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PATNA HIGH COURT
U.N.Sinha and S.N.P.Singh JJ.
Vidyasagar Singh
Versus
Krishna Ballabha Sahay
Miscellaneous Judicial Case No. 1087 of 1964 ;
Decided On : DECEMBER 17, 1964
CONSTITUTION OF INDIA - ARTICLE 171(3)(E) - NOMINATION OF MEMBERS TO LEGISLATIVE COUNCIL - POWER OF GOVERNOR - WHETHER GOVERNOR ACTS IN HIS DISCRETION OR ON THE AID AND ADVICE OF COUNCIL OF MINISTERS - ARTICLE 166(2) - AUTHENTICATION OF ORDERS - WHETHER NOMINATIONS CAN BE QUESTIONED ON THE GROUND THAT THEY WERE NOT MADE BY THE GOVERNOR - RULES OF EXECUTIVE BUSINESS - WHETHER NOMINATIONS TO LEGISLATIVE COUNCIL FALL WITHIN THE CLASS OF CASES TO BE SUBMITTED BY THE CHIEF MINISTER TO THE GOVERNOR - ARTICLE 171(5) - QUALIFICATIONS OF NOMINATED MEMBERS - WHETHER ALL CATEGORIES MENTIONED IN THE ARTICLE MUST BE REPRESENTED - WHETHER COURT CAN ENTER INTO THE QUESTION OF FACT TO DETERMINE WHETHER NOMINATED MEMBERS HAVE THE REQUIRED QUALIFICATIONS - WHETHER NOMINATIONS ARE A FRAUD ON ARTICLE 171(3)(E) OR A COLOURABLE EXERCISE OF POWER - LOCUS STANDI OF PETITIONER TO FILE APPLICATION FOR WRIT IN THE NATURE OF QUO WARRANTO.
Fact of the Case:
Petitioner, a social worker and advocate, filed an application under Article 226 of the Constitution of India, challenging the nominations of opposite parties Nos. 3 to 7 as members of the Bihar Legislative Council, alleging that they were made in contravention of Article 171(3)(e) read with Article 171(5) of the Constitution. It was contended that the nominations were ultra vires, void and illegal as they were made without the Governor's approval and that the nominated members did not possess the special knowledge or practical experience required under Article 171(5).
Finding of the Court:
1. The power of the Governor under Article 171(3)(e) is not an exercise of the executive power of the State, but is exercised by the Governor in his discretion, without reference to the Council of Ministers. 2. The nominations made in this case were made by the Governor, in exercise of the executive power of the State vested in him on the aid and advice of the Council of Ministers. 3. Article 166(2) of the Constitution applies to nominations under Article 171(3)(e), and therefore, the petitioner cannot question the nominations made in the name of the Governor and authenticated in the manner specified in the rules made by the Governor, on the ground that the nominations were not made by the Governor. 4. The Rules of Executive Business, framed under Article 166(3) of the Constitution, have left the matter of nomination of members of the Legislative Council to the Council of Ministers for consideration. 5. The petitioner has failed to prove that the nominations challenged in this case have not been made by the Governor. 6. The requirement under Article 171(5) that the nominated members shall consist of persons having special knowledge or practical experience in respect of the matters mentioned therein does not mean that each of the subjects mentioned must be represented in every case. 7. The Court cannot enter into the question of fact to determine whether the nominated members have or have not the required qualifications necessary under the Constitution. 8. The nominations made in this case are not a fraud on Article 171(3)(e) of the Constitution or a colourable exercise of power by the Chief Minister.
Issues: 1. Whether the Governor acts in his discretion or on the aid and advice of the Council of Ministers in making nominations to the Legislative Council under Article 171(3)(e) of the Constitution. 2. Whether nominations made in the name of the Governor and authenticated in the manner specified in the rules made by the Governor can be questioned on the ground that they were not made by the Governor. 3. Whether the matter of nomination of members to the Legislative Council falls within the class of cases to be submitted by the Chief Minister to the Governor under the Rules of Executive Business. 4. Whether all categories mentioned in Article 171(5) of the Constitution must be represented in every case of nomination to the Legislative Council. 5. Whether the Court can enter into the question of fact to determine whether nominated members have the required qualifications necessary under the Constitution. 6. Whether the nominations made in this case are a fraud on Article 171(3)(e) of the Constitution or a colourable exercise of power by the Chief Minister. 7. Whether the petitioner has the locus standi to file an application for a writ in the nature of quo warranto.
