1996 Supreme(Bom) 116

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
N.P. Chapalgaonker V.K. Barde, JJ.
Ramprasad Wamanrao Kadam Bordikar.... Petitioner.
Versus
The State of Maharashtra and others.... Respondents.
Writ Petition Nos. 5484 5588 of 1995, decided on 26-2-1996.
Advocates appeared :
A.S. Bobade, S.A., for V.H. Dighe, for petitioner, in W.P. No. 5484 of 1995.
C.J. Savant, A.G., with A.M. Kanade, G.P., for respondent Nos. 1 to 4, in W.P. No. 5484 of 1995 for respondent Nos. 1 to 3, in W.P. No. 5588 of 1995.
C.J. Savant, A.G. with Prashant Naik, for respondent No. 5, in W.P. No. 5484 of 1995 for respondent No. 4, in W.P. No. 5588 of 1995.
P.N. Joshi, holding for V.H. Dighe, for petitioner, in W.P. No. 5588 of 1995.

Headnote:Article 14-See Maharashtra Agricultural Produce Market (Regulation), Article 14.

       Articles 14 and 226-Maharashtra Agriculture Produce Marketing (Regulation) Act, 1963, Section 40 (as amended by Act 9 of 1996)-Election- Right to stand for-Not a fundamental right-It has to be exercised within limits prescribed by Statute-If It deletes provisions for electric elements, petitioner Cannot seek mandamus.

       Articles 14, 226, 245 and 246-See Maharashtra Agriculture Produce Marketing (Regulation) Act, 1963-Section 40 (amended by Act 9 of 1996).

       Articles 196 and 226-Judicial Interference In legislative wisdom-Sufficiency of legislative measure and its appropriateness cannot be examined by Courts.

       Article 197-Maharashtra Legislative Council Rules, Rule 142(2) - Deeming provision-It can come into effect-Consideration or non-consideration by legislative Council cannot affect validity of Act.

       Article 197(2)-Maharashtra Legislative Council Rules, Rule 142- Appllcability of.

       Plain reading of Article 197(2)(b) would show that one months time lapses from the date on which Bill is laid on the table of the House without the Bill being passed by it and nothing more. Constitution does not provide that there should be 30 working days for the Legislature or even a single working day for that matter, when the Legislative Council is in session. The deeming provision which permits the Bill shall be deemed to have been passed by both the Houses of the Legislature of the Slate will come into operation immediately after either of the situations listed in Clauses (a), (b) and (c) of Article 197(2) come into existence. It is true that because of prorogation of the Legislative Council on the very day when the Bill was tabled, Legislative Council had practically no opportunity to discuss it. But such an eventuality will not except the Bill from the operation of the deeming provision. It is for the Legislative council whether to sit and whether to avail the opportunity to reconsider the Bill for second time or not. But merely because the Bill was not considered by Legislative Council, It cannot be argued that the deeming provision will not come into play.

       It is true that the Legislative Council did not consider the Bill. The normal rule in the Legislatures which are by Central is that both the Houses should pass the legislative measure. But in cases of difference, in case of Parliament Institution, Constitution provides for a joint sitting. Whereas for the State Legislature, no such joint sitting has been provided. More importance has been given to the Lower House of the State Legislature and under the circumstances listed in Sub-Article (2) of Article 197 of the Constitution of India, a legal fiction is created that the Upper House has passed it though actually the measure might have been rejected by the Upper House or might have been passed with such amendment to which the lower House had not agreed. When the legal fiction is created, thing is treated to be that, in fact, it is not. The effect of such a legal fiction is. however, that a position otherwise would not have been obtained is deemed to be obtained under those circumstances. One of the circumstances listed in Sub-Article (2) is more than one month elapsed from the date on which the Bill is tabled in the Council without the Bill being passed by it. If it happens, the bill shall be deemed to have been passed by the House of the Legislature in the State in the form in which it was passed by the Legislative Assembly for the second time. If the deeming provision is there, the necessary consequences will have to follow. When the deeming provision is very clear then just like the other statutory provisions which admit of different interpretation, external aids and any reference to the intention of the Constitution makers is totally unwarranted.

