federal Legislature is not

in session the Governor-General 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

require:

(2) An ordinance promulgated under this section shall

have the same force and effect as an Act of the

Federal Legislature assented to by the Governor

General, but every such ordinance-

(a) shall be laid before the Federal Legislature and

shall cease to operate at the expiration of six

weeks from 522

the reassembly of the Legislature, or, if before the

expiration of that period resolutions disapproving it

are passed by both Chambers, upon the passing of the

second of those resolutions;

(b) shall be subject to the provisions of this Act

relating to the power of His Majesty to disallow

Acts as if it were an Act of the Federal

Legislature assented to by the Governor-General;

and

General.

(3) If and so far as an ordinance under this section

makes any provision which the Federal Legislature

would not under this Act be competent to enact, it

shall be void."

Section 88 of the Government of India Act, 1935 which was more or less in similar terms and which conferred power on the Governor of a province to issue an ordinance came up for consideration before the Federal Court of lndia in Lakhi Narayan Das v. The Province of Bihar(1) Mukherjee, J. speaking for the Federal Court observed at pages 699-700 thus:

"It is admitted that the Bihar Legislature was not

in session when this Ordinance was passed. It was

urged, however, in the Court below, and the argument

was repeated before us, that no circumstance existed as

is contemplated by s. 88 (1) which could justify the

Governor in promulgating this Ordinance. This obviously

is a matter which is not within the competence of court

to investigate. The language of the section shows

clearly that it is the Governor and the Governor alone

who has got to satisfy himself as to the existence of

circumstances necessitating the promulgation of an

Ordinance. The existence of such necessity is not a

justiciable matter which the Courts could be called

upon to determine by applying an objective test. It may

be noted here that under the Government of India Act

the Governor-General has powers to make Ordinances in

cases of emergency (vide s. 42 of the Government of (4) [1949] F.C.R. Vol. Xl 693. 523

India Act and s. 72 of Sch. IX which is now omitted);

and it was held by the Privy Council in King Emperor

v. Benoarilal (1945) 72 I.A. 57, and Bhagat Singh v.

The King Emperor (1931 ) 58 I.A. 169, that the

emergency which calls for immediate action has to be

judged by the Governor-General alone. On promulgating

an ordinance, the Governor-General is not bound as a

matter of law to expound reasons therefor, nor is he

bound to prove affirmatively in a court of law that a

state of emergency did actually exist. The language of

s. 88 postulates only one condition, namely, the

satisfaction of the Governor as to the existence of

justifying circumstances, and the preamble to the

Ordinance expresses in clear terms that this condition

has been fulfilled. The first contention of the

appellants must therefore be rejected."

Under Article 123 of the Constitution the President can promulgate an ordinance on the advice of the Council of Ministers to meet the requirements of a situation when either House of Parliament is not in session. Similarly under Article 213 of the Constitution the Governor may issue an ordinance on the advice of his Council of Ministers when the Legislative Assembly or where there are two Houses of the Legislature in a State either of them is not in session. Since under Article 85 of the Constitution it is not permissible to allow a period of six months to intervene in the case of each House of Parliament between its last sitting in one session and the date appointed for its first meeting in the next session and since under clause (2) of Article 123 of the Constitution an ordinance has to be laid before both Houses of Parliament and would cease to operate at the expiration of six weeks from the reassembly of Parliament, it cannot be said that either Houses can be avoided by the President beyond seven and a half months after the passing of an ordinance. It is open to Parliament if it chooses to approve it or not. Having regard to the conditions prevailing in India the Constitution makers a thought that the ordinance making power should be given to the President to deal unforeseen or urgent matters. The position under Article 213 of the Constitution is also the same. Dealing with the criticism that Article 123 was an undemocratic provision, Bhagwati, J. speaking for the majority of the Constitution Bench said in R.K. Garg etc. etc. v. Union of India & Ors. etc.(l) at pages 965-966 thus: (1) [1982] 1 S.C.R. 947. 524

"Now at first blush it might appear rather unusual

and that was the main thrust of the criticism of Mr.

