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TMI Blog1968 (7) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... as formed under Sardar Gurnam Singh. Some of the respondents here were Minister and members supporting the Ministry. Lt. Col. Joginder Singh Mann and Dr. Baldeo Singh were elected Speaker and Deputy Speaker respectively. 3. On November 22, 1967, 18 members of United Front Party including Sardar Lachman Singh Gill defected and formed a new party--Punjab Janta Party. With the support of the Congress a new Ministry was formed under Sardar Lach man Singh Gill on November 25, 1967. The Legislative Assembly was then summoned to meet on February 22, 1968. As the budget was to be considered, the Financial Statement was discussed on 4, 5 and 6 March. On the last day, following some disturbance in the House and consequent disciplinary action, a Resolution was moved expressing non-confidence in the Speaker. the House granted leave and then adjourned itself to the following day. 4. When the Session commenced Sardar Gurnam Singh raised a point of order under Rule 112 (1) of the Rules of Procedure made under Article 208 of the Constitution that there was a contravention of Article 179(c) in moving the resolution. It is not necessary to go into the merits of the point of order. Suffice it t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Governor was caused to be printed in the State Gazette the same day by the Chief Secretary and copies of the Gazette were despatched to the Secretary of the Assembly, the Speaker and other members on the following day. On March 13, 1968 the Governor promulgated Ordinance No. 1 of 1968 (The Punjab Legislature (Regulation of Procedure in relation to Financial Business) Ordinance, 1968). On March 14, 1968 the Governor summoned the Legislative Assembly under Article 174(3) fixing March 18, 1968 for its sitting and under Article 175(2)(4) directed the Assembly to consider: (i) Supplementary Estimates, 1967-68 (Second Installment). (ii) The Punjab Appropriation Bill, 1968 relating to the Supplementary Estimates, 1967-68 (Second Installment). 3. 174. Sessions of the Legislature, propagation and discussion. (1) The Governor shall from time to time summon the House or Houses of the Legislatures of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for their first sitting in the next session. (2) The Governor may from time to time- (a) prorogue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to adjourn the House in view of Section 3 of the Ordinance but Sardar Gurnam Singh maintained that he had such power under Rule 105. The Speaker observed: Yes, I can adjourn the (House) but what about the Ordinance? Sardar Gurnam Singh opined that there was no Ordinance. The Speaker then ruled that the House was prorogued not on 11th March, but on the 18th and gave the ruling in the following words: The order by the Governor dated 14-3-1968 summoning the House is also illegal and void and he had no power to re-summon the House once adjourned under Rule 105 of the Vidhan Sabha Rules referred to above. Therefore, in accordance with my earlier ruling dated 7-3-1968 the House stands adjourned for two months from that date. (The Sabha then adjourned) 5.05 P. M. The meeting had lasted 8 hours. 8. What followed may be extracted from the proceedings. (At 5.05 P. M. the Speaker declared that the House stands adjourned for two months and left the Chair. The Members continued to sit in the House. There was uproar and furore in the House, One of the Hon. Members occupied the Speaker's Chair and some members rushed to the Speaker's dais and stood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by 6 members and was directed against those named in the other petition and also joined the Speaker, the Chairman and Deputy Chairman of the Legislative Council, the Controller of Printing and Stationery and one Sardar Kirpal Singh, M. L. A. The arguments in the High Court ranged over a wide field. They were summarized into eight points by Justice S. B. Capoor which, it is common case, represent the essence of the matter. Stated briefly, the arguments were that the prorogation took effect on the 18th March. As a consequence the summoning of the Legislature before prorogation was invalid. These points go together. Since both the prorogation and resummoning of the Legislature were invalid the House continued to be in session although adjourned. Since the Legislature was in Session , the Ordinance could not be passed and it was a fraud upon the Constitution. Section 3 of the Ordinance was specially attacked as unconstitutional. The ruling of the Speaker given on March 18, 1968 was not open to challenge in Courts and the further proceedings in the Assembly were illegal. Even if everything was regular it was in issue whether the Speaker alone was entitled to endorse a Money Bill and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction thereof into the Legislature; or (b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or (c) an Act of the Legislature of the State containing the same provisions would under the Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President. (2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance- (a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or as the case may be, on the resolution being agreed to by the Council; and (b) may be withdrawn at any time by the Governor. Explanation - Where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... happens the motives of the Governor may conceivably be. (7) 209. Regulation by law of procedure in the Legislature of the State in relation to financial business. The Legislature of a State may, for the purpose of the timely completion of financial business, regulate by law the procedure of, and the conduct of business in, the House or Houses of the Legislature of the State in relation to any financial matter or to any Bill for the appropriation of moneys out of the Consolidated Fund of the State, and if and so far as any provision of any law so made is inconsistent with any rule made by, the House or either House of the Legislature of the State under clause (1) of Article 208 or with any rule or standing order having effect in relation to the Legislature of the State under clause (2) of that article, such provision shall prevail. Governor may conceivably be questioned on the ground of an alleged want of good faith and abuse of constitutional powers. We do not go as far as the learned Judges in In Re: Kalyanam Veerabhadrayya, AIR1950Mad243 . But that is not the case here. The bona fides of the Speaker's ruling adjourning the Assembly for so long as 2 months whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the fact to the public and conveying the order to the members. The communication is by notification in the Gazette. The action of the Secretary in sending copies of the Gazette to the members is merely ministerial. Rule 7 cannot be read as a condition precedent for the efficacy of the Governor's order provided it was duly notified. It is significant that while Mr. Chagla based his entire case on Rule 7, Mr. Garg did not rely on it but questioned the very power to prorogue in the circumstances of the case. We can understand Mr. Garg's argument although we do not accept it, but we find it difficult to appreciate the stand taken by Mr. Chagla. 8. 7. When a session of the assembly is prorogued the Secretary shall issue a notification in respect thereof in the Gazette and inform the Members. On prorogation all pending notices subject to the provisions of the Constitution and these Rules shall lapse. 17. We are, therefore, clearly of the opinion (which the High Court also unanimously entertained) that the prorogation became effective on the 11th when the Governor issued a public notification. The means open to the Governor under the Constitution are 'public no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and not under Article 209(7). We see no force in this submission which is not supported by any provision of the Constitution or authority of this Court. In fact, the powers of the legislature are expressly indicated in Article 209(7) and the Governor must, therefore, possess an equal power unless there be an expression of intention to the contrary in the Constitution. There is no such expression of intention and none can be implied from Articles 245 and 246 in the face of the special provisions of Article 213(2)(6). The Ordinance was, therefore, validly enacted under the power derived from Arts. 209 and 213. 19. Article 209(7) is intended to speed financial business in the legislatures so that attempts to filibuster, adjourn or otherwise delay such business may be avoided. If ever there was an occasion for the regulation of procedure in the legislature of the State in relation to the financial business by a law under Article 209, it was this. The Legislature could not be allowed to hibernate for 2 months while the financial business languished and the constitutional machinery and democracy itself were wrecked. To suggest that the President's rule should have been imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourn the House. What the Ordinance did was to put out of action the power to adjourn the session of the Legislature. The inconsistency between Rule 105 (2) in so far as it concerned such adjournment was to be resolved in favour of the Ordinance because the latter part of Article 209(7) itself provides that in cases of repugnancy between the rules of procedure framed under Article 208 and the law made under Article 209, the latter provision shall prevail. Article 209 gave full authority to Section 3 of the Ordinance and it was not ultra vires. 