       Sub-rule (2) of Rule 142 of the Maharashtra Legislative Council Rules deal with how the Bill is to be taken into consideration and how the motion for the same is to be moved. As already pointed out, Article 197(2)(b) does not require that the Bill should be moved for consideration. What it requires is that the Bill should be tabled. Whether the Minister or Member avails the opportunity to move it, whether the Council avails the opportunity to consider it, are considerations irrelevant for the operation of the deeming provision. It is true that in cases like the present one, because of the prorogation of the Legislative Council, the Council may not get the opportunity at all to discuss the measure for the second time. But since the Constitution does not say that such a consideration was much before the deeming provision should be operative, this fact cannot be taken a note of while considering the validity of the impugned Act.

       Articles 213 and 196 - Legislative power-its propriety-Courts precluded from enquiring into-Assumption that legislative discretion properly exercised-it can be exercised at any time-Appropriate time to bring measure cannot be examined by Courts.

       MAHARASHTRA AGRICULTURAL PRODUCE MARKET (REGULATION) ACT, 1964

       Section 1-Constitution of India, Article 14-Scope of.

       Th. Bombay Market Committee is different from other Market Committees not only in the composition but in the volume of the trade regulated by it and its indebtedness is also substantial in character. Court cannot persuade ourselves to go into the enquiry as to whether the deletion of the elective element from the composition would by itself he helpful in reducing the burden of the debt and bringing the affairs of the Bombay Market Committee on the right path. That would be questioning the legislative wisdom. Once Court held that the distinction made between the class regulated by the legislation and the class left out is not arbitrary, artificial or evasive, the sufficiency of the measure taken by the Legislature and its appropriateness will be out of the arena of the enquiry by the High Court.

       While the Courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from enquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. Similar is the case about the pleading of the malice which petitioner, Shri Bordikar has pleaded in Writ Petition No. 5484 of 1995. The ordinance making power is a legislative power and as in the case of legislative power, any argument about the mala fides is misconceived.

       Therefore, even assuming that the State Government was making all efforts to prevent the petitioner from again getting elected as an office-bearer of the Bombay Market Committee, that motive cannot be attributed to the Legislature and it cannot be presumed that the Governor promulgated the Ordinance or the Legislature passed the Act with this ulterior motive. Shri Bobade was fair enough to concede to this legal position.

       In the instant case that the direction was given by the High Court more than once to hold the elections of the Bombay Agricultural Produce Market Committee within certain time. These directions were mandamus in nature and were based on the fact that representatives had to be elected on the Bombay Agricultural Produce Market Committee and the State was under obligation to comply with this statutory, requirement. The basis of the order was the statutory requirement and if it would have remained unchanged, then the directions of the Court could not have been nullified by any legislative action but there was nothing wrong in changing the basis of this order, that is to say, obligation of the State to hold elections for the elected posts in the Bombay Agricultural Produce Market Committee. The ordinance and the law bas sought to change the basis on which this Court had given certain orders. It cannot be said that it was made to overrule High Courts orders.

       Section 40-Power of Court-Once matter declared within legislative competence, no Court can enquire into its propriety-Any motive cannot be attributed to Legislature.

       Section 40 (amended by Act 9 of 1996)-See Constitution of India, Articles 14 and 226.

       Section 40 (as amended by Act 9 of 1996)- Bombay Market Committee different from other committees-Both in composition and Indebtness-No Court can question legislative wisdom.

       MAHARASHTRA LEGISLATIVE COUNCIL RULES

       Rule 142-See Constitution of India, Article 197(2).

       Section 40 (as amended by Act 9 of 1996)-Constitution of India, Articles 14, 226, 245 and 246-Statutory requirement-Basis of-When It itself has been charged, it cannot be said that it has been done to override Court orders.