Versus: Efore Atta AND Atil

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1998 SCC OnLine Bom 351 : AIR 1999 Bom 53 : (1999) 1 Bom CR 574 : (1998)
100 (3) Bom LR 173
Bombay High Court

(At Goa)
BEFORE R.K. BATTA AND J.A. PATIL, JJ.
Pratapsingh Raojirao Rane … Petitioner;

Versus
Governor of Goa and others … Respondents.
Writ Petn. No. 305 of 1998
Decided on August 18, 1998
BATTA, J.:— The petitioner was Chief Minister of Goa when the Governor of Goa
withdrew his pleasure and dismissed him vide Order dated 29th July, 1998 passed in
exercise of powers vested under Article 164(1) and other enabling provisions of the
Constitution of India. By another order of the same date the Governor of Goa
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appointed Dr. Wilfred Anthony D'Souza (respondent No. 3) as Chief Minister of Goa in
the exercise of powers vested under Article 164(1) of the Constitution of India.
Respondent No. 3 Dr. Wilfred D'Souza was at that time Deputy Chief Minister of Goa.
The petitioner seeks writ in the nature of certiorari or any other writ, direction or order
or declaration that the said orders bearing No. G/CM/98/258 (Exh. P-1) and No.
C/CM/98/260 (Exh. P-16) both dated 29th July, 1998 be quashed and set aside.
2. Brief events which led to the passing of the said Orders are required to be stated
at this page.
3. The petitioner's case is:—
At the general elections held to Goa Legislative Assembly in 1994, Indian National
Congress (INC) secured 18 seats out of total number of 40 Assembly seats. The
petitioner was elected as INC candidate. Maharashtrawadi Gomantak Party (MGP)
secured 12 seats, Bharatiya Janata Party (BJP) secured 4 seats, United Goans
Democratic Party (UGDP) secured 3 seats and the remaining three seats went to the
Independents. The Governor of Goa vide Order dated 16th December 1994, by virtue
of clause (1) of Article 164 of the Constitution of India, appointed the petitioner as
Chief Minister of the State of Goa and oath of office and secrecy was administered to
him on 16th December, 1994. The Governor of Goa asked the petitioner to secure vote
of confidence on the floor of the House on 13th January, 1995. In the meanwhile,
there was split in the MGP and four members of MGP were admitted to INC Legislative
Party. The strength of INC Legislature Party thus increased from 18 to 22. At a later
stage, there was split in UGDP and one of the three elected members was admitted to
INC Legislature Party. The strength of INC Legislature Party thus increased from 22 to
23.
4. In the Assembly Session which was held in March, 1998, a Vote on Account had
been passed to provide for expenditure for four months from 1st April, 1998 till 31st
July, 1998. The budget for the financial year 1998/1999 had therefore to be passed on
or before 31st July, 1998. The Budget Session was accordingly called with effect from
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29th June, 1998 and was scheduled to conduct business both financial and otherwise
until 31st July, 1998.
5. On 24th July, 1998 the remaining two members of UGDP were admitted to
Congress Legislative Party, as a result of split in UGDP thereby raising the strength of
Congress Legislature Party from 23 to 25. By Order dated 24-7-98, the President of
Goa Pradesh Congress Committee, expelled five members from the primary
membership of INC Legislature Party for indulging in anti party activities. The said
members are Shri Chandrakant Chodanker, Shri Jagdish Govind Acharya, Shri Deo
Mandrekar, Smt. Fatima D'Sa and Dr. Carmo Pegado. The strength of the INC
Legislature Party was reduced from 25 to 20. Intimation of this expulsion was stated
to be given to the Speaker of Goa Legislative Assembly on 25th July, 1998. Likewise,
intimation was also given to the Speaker of the Goa Legislative Assembly of the
admission of two members of UGDP to the INC Legislature Party.
