Dattatray Yedu Thombre vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(Bom) 1435

IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
S.V. Gangapurwala, Anil S. Kilor, JJ.
Dattatray Yedu Thombre – Appellant
Versus
State of Maharashtra and Others – Respondents
Writ Petition No. 10184 of 2019, 10285 of 2019, 10481 of 2019, 10538 of 2019; Civil Application No. 10244 of 2019, 10871 of 2019, 10872 of 2019
Decided On : 17-10-2019

Advocates Appeared:
P.S. Talekar, Adv., P.M. Shah, Adv., V.M. Kagne, Adv., V.R. Dhorde, Adv., V.D. Salunke, Adv., Ajeet B Kale, Adv., Pratik Bhosle, Adv., Sachin Deshmukh, Adv., P.D. Bachate, Adv., N.D. Patil Jamalpurkar, Adv.

Headnote:
Amendment Act of 1994 - Section 44 and 66 – Illegal And Arbitrary - Contours Of Its Jurisdiction, Authority And Power - Evidence An Emergent Situation - Impugned ordinance is fraud on constitution. The Legislative Assembly was in session till 02.07.2019. After the end of Legislative Assembly Session no new facts or circumstances have emerged so as to evidence an emergent situation deserving intervention of the Honble Governor by exercising Ordinance making power. Irreversible position would have already been created prior to the Legislature being called in session. The approval by the Legislature would be mere eyewash - Ordinance is politically motivated. It is based on political convenience. The Court shall go beyond the appearance to identify the real intention of the Ordinance and the same can be considered by this Court. The petitioners rely on the judgment of the Apex Court in a case of of Bombay Vs. The Sholapur Spinning and Weaving – Held, Article 213(2)(a) provides that an ordinance promulgated under that article shall cease to operate six weeks after the reassembling of the legislature or even earlier, if a resolution disapproving it is passed in the legislature. The Constitution has used different expressions such as repeal (Articles 252, 254, 357, 372 and 395); void (Articles 13, 245, 255 and 276); cease to have effect (Articles 358 and 372); and cease to operate (Articles 123, 213 and 352). Each of these expressions has a distinct connotation. The expression cease to operate in Articles 123 and 213 does not mean that upon the expiry of a period of six weeks of the reassembling of the legislature or upon a resolution of disapproval being passed, the ordinance is rendered void ab initio. Both Articles 123 and 213 contain a distinct provision setting out the circumstances in which an ordinance shall be void. An ordinance is void in a situation where it makes a provision which Parliament would not be competent to enact (Article 123(3)) or which makes a provision which would not be a valid if enacted in an act of the legislature of the state assented to by the Governor (Article 213(3)). The framers having used the expressions cease to operate and void separately in the same provision, they cannot convey the same meaning - Theory of enduring rights which has been laid down in the judgment in Bhupendra Kumar Bose and followed in T Venkata Reddy by the Constitution Bench is based on the analogy of a temporary enactment. There is a basic difference between an ordinance and a temporary enactment. These decisions of the Constitution Bench which have accepted the notion of enduring rights which will survive an ordinance which has ceased to operate do not lay down the correct position. The judgments are also no longer good law in view of the decision – Petition dismissed

JUDGMENT :

S. V. Gangapurwala, J.

The petitioners in these petitions assail the Ordinance No.XXII of 2019 dated 23.08.2019 promulgated by the State of Maharashtra for extending the election of President, Vice President and Chairman of subject Committees of some Zilla Parishads and Chairman and Vice Chairman of Panchayat Samitis on account of the ensuing General Election of the State Legislative Assembly.

2. The petitions are based on similar set of facts and involve common question of law. To avoid rigmarole are decided by common judgment.

3. Ms. Talekar, learned counsel eruditely made submissions. The other learned counsels viz. Mr. N. P. Patil Jamalpurkar, Mr. S. S. Deshmukh and Mr. Bachate echoed the arguments of Ms. Talekar and also put forth their stand. The contentions of the learned counsel for petitioners are as under:

(A) The impugned ordinance is fraud on constitution. The Legislative Assembly was in session till 02.07.2019. After the end of Legislative Assembly Session no new facts or circumstances have emerged so as to evidence an emergent situation deserving intervention of the Hon'ble Governor by exercising Ordinance making power. Irreversible position would have already been created prior to the Legislature being called in session. The approval by the Legislature would be mere eyewash.

The Ordinance is politically motivated. It is based on political convenience. The Court shall go beyond the appearance to identify the real intention of the Ordinance and the same can be considered by this Court. The petitioners rely on the judgment of the Apex Court in a case of Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd. and Others, AIR 1954 SC 119.

(B) The Ordinance cannot be used to create enduring right or irreversible position. The Ordinance cannot be in the nature of temporary enactment. The impugned Ordinance is not only contrary to the parent Act, but is in the nature of temporary enactment creating irreversible and enduring rights. Such an Ordinance is not permissible to be promulgated under Article 213 of the Constitution of India. The Hon'ble Governor is required to form satisfaction of the existence of circumstances which makes it necessary to take immediate action. In such cases, the Court can exercise the powers of judicial review. The learned counsel relies on the judgment of the Apex Court in case of Krishna Kumar Singh Vs. State of Bihar and Others, (2017) 3 SCC 1.

(C) The Ordinance does not amend the Act of 1961. The Statute lays down mandate that the term of Chairman and Vice Chairman of Zilla Parishad and/or the Panchayat Samitis shall be 2.5 years. Section 44 and 66 permitting extension of the term of Chairman and Vice Chairman till successor fills in the office is deleted by Amendment Act of 1994. The conscious deletion of the provision permitting extension of the tenure of Chairman and Vice Chairman conveys that the Legislature desired a fix term of the Chairman and Vice Chairman extension would not be permissible. Mere non-obstantive clause in the Ordinance without amending the Statute would not hold good.

(D) This Court in case of Kashinath Laxman Bhide and Ors. Vs. The State of Bombay, (1953) 55 BLR 290 has held that in case, election is conducted for a period lesser than period prescribed for a term of office in the Statute, it would be illegal.

The Statute will have precedence over executive action in case of conflict; since the Ordinance does not amend the Statute, it comes in conflict with the Statute and mere fiction will not have precedence over the Statute. The reliance is placed on the judgment of the Apex Court in a case of Babaji Kondaji Garad Vs. The Nasik Merchants Co-Operative Banks Ltd., Nasik & Ors., (1984) 2 SCC 50.

(E) The Ordinance falls foul to the test of Article 14 of the Constitution of India. The Ordinance is subject to all the Constitutional test that would be required to be satisfied by the Statute passed by the State Legislature including test of Article

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2019 Supreme(Bom) 1435

Cases Referred (9)