1. Heard counsel for the parties.

2. These review petitions have been filed for recalling of order passed by us on 14.10.2014 in Writ Petition No.12777/2014 [Reported in 2014(III) MPWN 93] and companion cases heard on that day.

3. The principal objection of the State and which is the ground for review is about the observation found in the order that the Governor must consider the objections “himself” before forming subjective satisfaction about the necessity to exclude or include certain areas within the limits of Municipal area.

4. The argument proceeds that all decisions of the Governor are essentially on the basis of aid and advise of the Council of Ministers as is the mandate of Article 163 of the Constitution of India. According to the learned Advocate General, keeping in mind the observations of the apex Court in paragraphs 8 and 9 in the case of State of Uttar Pradesh v. Pradhan Sangh Kshetra Samiti AIR 1995 SC 1512, the observations in our order that the Governor must consider the objections “himself”, need to be recalled and in any case be explained or modified accordingly.

5. On the other hand, the argument of the respondents (writ petitioners) is that the observation found in our order is most appropriate and needs no modification, much less deserve to be recalled at the instance of the State. It is argued by the counsel for the respondents that the exercise of powers by the Governor by virtue of Article 243Q is an exceptional and exclusive function of the Governor. Therefore, it is ascribable to the second part of Clause (1) of Article 163 of the Constitution. In that, he exercises this power by or under the Constitution and which discretion cannot be delegated or made dependent on the aid and advise of the Council of Ministers as such. To buttress this submission reliance is placed on five decisions of the apex Court, in the case of Clariant International Ltd. and another v. Securities and Exchange Board of India (2004)8 SCC 524 (Para 26); Sudha Rani Garg (Smt.) v. Jagdish Kumar (Dead) and others (2004)8 SCC 329 (Para 9); M.P. Special Police Establishment v. State of M.P. and others (2004)8 SCC 788 (Constitutional Bench) (Paras 11 and 12); and lastly Pu Myllai Hlychho and others v. State of Mizoram and others (2005)2 SCC 92 (Paras 12 and 13).

6. To analyse the controversy brought before us, it may be apposite to advert to Article 163 of the Constitution of India which reads thus :-

“163. Council of Ministers to aid and advise Governor :-

(1) There shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

(3) The question whether any, and if so what, advise was tendered by Ministers to the Governor shall not be inquired into in any Court.”

(Emphasis supplied)

7. Clause (1) of this provision is in two parts. The first part predicates exercise of functions by the Governor on the basis of aid and advise of the Council of Ministers with the Chief Minister as the head of that Council. That is the ordinary rule. However, the second part provides for excepted category in which the Governor may have to exercise discretion on his own and without the aid and advise of the Council of Ministers. For, it is provided that when the Governor exercises any function which is by or under the Constitution required to be “exercised by him” or any of them “in his discretion”, he may do so, without the aid and advise of the Council of Ministers. That is the set