6. The petitioner was orally informed on 27th July, 1998 by the Speaker of the Goa
Legislative Assembly that he had received on that day letter dated 27-7-98 addressed
by respondent No. 3 Dr. Wilfred D'Souza and nine other members of the INC
Legislature Party stating that they had formed a separate group in Congress
(Legislature Party) under the name of Goa Rajiv Congress Party (GRCP) under the
leadership of respondent No. 3 Dr. Wilfred D'Souza, M.L.A. who was at the relevant
time Deputy Chief Minister of Goa. Amongst the said other nine members, were
Ministers in the Cabinet of the Government of Goa and one Deputy Speaker of the
Legislative Assembly of Goal The Ministers were Shri Dayanand Narvenkar, Shri
Subhash Shirodkar, Shri Charidrakant Chodanker and Shri Carmo Pegatto and Shri
Deo Mandrekar was Deputy Speaker of the Legislative Assembly of Goa.
7. On 27-7-98 itself the petitioner obtained certified copy of the said letter (Exh. P-
5) and filed petition before the Speaker for declaration that five out of ten members
who had signed the letter and had not been expelled from INC Legislature Party, had
become disqualified under para 2 of the Tenth Schedule. These five members are Dr.
Wilfred D'Souza (respondent No. 3), Shri Dayanand Narvekar, Shri Subhash Shirodkar,
Shri Pandukar Bhatale and Shri Pandu Vasu Naik. Another petition for disqualification
was filed by Dr. Wilfred Menezes Mesquita who is a member of INC Legislature Party
before the Speaker on 27th July, 1998 for disqualification of all the ten
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members under para 2 of the Tenth Schedule of the Constitution of India.
8. The petitioner and Dr. Mesquita had sought ad interim ex parte orders seeking to
restrain the said ten members from participating in Assembly proceedings and/or
voting in the course of such proceedings pending decision on the disqualification
application. The Speaker issued notices to the said ten members to appear before him
on 28-7-98 at 12.00 noon to show cause why interim relief should not be granted. The
said ten members did not appear before the Speaker and Dr. Mesquita moved an
application pressing his prayer for ad interim ex parte order. The Speaker granted ad
interim ex parte order at about 1.30 p.m. on 28-7-98 whereby he restrained the ten
members from participating for the time being in the Assembly proceedings and
directed them to show cause on 29th July, 1998 at 10.00 a.m. as to why the ad
interim ex parte order should not be confirmed.
9. At 2.00 p.m. on 28th July, 1998 the petitioner received communication dated
28th July, 1998 from the Governor of Goa that he may immediately, in any event
before 3.30. p.m. on the said day, seek a vote of confidence in the House and report to
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him the result thereof. The Speaker of Goa also received a message at 2.00 p.m. on 28
-7-98 from the Governor of Goa under clause (2) of Article 175 of the Constitution of
India for consideration in the Legislative Assembly. The said message reads as under:
—
“Dear Speaker,
After carefully considering the political developments in the State and having
concern about the transaction of pending important financial and other business in
the House, I, in terms of clause (2) of Article 175 of the Constitution of India,
hereby send the following message for consideration in the Legislative Assembly:—
“That the House may, on 28th July, 1998, before transacting any other business,
consider and dispose of the following matters in the order indicated, namely—
(1) The Motion of Vote of Confidence in the Ministry headed by Shri Pratapsingh
R. Rane;
(2) All stages of Motion or Motions for which notices have been given but not yet
taken up;
(3) Passing of all the remaining budgetary demands;
(4) Passing of the Annual Appropriation Bill and also the Supplementary
Appropriation Bill.
The proceedings for transacting business listed at items (1) and (2) above shall be
completed before 7.00 p.m. on 28th July, 1998 and the remaining business before
7.00 p.m. on 30th July, 1998.”
2. I have separately directed the Chief Minister to seek the Vote of Confidence in
the Ministry headed by him, in the House today, before 3.30 p.m.