R.K. Garg on this point-that the power to make laws

should have been entrusted by the founding fathers of

the Constitution to the executive, because according to

the traditional outfit of a democratic political

structure, the legislative power must belong

exclusively to the elected representatives of the

people and vesting it in the executive, though

responsible to the legislature, would be undemocratic,

as it might enable the executive to abuse this power by

securing the passage of an ordinary bill without

risking a debate in the legislature. But if we closely

analyse this provision and consider it in all its

aspects, it does not appear to be so startling, though

we may point out even if it were, the Court would have

to accept it as the expression of the collective will

of the founding fathers. It may be noted, and this was

pointed out forcibly by Dr. Ambedkar while replying to

the criticism against the introduction of Article 123

in the Constitution Assembly-that the legislative power

conferred on the President under this Article is not a

parallel power of legislation. It is a power

exercisable only when both Houses of Parliament are not

in session and it has been conferred ex-necessitate in

order to enable the executive to meet an emergent

situation. Moreover, the law made by the President by

issuing an Ordinance is of strictly limited duration.

It ceases to operate at the expiration of six weeks

from the reassembly of Parliament or if before the

expiration of this period, resolutions disapproving it

are passed by both Houses, upon the passing of the

second of those resolutions. This also affords the

clearest indication that the President is invested with

this legislative power only in order to enable the

executive to tide over an emergent situation which may

arise whilst the Houses of Parliament are not in

session. Further more, this power to promulgate an

Ordinance conferred on the President is co-extensive

with the power of Parliament to make laws and the

President cannot issue an Ordinance which Parliament

cannot enact into a law. It will therefore be seen that

legislative power has been conferred on the executive

by the constitution makers for a necessary purpose and

it is hedged in by limitations and conditions. The con- 525

ferment of such power may appear to be undemocratic but

it is not so, because the executive is clearly

answerable to the legislature and if the President, on

the aid and advice of the executive, promulgates an

Ordinance in mis-use or abuse of this power, the

legislature cannot only pass a resolution disapproving

the Ordinance but can also pass a vote of no confidence

in the executive. There is in the theory of

constitutional law complete control of the legislature

over the executive, because if the executive misbehaves

or forfeits the confidence of the legislature, it can

be thrown out by the legislature. Of course this

safeguard against misuse or abuse of power by the

executive would control in efficacy and value according

as if the legislative control over the executive

diminishes and the executive begins to dominate the

legislature. But nonetheless it is a safeguard which

protects the vesting of the legislative power in the

President from the charge of being an undemocratic

provision."

The above view has been approved by another Constitution Bench of this Court in A.K. Roy etc. v. Union of lndia & Anr.(1) Both these decisions have firmly established that an ordinance is a ’law’ and should be approached on that basis. The language of clause (2) of Article 123 and of clause (2) of Article 213 of the Constitution leaves no room for doubt. An ordinance promulgated under either of these two articles has the same force and effect as an Act of Parliament or an Act of the State Legislature, as the case may be. When once the above conclusion is reached the next question which arises for consideration is whether it is permissible to strike down an ordinance on the ground of non-application of mind or mala fides or that the prevailing circumstances did not warrant the issue of the Ordinance. In other words, the question is whether the validity of an ordinance can be tested on grounds similar to those on which an executive or judicial action is tested. The legislative action under our Constitution is subject only to the limitations prescribed by the Constitution and to no other. Any law made by their legislature, which it is not competent to pass, which is violative of the provisions in Part III of the Constitution or any other constitutional provision is (1) [1982]2 S.C.R. 272 at page 299. 526 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.

The true legal position about the justiciability of these issues in relation to an ordinance has been expressed in K. Nagaraj & Ors.etc. v. State of Andhra Pradesh & Anr. etc.(l) at page 50 by one of us (Chandrachud, C.J.) thus:

"It is impossible to accept the submission that

the Ordinance can be invalidated on the ground of non-

application of mind. the power to issue an ordinance is

not an executive power but is the power of the

executive to legislate. The power of the Governor to

promulgate an ordinance is contained in Article 213

which occurs in Chapter IV of Part VI of the

Constitution. The heading of that Chapter is

"Legislative Power of the Governor." This power is

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 legisla- (1) [1985] 1 SCALE 31. 527

tive power of the State Legislature is subject There

fore, 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.

On the question as to the legislative character of

the ordinance making power, we may refer to the

decisions of this Court in A.K. Roy v. Union of India

and R.K. Garg v. Union of India."

