TYAGI, J.—The validity of the Rajasthan Urban Improvement (Amendment) Ordinance, 1972, (hereinafter called the Ordinance) has been challenged by petitioner K.R. Joshi, who (was one of the members of the Urban Improvement Trust, Jodhpur, having been elected to that body by the Municipal Council, Jodhpur. The main grounds of challenge are—

(1) that the Governor while promulgating the Ordinance did not place it for consideration before the President nor has the assent of the President been obtained on it;

(2) that the Governor while exercising this emergency legislative power acted on the advice of the executive Government, which tendered that advice on the eve of the general election to achieve certain political motives and this power under Article 213 of the Constitution has been used by the Governor in a malafide manner.

(3) that the impugned Ordinance confers arbitrary and unbridled power on the Government and, therefore, it is violative of Article 14 of the Constitution.

2. A notice was given to the Advocate General to show cause why this petition may not be admitted. Mr. Tewari, Dy. Government Advocate, has, however, appeared on his behalf.

3. It is contended by Mr. Tewari that the motive for promulgating the Ordinance is irrelevant, and the Court has no jurisdiction to examine the motive or the circumstances necessitating the promulgation of the Ordinance by the Government. According to learned Deputy Government Advocate these matters are not justiciable. As regards the assent of the President it was urged that the Court while examining this question should look to the contents of the Ordinance and if it is discovered that the Ordinance was promulgated by the Governor in the exercise of his legislative power under Entry No.5 of List II of VII Schedule of the Constitution then there was no necessity to secure the assent of the President, even though the parent Act, which stood amended by the impugned Ordinance, got the absent of the President. Regarding the arbitrary nature of power alleged to have been conferred on the executive of the State Government it was argued by Mr. Tewari that the effect of the amendment of Sec.9 of the parent Act is only to do away with the representatives elected by the Municipal Council, otherwise in substance the constitution of the Trust is the same and there is not any material alteration in the constitution thereof. Mr. Bhargava, appearing on behalf of the petitioner, has placed reliance on the following authorities in support of his arguments. Ratan Roy vs. State of Bihar(l) State of Punjab vs. Staya Pal(2) Bhupendra Kumar Bose vs. State of Orissa(3) P. Achia Chetty vs. State of Mysore (4).

4. The ordinance was promulgated by the Governor in the exercise of his power under Article 213 of the Constitution and is dated January 6, 1972. It is not disputed that the State Legislature was not in session when this Ordinance was issued. It is mentioned in the Ordinance that the Governor has satisfied himself about the circumstances which existed for issuing the Ordinance and which were necessary to take such immediate action. The question is whether this Court can look into these circumstances, which necessitated the promulgation of the impugned Ordinance and for which Governor had satisfied himself before he exercised his emergency legislative power under Article 213 of the Constitution.

5. Art. 213 (1) of the Constitution provides that if at any time, except when the Legislative Assembly of a State is in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate! action, he may promulgate such Ordinance as the circumstances appear to him to require. This language of Article 213 clearly indicates that it is Governor and the Governor alone who has to satisfy himself about the existence of such circumstances necessitating the promulgation of the Ordinance. In my opinion the existence of such a necessity is not justiciable for which the courts can be call

Click Here to Read the rest of this document