Yours sincerely,
Sd/-”
10. The Assembly Session commenced at 2.30 p.m. on 28th July, 1998 when the
Speaker informed the House that he had passed ad interim orders restraining 10
members from participating in the Assembly proceedings for the time being. The
Motion of Confidence as directed by the Governor of Goa was moved at 3.30 p.m. and
the petitioner won Vote of Confidence with 16 members voting in favour and 13
members against. The votes of 10 members who were restrained were not taken into
consideration. Accordingly, the Speaker as well as the petitioner informed the
Governor that the petitioner had secured Vote of Confidence in the House.
11. On 29-7-98 at 10.00 p.m. the application for disqualification of 10 members
came up before the Speaker and on the request of the Advocates for the said
members, the matter was adjourned to 31st July, 3998 at 4.30 p.m. and the ad
interim ex parte order was continued until further orders. On 29th July, 1998 the said
ten members filed Writ Petitions before this Court challenging the legality and validity
of ad interim ex parte order of the Speaker and the said order was set aside by this
Court on 3rd August, 1998.
12. On 29-7-98 the budgetary demands were passed and the money bills were duly
certified by the Speaker. The Assembly was adjourned till 2.30 p.m. on 30th July,
1998.
13. At 8.35 p.m. on 29th July, 1998 the petitioner received a copy of Order No.
4/98/256 dated 29-7-98 passed by the Governor of Goa proroguing the Legislative
Assembly with effect from the close of business on 29th July, 1998 in exercise of
powers conferred by sub-clause (a) of clause (2) of Article 174 of the Constitution of
India.
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14. At about 8.40 p.m. on 29th July, 1998 the petitioner received the impugned
order (Exh. P-1) of the Governor of Goa dated 29-7-98 purporting to withdraw his
pleasure and dismissing the petitioner as Chief Minister of the State of Goa. On the
same day the Governor of Goa in the exercise of powers vested under Article 164(1) of
the Constitution of India appointed respondent No. 3 as the Chief Minister of the State
of Goa vide Order dated 29-7-98 (Exh. P-16) and administered him oath of office at
about 10.00 p.m.
15. The said Orders (Exh. P-1 and Exh. P-16) have been challenged on various
grounds including that there is no power under Article 164(1) or any other Article of
the Constitution empowering the Governor to withdraw his pleasure and/or dismiss a
Chief Minister of a State; that the petitioner not only secured Vote of Confidence on
the floor of the House on 28th July, 1998 but the budgetary demands for the financial
year 1998/1999 had also been passed; that the Governor has no power to dismiss the
Chief Minister unless and until the Legislative Assembly has unequivocally manifested
Vote of Confidence or expressed No Confidence in the Council of Ministers headed by
the Chief Minister and that the Governor could not lightly ignore the ex parte ad
interim order passed by the Speaker. Besides this, the orders have also been
challenged on the grounds of mala fides on the part of the Governor of Goa and these
grounds are contained under grounds (v) to (x). The mala fides alleged are that the
Governor of Goa had identified himself with the cause and vested interest of ten
members; that the petitioner was given only 1½ hours time to seek Vote of
Confidence; that the Governor was satisfied with the budgetary demands which were
validly passed and in such eventuality could not have come to the conclusion that the
Chief Minister had lost confidence of the House; that the Governor could not have
prorogued the House, except on the advice of the Chief Minister/Council of Ministers
and in proroguing the House he acted mala fide and without jurisdiction; that even
though the petitioner was given hardly 1½ hours time to seek Vote of Confidence on
the floor of the House, respondent No. 3 has been given 21 days time for the said
purpose; that the Governor of Goa was an active member of the BJP prior to his
appointment as Governor of Goa and the GRCP was being supported by four members
of the BJP besides eight members of MGP. it is further alleged that the Governor acted
in haste and the action was designed to get the petitioner out in order to install
respondent No. 3 in Office and giving him sufficient time to enable him to resort to
impermissible acts like horse trading.
16. The petitioner sought stay of Order (Exh. P-16) and for restraint on respondent
No. 3 from functioning as Chief Minister of Goa and for an order to permit the
petitioner to continue to exercise powers, of the Chief Minister.