23. It is argued that we cannot read down the provisions of Section 3 of the Ordinance to make room for the application of Article 189(4)(9) and Rule 105(2) in regard to quorum and suspension of business respectively. Reference is made to the case of Diamond Sugar Mills Ltd. v. State of U. P.,: [1961]3SCR242 where the expression local area' was not read down to make it accord with the Constitution. That case was concerned with excess of legislative power under an entry. The general words were read as they were and pointed to an excessive power being conferred. In Romesh Thappar v. State of Madras, 1950CriLJ1514 the law offended Fundamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esummoning of the Legislature on the 14th. after the Ordinance was promulgated oh the 13th was perfectly valid. His ruling, therefore, was based on wrong assumption. But can his ruling be called in question? Our answer is in the affirmative. On the 18th the Speaker was faced by the Ordinance. That Ordinance, as we have shown above, was a valid law binding on the Assembly (including the Speaker) by virtue of Article 209(7). The Speaker was, therefore, powerless and his adjournment of the session without taking the mandate of the Assembly by majority as required by Section 3 of the Ordinance was null and void and of no effect. The proceedings clearly show that the Speaker himself was reluctant to adjourn the House till he was prompted by Sardar Gurnam Singh. He doubted his own powers. The Speaker did not attempt to order a fresh adjournment but only ruled that his earlier adjournment stood. Whether the Speaker adjourned the Assembly afresh or declared that the former adjournment continued to operate makes no difference. The former adjournment had come to an end by a valid prorogation and the fresh adjournment was null and void. The House transacted other business showing that the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage, the Speaker's dais was clear and the Hon. Deputy Speaker occupied the Speaker's Chair at the dais). This ruling had more content under Rule 112(1) than the ruling previously given. It was also eminently correct. There was no reason why it should not prevail when the other ruling was null and void. The Assembly kept sitting since (as is quite apparent) the members too thought that the ruling of the Speaker was to be ignored. All the proceedings were conducted without demur even from the opposition. One is tempted to think that the Speaker was not sure of his own position in a House in which he had probably lost a sustaining majority. But even if the most liberal view of the action of the Speaker is taken, one is forced to the conclusion that lie acted contrary to law and the injunction of the Constitution that the law made under Article 209(7) is to prevail over the rules of procedure. We regret to record this conclusion which we would have willingly avoided but for some arguments advanced on the lines; indicated although somewhat hesitatingly by the counsel representing the Speaker. Before tall claims tire made which cannot stand against law and the Constitution, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sufficient. 14. 180. Power of the Deputy Speaker or oilier person to perform the duties of the office of, or to act as. Speaker. (1) (2) During the absence of the Speaker from any sitting of the Assembly the Deputy Speaker or if he is also absent, such person as may be determined by the rules of procedure of the Assembly, or, if no such person is present, such other person as may be determined by the Assembly, shall act as Speaker. 30. There are several tests to determine when the provision may be treated as mandatory and when not and they have been culled from books and set down by Subba Rao, J. (as he then was) in State of Uttar Pradesh v. Babu Ram Upadhya, 1961CriLJ773 and earlier by Venkatarama Iyer, J. in State of Bombay v. R. M. D. Chamarbaugwala, [1957]1SCR874 . For our purpose it is necessary to emphasise only one distinction. In those cases where strict compliance is indicated to be a condition precedent to the validity of the act itself the neglect to perform it is indicated is fatal. But in cases where although a public duty is imposed and the manner of performance is also indicated in imperative language, the provision is usually regarded as merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islative Council that there was no certificate by him and that he had adjourned the Assembly when the Bills were adopted but the Legislative Council in spite of objection considered and passed the two Bills and the Governor assented to them. We are of opinion that the two Bills were duly certified. 34. This concludes the whole case and the events on which it is based. Mr. Garg contended for a larger issue. He said that the Legislature should not be at the mercy of the Governor and the absolute field of action open to the Legislature and the Speaker would be unreasonably cut down and thus lead to assumption of absolute powers by Governors, We do not entertain any such apprehensions. The situation created in the State of Punjab was unique and was reminiscent of happenings in the age of the Stuarts. The action of the Governor appears to be drastic. It was, however, constitutional and resulted from a desire to set right a desperate situation. As Bacon once said, no remedies cause so much pain as those which are efficacious. 35. For the reasons given above we allow the appeals, set aside the judgment of the High Court and order the dismissal of the two petitions with costs. AP ..... X X X X Extracts X X X X X X X X Extracts X X X X
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