The main legal point established in the judgment is that the Governor's promulgation of the Ordinance during the session of the Provincial Legislatures exceeded his statutory mandate, rendering the Ordinance ultra vires and invalid.

Headnote:
Sec. 491 - Illegal Detention - Bihar Maintenance of Public Order Ordinance (Ord. II [2] of 1949) - Sec.1 (3) of Bihar Maintenance of Public Order Act, 1947 - Sec.88, Government of India Act - Power of Governor to promulgate Ordinance during recess of Legislature - Ultra Vires and Invalidity of Bihar Ordinance II [2] of 1949
Fact of the Case:

The applicants were detained under Bihar Maintenance of Public Order Ordinance (Ord. II [2] of 1949) and challenged the validity of detention, alleging that the Governor of Bihar exceeded his legislative competence in promulgating the Ordinance.
Finding of the Court:

The Court found that the Governor of Bihar promulgated the Ordinance when the Provincial Legislatures were in session, exceeding the authority conferred upon him by Section 88, Government of India Act. The Court held the Bihar Ordinance II [2] of 1949 as ultra vires and invalid, ordering the release of all the applicants from custody.
Issues: Validity of detention under Bihar Maintenance of Public Order Ordinance and the legislative competence of the Governor of Bihar in promulgating the Ordinance.
Ratio Decidendi: The Court applied the principle that an absolute enactment must be exactly obeyed, and if neglected or contravened, the action is treated as invalid and void. It emphasized the importance of adhering to the conditions annexed to statutory permission, and held that the Governor exceeded his statutory mandate, leading to the ultra vires and invalidity of the Ordinance.
Final Decision: The Court ordered the release of all the applicants from custody and issued a certificate under Sec.205, Government of India Act.

Judgment

Ramaswami, J.

1. These applications are under Sec. 491, Criminal P. C., by Bidya Chaudhary and 57 others who allege that they are illegally and improperly detained under Sec.2(1), Bihar Maintenance of Public Order Ordinance (Ord. II [2] of 1949).

2. The material facts are not in dispute. The applicants had at first been arrested under Bihar Maintenance of Public Order Act, 1947. Sec.1 (3) of that Act provided that it shall remain in force for a period of one year from the date of its commencement. The proviso contained a power to extend the operation of the Act for a further period of one year by the resolution of the two Houses of Legislature of the Province, and further gave the Provincial Government the power of modification, if any, of the Act. The Federal Court decided by their judgment dated 28th May 1949, that the proviso was ultra vires of the Provincial Legislature, and the extension of the Act beyond one year was invalid. The Federal Court also held that Bihar Act V [5] of 1949 was infructuous, as the Bihar Maintenance of Public Order Act of 1947, which it sought to amend, had come to an end when the first year expired. On 3rd June 1949, the Governor of Bihar promulgated ordinance II [2] of 1949, which re-enacted in substance the provisions of Bihar Maintenance of Public Order Act, 1947, and which purported to validate the orders of detection already made. It is the undisputed case that all the applicants have been served with orders of the Provincial Government under Sec.2 (1) of the Ordinance.

3. The validity of the detention is challenged in these proceedings on the ground that the Governor of Bihar in promulgating the Ordinance in question has exceeded his legislative competence.

4. Section 88, Government of India Act is headed "Power of Governor to promulgate Ordinance during recess of Legislature", Clause (1) of the section is to the following effect:

"If at any time when the Legislature of a Province is not 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 Governor-General, promulgate any such Ordinance if an Act of the Provincial Legislature containing the same provisions would under this Act have been invalid unless, having been reserved for the consideration of the Governor-General, it had received assent of the Governor-General."

It is manifest that this section, while granting legislative power to a Provincial Governor, imposes an express condition or restriction limiting its exercise. The section expressly enacts that the Governor is empowered to issue Ordinance only at a time when the Legislature of the Province is not in session.

5. The argument on behalf of the applicants is that the Governor of Bihar promulgated the Ordinance on 3rd June when the Provincial Legislatures were in session, and hence acted beyond the authority conferred upon him by Section 88, Government of India Act.

6. The rule of construction as regards a constitutional instrument has been stated by Lord Selbourne in Queen V/s. Burah, 5 I. A. 178 : (4 Cal. 172 P. C.):

"The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question ; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited, it is not for any Court of Justice to enquire further, or to enlarge constructively those conditions and restrictions."

When, therefore, a right or power is challenged, the duty of the Court is to kee

Click Here to Read the rest of this document