17. When the matter came up on 5-8-98, the learned Advocates appearing on
behalf of all the parties, agreed that the matter be finally heard at an early date and
Rule be issued for 13th August, 1998. However, learned Senior Counsel Shri
Parasaran, appearing on behalf of the petitioner, prayed for status quo and the learned
Advocate appearing on behalf of the Governor of Goa sought time for seeking
instructions on that aspect alone. The matter was thus adjourned to 6th August, 1998
for considering the request made by the petitioner of status quo. On that day, learned
Senior Counsel Shri S.K. Kakodkar, appearing on behalf of respondent No. 2, urged
that the objections relating to maintainability be permitted to be raised at the time of
hearing of the petition. In view of the above, Rule was issued and the matter was
finally heard on 13th and 14th August, 1998.
18. Affidavit has been filed on behalf of Governor of Goa by Shri Dharmendra
Sharma, Secretary to the Governor of Goa, wherein it has been submitted that in view
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of the constitutional provision including that of Article 361 of the Constitution,

Governor of Goa ought not to have been made party in these proceedings. It is further
submitted that without in any manner waiving his constitutional immunity, the
Governor of Goa has, out of deference to this Court, permitted him (Shri Dharmendra
Sharma, Secretary to the Governor of Goa) to place before the Court the relevant
documents, facts and circumstances as also to refute the incorrect and baseless
allegations of mala fides in the Writ Petition. The same are:—
On 27th July, 1998, at about 10.00 a.m. Dr. Wilfred D'Souza, Respondent No. 3,
along with others, called on the Governor and submitted copy of letter dated 27-7-
1998 signed by Dr. Wilfred D'Souza and 9 MLAs addressed to Speaker indicating the
split in Congress (I) and
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the formation of Goa Rajiv Congress party on 24-7-1998 and requested for separate
sitting arrangements; copy of letter dated 27-7-1998 signed by Dr. Wilfred D'Souza
addressed to Governor informing about the split in the Congress (I) Party and
formation of G.R.C.P. and enclosing letters of support from 8 MLAs 4 MGP, & MLAs of
BJP and 1 Independent MLA and requesting the Governor to ask the Petitioner to take
vote of confidence on the floor of the House. Dr. Wilfred D'souza also handed over his
letter of resignation from the Ministry as well as that of Dr. Carmo Pegado, Dayanand
Narvekar, Subhash Shirodkar and Chandrakant Chodankar from Rane Government,
which are dated 27-7-1998. In all, 23 MLAs led by Dr. Wilfred D'Souza had appeared
before the Governor and requested him that action be taken against the Petitioner who
had lost majority. The governor told the said 23 MLAs to go to the House which was
already in session and, if so advised, to move a Motion of No-Confidence against the
Rane Government.
19. On 27th July 1998, a copy of Order purporting to have been passed three days
before, i.e. on 24th July 1998, was received on fax from Shri Shantaram Naik,
President of Goa Pradesh Congress stating that 5 MLAs, namely, Dr. Carmo Pegado,
Shri Jagdish Govind Acharaya, Shri Deo Mandrekar, Smt. Fatima D'Sa and Shri
Chandrakant Chodankar had been expelled from the party. On the same day it about
11 a.m., the Petitioner met the Governor and submitted letter dated 24th July 1998
requesting that 5 Ministers, namely, Dr. Wilfred D'Souza, Dr. Carmo Pegado, Shri
Dayanand Narvekar, Shri Subhash Shirodkar and Shri Chandrakant Chodankar be
removed from his Cabinet as they no longer enjoyed his confidence.
