1965 Supreme(Cal) 57

HIGH COURT OF CALCUTTA
B. N. Banerjee
SYED ABDUL MANSUR HABIBULLAH - Appellant
Versus
SPEAKER, WEST BENGAL LEGISLATIVE ASSEMBLY - Respondent
Matter 79  Of  1965
Decided On : FEBRUARY 26, 1965

The provisions of Article 176 of the Constitution, which require the Governor to address the Legislature at the commencement of the first session of each year, are mandatory and not merely directory.

Headnote:

LEGISLATURE - Summoning and Address by Governor - Mandatory - Governor's Address - Delivery - Irregularity - Effect - Governor leaving the Legislature - Constitutional significance.

Fact of the Case:

The petitioner, a member of the West Bengal Legislative Assembly, moved the Calcutta High Court under Article 226 of the Constitution for a Writ of Mandamus upon respondents Speaker and Deputy Speaker of the West Bengal Legislative Assembly directing them to forbear and refrain from presiding over or guiding or conducting the business of the said Assembly and also for a Writ of Mandamus upon the respondent Assembly directing it to refrain from conducting any business until such time as the Assembly be properly begun and also for a declaration that the proceedings of the respondent Assembly, in so far pretended to be held from February 8, 1965, be declared to be void, illegal and of no effect.

Finding of the Court:

1. The provisions of Article 176 are mandatory. Unless the provisions are complied with, that is to say, unless the Governor delivers a speech informing the Legislature of the causes of the summons, the Legislature cannot meet to transact legislative business. 2. A Governor cannot decline to deliver a speech and thus refuse to perform a constitutional duty. 3. If a Governor is incapacitated from delivering a speech himself, the President may make other provisions, under Article 160 of the Constitution, for performance of that constitutional function of the Governor. 4. But when the Governor makes due attempt to perform the duty under Article 176 but fails and makes up the failure by publication of the address to the members of the Legislature by a well-known method, namely, by laying the address on the table or the House, the duty is merely irregularly performed and the validity of such performance shall not be called in question by reason of such irregularity alone. 5. But if a Legislature meets and transacts legislative business, without the preliminary of an address by the Governor, when required tinder Article 176, its proceedings are illegal and invalid and may be questioned in a Court of Law.

Issues: 1. Whether the provisions of Article 176 of the Constitution, which require the Governor to address the Legislature at the commencement of the first session of each year, are mandatory or directory. 2. Whether the failure of the Governor to deliver the address, as required under Article 176, invalidates the subsequent sitting of the Legislature. 3. Whether the laying of the undelivered or partly delivered written address on the table may cure the defect. 4. What is the constitutional significance of the Governor leaving the Legislature being unable or unwilling to deliver the address.

Ratio Decidendi: 1. The provisions of Article 176 of the Constitution, which require the Governor to address the Legislature at the commencement of the first session of each year, are mandatory and not merely directory. 2. The failure of the Governor to deliver the address, as required under Article 176, invalidates the subsequent sitting of the Legislature. 3. The laying of the undelivered or partly delivered written address on the table may cure the defect, if the Governor makes due attempt to perform the duty under Article 176 but fails and makes up the failure by publication of the address to the members of the Legislature by a well-known method, namely, by laying the address on the table or the House. 4. The constitutional significance of the Governor leaving the Legislature being unable or unwilling to deliver the address is that it may be a sign that the Governor is unable to control disturbances inside the legislature and has either in despair or in displeasure to resort to irregularities in the matter of discharge of con sulutionaj duties and responsibilities.

Final Decision: The application was dismissed.