Ratio Decidendi: 1. The power of the Governor under Article 171(3)(e) of the Constitution is not an exercise of the executive power of the State, but is exercised by the Governor in his discretion, without reference to the Council of Ministers. 2. The nominations made in this case were made by the Governor, in exercise of the executive power of the State vested in him on the aid and advice of the Council of Ministers. 3. Article 166(2) of the Constitution applies to nominations under Article 171(3)(e), and therefore, the petitioner cannot question the nominations made in the name of the Governor and authenticated in the manner specified in the rules made by the Governor, on the ground that the nominations were not made by the Governor. 4. The Rules of Executive Business, framed under Article 166(3) of the Constitution, have left the matter of nomination of members of the Legislative Council to the Council of Ministers for consideration. 5. The petitioner has failed to prove that the nominations challenged in this case have not been made by the Governor. 6. The requirement under Article 171(5) that the nominated members shall consist of persons having special knowledge or practical experience in respect of the matters mentioned therein does not mean that each of the subjects mentioned must be represented in every case. 7. The Court cannot enter into the question of fact to determine whether the nominated members have or have not the required qualifications necessary under the Constitution. 8. The nominations made in this case are not a fraud on Article 171(3)(e) of the Constitution or a colourable exercise of power by the Chief Minister.
Final Decision: The application is dismissed with costs.
U.N.Sinha, J.
1. This is an application under Article 226 of the Constitution of India, filed by Shree Vidyasagar Singh, describing himself as an advocate of this Court and a social worker. The substance of the application is that opposite parties Nos. 3 to 7 have not been validly nominated under Article 171(3)(e) of the Constitution of India, as members of the legislative Council of Bihar, and the prayer is that the nominations of opposite parties Nos. 3 to 6, named Shrimati Parvati Devi, Shree Parmanand, Shree Fazlur Rahman and Shree Shyama Prasad Singh, may be declared ultra vires, void and illegal. There is no specific prayer as against opposite party No. 7, but Sri Basudeva Prasad, appearing for the petitioner, has submitted that the nomination of opposite party No. 7 may also be declared void and illegal if the Court finds it proper to do so. Learned counsel has stated that this application is really for an information in the nature of quo warranto, asking for a judgment of ouster as against opposite parties Nos. 3 to 6 from the Bihar legislative Council. It is contended that the impugned nominations are ultra vires, void and illegal on the ground that they have been made in contravention of Article 171(3)(e) read with Article 171(5) of the Constitution. Article 171 runs as follows:
"171 (1) The total number of members in the legislative Council of a State having such a Council shall not exceed one-third of the total number of members in the Legislative Assembly of that State: Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty.
2. Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be as provided in Clause (3).
3. Of the total number of members of the Legislative Council of a State- (a) as nearly as may be, one-third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify;
(b) as nearly as may be one-twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university;
(c) as nearly as may be one-twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament;
(d) as nearly as may be, one-third shall be elected by the members of the legislative assembly of the State from amongst persons who are not members of the Assembly;
(e) the remainder shall be nominated by the Governor in accordance with the provisions of Clause (5).
4. The members to be elected under Sub-clauses (a), (b) and (c) of Clause (3) shall be chosen in such territorial constituencies as may be prescribed by or under any law made by Parliament, and the elections under the said sub-clauses and under Sub-clause (d) of the said clause shall be held in accordance with the system of proportional representation by means of the single transferable vote.
5. The members to be nominated by the Governor under Sub-clause (e) of Clause (3) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:-
- Literature, science, art, co-operative movement and social service,"
In order to appreciate the points which arise in this case, it will be more convenient to quote here the application filed by the petitioner in its entirety, which runs as follows:-
-
"1. That this is an application for declaration of the nominations of the Opposite parties Nos. 3 to 6, as Members of the B
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