20. On 27-7-1998, the proceedings in the Assembly were disrupted and the
Speaker adjourned the House till 28-7-1998. Thereafter, 23 MLAs led by Dr. Wilfred
D'Souza met the Governor at 4.00 p.m. and protested about deliberate stalling of
proceedings by the Treasury Benches and the role of the Speaker in adjourning the
House immediately so as to block the chances of their move of no confidence and to
rule out an imminent adverse vote on the financial demands listed for the day. On the
same day, the Speaker met the Governor at 5.00 p.m. and informed him of his
inability to conduct the proceedings of the House in view of the behaviour of the
Treasury Benches. The Governor expressed his concern over the situation and asked
him to submit a report of the proceedings, which was duly submitted by him.
21. On 27th July 1998 itself, the Petitioner called on the Governor at 7.00 p.m. in
which meeting the Governor discussed with the Petitioner the imperative of having a
confidence vote, the question of non transaction of important and time-bound financial
business and the role of the Treasury Benches in stalling the proceedings of the House
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in the afternoon of 27-7-1998 as reported by the Speaker. The Petitioner sought from
the Governor time till 2.00 p.m. on 28-7-1998 to revert back to the Governor as to
whether he is still commanding the majority and that in case he found that he no
longer commanded majority, he would submit his resignation so as to avoid political
stalemate and to ensure that the important and time-bound financial business was
completed. This discussion took place in the presence of some Officers including Shri
Dharmendra Sharma, Secretary to the Governor who has filed this Affidavit. The
Petitioner did not revert back to the Governor and filed petition against 5 MLAs under
the Tenth Schedule seeking disqualification.
22. On 28-7-1998, at about 12 noon, G.R.C.P. MLAs presented a petition to the
Governor that the two petitions for disqualification had been filed against them on 27-
7-1998 and that the Speaker was likely to go ahead with the hearing of the
disqualification petition on 28th July itself in an attempt to preempt their participation
in the vote of confidence and as such they requested Governor's intervention. Since
the Governor did not receive any response from the Chief Minister, he issued directions
under Article 175(2) of the Constitution to the Speaker, the text of which is already
recorded in Para 9 of this judgment.
23. Despite Governor's directions, the Speaker permitted question hour on 28-7-
1998, and pronounced his ruling that 10 Members of G.R.C.P. had been restrained
from participating in the proceedings. The Chief Minister sent a fax message to the
Governor that he had moved Motion of Confidence at 3.10 p.m. which was carried by
Voice Vote. Simultaneously, a fax message came from the office of the Speaker saying
that the vote of confidence by the Chief Minister was won by
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a division of 17:13 votes. A short while thereafter, another fax message was received
from the Speaker saying that the vote of confidence was in fact carried with a division
of 16:13. At 4.00 p.m. on 28-7-1998, the Governor received a signed petition from 23
MLAs stating that no vote of confidence occurred in the House and the proceedings
were fictitious. The copy of the proceedings from the Assembly reflected that 16
Members voted in favour of Vote of Confidence and 23 Members voted against.
However, in view of the restraint injunction passed by the Speaker against 10 MLAs of
G.R.C.P., the vote against the Motion of Confidence stood reduced to 13. A letter from
the Speaker was also received by the Governor. The budgetary demands and the
money bill were passed after the 23 MLAs walked out of the House. The said 23 MLAs
once again presented themselves before the Governor.
24. The allegations relating to mala fides have been vehemently denied in the
Affidavit; that the allegation that the Petitioner was required to seek vote of
confidence within a short span of 1 and ½ hour was incorrect; that the petitioner never
complained of lack of sufficient time for that purpose; that it was the Petitioner himself
who had sought time on 27-7-1998 till 2.00 p.m. from the Governor; and that the
contention of the Petitioner that he had won the confidence by Voice Vote was falsified
by the Assembly proceedings. It is also submitted in this Affidavit that the Petitioner
was fully aware of what had transpired on 27th July 1998 and as already been stated
in the previous paragraphs of the Affidavit.