The ordinance says that it had been Promulgated on the

basis of a policy decision taken by the State

Government. The relevant part of the Ordinance reads:

"Whereas the State Government are of the opinion

that the system of part-time village officers is out-

moded and does not fit in with the modern needs of

village administration;

And whereas the State Government have, after

careful consideration, taken a policy decision to

abolish all the posts of part-time village officers on

grounds of administrative necessity and to introduce a

system of whole-time officers to be in charge of

village administration;

And whereas the Legislature of the State is not in

session and the Governor of Andhra Pradesh is satisfied

that circumstances exist which render it necessary for

him to take immediate action;

Now, therefore, in exercise of the powers

conferred by clause (1) of article 213 of the

Constitution of India, the Governor hereby promulgates

the following Ordinance."

It is next seen that the State Government introduced a Bill L.A. No. 3 of 1984 before the Legislative Assembly of the State to replace the Ordinance by an Act o n February 24, 1984 within about seven weeks from the date of the Ordinance. The said Bill was referred to a Joint Select Committee and the Bill was not passed 528 till June 7, 1984. In order to keep the effect of the Ordinance alive for purposes of any action that was still to be taken under it the Governor on the advice of the Council of Ministers again issued another ordinance, Ordinance No. 7 of 1984 dated March 21,1984. This was followed by Ordinance No. 13 of 1984 dated April 27, 1984, Ordinance No. 18 of 1984 dated June 7, 1984 and Ordinance No. 21 of 1984 dated July 19, 1984. In order to give effect to section 11 (1) of the Ordinance, the State Government promulgated the Andhra Pradesh Abolition of part-time Village Officers (Fixation of amount payable for total service) Rules, 1984 on February 24, 1984 and an Errata to the above Rules on March 27, 1984.

In the circumstances of the case we do not, therefore, find any substance in the first contention urged on behalf of the petitioners.

The next question is whether the posts of part-time village officers revive as the Ordinance is not replaced by an Act of the legislature of the State. This contention of the petitioners is based on clause (2) of Article 213 of the Constitution. It is argued on their behalf that on the failure of the State Legislature to pass an Act in terms of the Ordinance it should be assumed that the Ordinance had never become effective and that it was void ab initio. This contention overlooks two important factors namely the language of clause (2) of Article 213 of the Constitution and the nature of the provisions containedin the Ordinance. Clause (2) of Article 213 says that an ordinance promulgated under that 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. 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 shall cease to operate. It only means that it should be treated as being effective till it ceases to operate on the happening of the events mentioned; 529 in clause (2) of Article 213. Secondly the Ordinance deals with two separate matters. By section 3 of the Ordinance it abolishes the posts of part-time village officers on the commencement of the Ordinance and it further declares that every person who held the post of a part-time village officer would cease to hold that post with effect from that date. By section 4 and other allied provisions the Ordinance has provided regarding the creation of posts of Village Assistants and appointment and conditions of service of Village Assistants who arc full time employees of the Government There is no doubt that a separate provision is made in Section 5 of the Ordinance for payment Or some amount to the ex-part-time village officers. Now by virtue of section 3 of the Ordinance all the posts of part-time village officers stood abolished on January 6,1984 and the petitioners ceased to be employees of the State Government These two matters became accomplished facts on January 6, 1984, irrespective of whether the holders of these posts were paid any amount under section 5 or whether the new posts of Village Assistants were filled up or not. when if the Ordinance is assumed to have ceased to operate from a subsequent date by reason of clause (2) of Article 213, the effect of section 3 of the Ordinance was irreversible except by express Legislation. An analogous question arose for consideration before a Constitution Bench of this Court in State of Orissa v. Bhupendra Kumar Bose.(1) The facts of that case were these. Elections were held for the Cuttack Municipality and twenty seven persons were declared elected as Councillors. One of the defeated candidates filed a writ petition before the High Court of Orissa challenging the elections. The High Court set aside the elections on the ground that the electoral roll had not been prepared in accordance with law. Since the State Government felt that the said decision affected not merely the elections to the Cuttack Municipality but some other municipalities in the State of Orissa where also similar irregularities had been committed in the preparation of the electoral rolls, the Governor promulgated an ordinance on January 15, 1959 which contained provisions validating the electoral rolls and the elections held on their basis notwithstanding any judgment to the contrary. The said ordinance, however, lapsed on April I, 1959. The petitioner when had filed the writ petition earlier again filed another writ petition questioning the continuance of the elected Councillors in office by virtue of the ordinance. The High (1) [1962] 2 Supp. S.C.R. 380. 530 Court allowed the writ petition and issued an injunction to the elected Councillors restraining them from functioning as Councillors. The State Government and the councillors filed the above appeal before this Court. It was contended that the ordinance was a temporary statute which was bound to lapse after the expiration of the prescribed period and so as soon as it lapsed the invalidity in the elections to the Cuttack Municipality stood revived. This Court rejected the contention relying upon the decision in Steavenson v. Oliver.(l) This Court finally observed at pages 401-402 thus:

"Now, turning to the facts in the present case,

the Ordinance purported to validate the elections to

the Cuttack Municipality which had been declared to be

invalid by the High Court by its earlier judgment so

that as a result of the Ordinance, the elections to the

Cuttack Municipality must be held to have been valid.

Can it be said that the validation was intended to be

temporary in character and was to last only during the

life-time of the Ordinance ? In our opinion, having

regard to the object of the Ordinance and to the rights

created by the validating provisions, it would be

difficult to accept the contention that as soon as the

Ordinance expired the validity of the elections came to

an end and their invalidity was revived. The rights

created by this Ordinance are, in our opinion, very

similar to the rights with which the court was dealing

in the case of Steavenson and they must be held to

endure and last even after the expiry of the Ordinance.

The Ordinance has in terms provided that the Order of

Court declaring the elections to the Cuttack

Municipality to be l; invalid shall be deemed to be and

always to have been of no legal effect whatever and

that the said elections are thereby validated. That

being so, the said elections must be deemed to have

been validly held under the Act and the life of the

newly elected Municipality would be governed by the

relevant provisions of the Act and would not come to an

end as soon as the Ordinance expires. Therefore, we do

not think that the preliminary objection raised by Mr.

Chetty against the competence of the appeals can be

upheld." (1) 151 English Reports 1024. 531

We do not, however, mean to say here that Parliament or the State Legislature is powerless to bring into existence the same state of affairs as they existed before an ordinance was passed even though they may be completed and closed matters under the Ordinance. That can be achieved by passing an express law operating retrospectively to the said effect, of course, subject to tile other constitutional limitations.A mere disapproval by Parliament or the State Legislature of an ordinance cannot, however, revive closed or completed transactions.

In the petitions before us also the position is the same as in the decision referred to above. The abolition of the posts and the declaration that the incumbents of those posts would cease to be holders of those posts under section 3 of the Ordinance being completed events, there is no question of their revival or the petitioners continuing to hold those posts any longer. The above contention has, therefore, to be rejected in the circumstances of this case.

In view of what has been stated above it is not necessary to consider the contention of the petitioners that it was not open to the Government to issue one ordinance after another to keep alive the effect of the first ordinance as the first ordinance itself brought about the desired effect by section 3 thereof. Even if the other provisions of the Ordinance have ceased to be in force, there can be no constitutional difficulty arising therefrom because it is open to the State Government to create new posts in exercise of its powers under Article 162 of the Constitution as long as the field is not occupied by an Act of the Legislature or a rule made under the proviso to Article 309 of the Constitution.

It is next contended that by abolishing the posts of part-time village officers and by throwing the petitioners out of the posts held by them, Article 21 of the Constitution had been violated. It is hardly necessary to deal with this point elaborately since the petitioners are not being deprived o f their right to life and liberty by the abolition of the posts of part-time village officers or by their ceasing to be holders of those posts.

It is lastly urged that the State Government may be asked to consider the cases of those petitioners who possess the prescribed qualifications for appointment as Village Assistants. We are 532 informed that the number of posts of Village Assistants that are going to be created would be about one-eighth of the number of posts of part-time village officers which are abolished. It is also difficult in law to issue any direction in that behalf in the facts and circumstances of this case. We, however, record that in paragraph 21 of the Counter Affidavit filed by B.V. Janardhan Reddy, Deputy Secretary to Government, Revenue Department, Government of Andhra Pradesh it is stated thus:

"In addition, the Government is of the view that

such of those village officers who possess the required

qualifications as prescribed and otherwise found

suitable will also be considered for appointment of

Village Assistants subject to the availability of the

posts."

We trust that the State Government will give due regard to the above said statement while making appointments. Statements contained in affidavits are meant to be honoured.

In the result these petitions fail and are hereby dismissed. We make no order as to costs. N.V.K. Petitions dismissed. 533