25. The Respondent No. 3 Dr. Wilfred D'Souza has filed Return wherein the stand
taken is that the Petition is not maintainable and is liable to be dismissed on various
grounds including that in view of various provisions under Article 361 read with Article
163(2) of the Constitution of India, the jurisdiction of the Court to enquire into and
adjudicate upon the validity or otherwise of the impugned action on the part of the
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Governor in dismissing the Petitioner as Chief Minister as well as appointing the

Respondent No. 3 as Chief Minister is barred; that in terms of Article 163 and/or
Article 164 of the Constitution it is the exclusive prerogative of the Governor to
appoint Chief Minister, who, in the opinion of the Governor, commands confidence of
the majority of the Members of the Legislative Assembly; that the exercise to ascertain
the majority support which is based on assessment and subjective satisfaction of the
Governor cannot be subject-matter of judicial review and there are no judicially
manageable standards to adjudicate upon the correctness or otherwise of such
assessment and subjective satisfaction of the Governor; that it is well settled that the
Courts would not enter into political thicket and that the Chief Minister holds the Office
at the pleasure of the Governor. It is also alleged that the Petition is based on false
and anti-dated documents including the alleged explosion order dated 24th July 1998;
the Petitioner is guilty of suppression of material facts; that three different
contradictory versions were placed before the Governor by the Petitioner and the
Speaker. The Respondent No. 3 has submitted that on 24th July 1998, at about 7.15
p.m., 10 Members of I.N.C. Legislature Party decided to split from the regional party to
form a group known as Goa Rajiv Congress Party and elected Dr. Wilfred D'Souza as
leader of the group. Besides this, the Respondent No. 3 has narrated the events which
took place from 27-7-1998 onwards till the order of prorogation of the Goa Legislative
Assembly was issued on 29-7-1998 and the impugned Orders in question were
passed. It is not necessary to give these details since the said details have already
been given by the Petitioner as well as in the Affidavit filed by Shri Dharmendra
Sharma, Secretary, to the Governor and the same are already recorded in the earlier
part of this Judgment.
26. We shall first deal with the question of maintainability of the petition which has
been raised by the respondents. Learned Senior counsel, Shri Parasaran, for the
petitioner, submitted before us that under Article 163 of the Constitution, the
Governor acts on the aid and advice of the council of Ministers headed by the Chief
Minister, except for those cases where the Governor is required to exercise his
functions or any of them in his discretion under the Constitution. He then pointed out
instances where discretion is conferred by the Constitution under Article 371A(1)(b)(f)
of the Constitution to act in his individual judgment where 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
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ought or ought not to have acted in the exercise of his individual judgment. Our
attention was then drawn to the judgment of the Apex Court in Samsher Singh v.
State of Punjab, AIR 1974 SC 2192 and particularly to para 153 which states that the
President and the Governor being custodians of all executive and other powers under
various Articles of the constitutional are bound to exercise their formal Constitution
powers only upon and in accordance with the advice of their Ministers save in a few
exceptional situations namely: (a) choice of Prime Minister (Chief Minister) restricted
though this choice is by the paramount consideration that he should command a
majority in the House; (b) the dismissal of the Government which has lost its majority
in the House but refuses to quit office and (c) dissolution of the House where an
appeal to the country is necessitous although in this area the Head of the State should
avoid getting involved in politics and must be advised by his Prime Minister (Chief
Minister) who eventually will take responsibility for this step. These are instances
where the Governor does not act on the aid and advice of the Ministers, but he acts on
his own discretion. Learned Senior Counsel emphasised that the dismissal of the Chief
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Minister is controlled by the consideration that the Chief Minister has lost his majority
in the House.
27. The learned Senior Counsel then urged after placing reliance on Article 361 of
the Constitution that the Governor shall not be answerable to any Court for the
exercise and performance of powers and duties of his office or for any act done or
purported to be done by him in the exercise and performance of those powers and
duties, but even in these cases appropriate proceedings can be instituted by a person
aggrieved from the action of the Governor against the Government of a State in view
of the second proviso to Article 361 of the Constitution. Placing reliance upon the
judgment of the Apex Court in S.R. Bommai v. Union of India, (1994) 3 SCC 1 : (AIR
1994 SC 1918) it was submitted that judicial review is basic feature of the
Constitution which cannot be done away with even by the exercise of Constituent
power; that howsoever high a constitutional functionary may be, the orders passed by
such constitutional functionary, are amenable to judicial review under the
Constitution; that irrespective of whether immunity provided under Article 361 of the
Constitution of India is attracted or not, the proceedings of such authority shall be
open to judicial review and second proviso to Article 361 enables the institution of
proceedings against the appropriate Government; that order of the Governor falling
under Article 361(1) will be open to judicial review not only on the grounds of mala
fides, but on grounds of ultra vires or unconstitutionality; the immunity cannot
operate to close the doors to judicial review and even if the constitutional functionary
mentioned in Article 361 is not answerable to Court even on grounds of mala fides, the
order will nevertheless be liable to judicial scrutiny if found to be bad in law. It is
urged that in spite of the fact that the Chief Minister had been successful in getting
vote of confidence in the Assembly, yet the Governor acted with mala fides and
dismissed the petitioner and the writ petition is maintainable on the basis of alleged
mala fides which has vitiated the order of dismissal of the petitioner and the said
dismissal is null and void ab initio. It was also pointed out by learned Senior Counsel
that the prorogation of the Assembly while it was in session without the advice of the
council of Ministers headed by the petitioner, is a clear instance of mala fides on the
part of the Governor which method was adopted solely with a view to dismiss the
petitioner and to install respondent No. 3 as the Chief Minister. In this behalf, reliance
was placed on State of Punjab v. Satya Pal Dang, AIR 1969 SC 903. It is pointed out
that no emergency had arisen to prorogue the Assembly on 29th July, 1998 when it
was in session and the session was in fact to continue till 31st July, 1998. Learned
Senior Counsel has drawn our attention to various paragraphs from the judgment of
the Apex Court in S.R. Bommai v. Union of India (AIR 1994 SC 1918) (supra) and to
the judgment of the Apex Court in A.K. Kaul v. Union of India, AIR 1995 SC 1403,
where a Division Bench of the Apex Court has explained the judgment in Bommai's
case. Our attention was specifically drawn to para 11 of A.K. Kaul's case (supra)
wherein distinction has been drawn between judicial review and justiciability of a
particular action; that power of judicial review is implicit in written constitution unless
expressly excluded by provisions of the Constitution and to para 12 of the said
judgment where the case of State of Rajasthan v. Union of India, AIR 1977
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SC 1361, has been referred to wherein it was held that if the satisfaction is mala fide
or is based on wholly extraneous and irrelevant grounds, the Court would have
jurisdiction to examine it because in that case there would be no satisfaction of the
President in regard to the manner which is to be satisfied. Our attention was also
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drawn to para 20 in A.K. Kaul's case (AIR 1995 SC 1403) (supra) wherein it has been
pointed out that in Bommai's case (AIR 1994 SC 1918) it has been held that the
exercise of power under Article 356(1) is subject to judicial review and the majority
view in the matter of justiceability of the satisfaction of the President is that it is
justiceable and open to challenge on grounds of mala fides or being based wholly on
extraneous and/or irrelevant grounds. Reliance is also placed on the judgment of the
Apex Court in Mr. Vamuzo v. Union of India, 1988 (2) GLJ 468, wherein it has been
held that even in the absence of the Governor as a party to the proceedings where
proclamation under Section 356 is challenged, the Governor's report can be subject-
matter of scrutiny. It has been urged that in Bommai's case where the Governor was
not a party to the proceedings it was held that the Governor had acted in a mala fide
manner.
28. On the basis of the above submissions, learned Senior Counsel for the
petitioner, has urged before us that the Writ Petition is maintainable against the
respondents even in spite of the provisions contained under Article 361 of the
Constitution and the action of the Governor in dismissing the petitioner and appointing
respondent No. 3 as the Chief Minister is subject to judicial review.
29. Learned Senior Counsel Shri Ashok Dessai, appearing on behalf of Respondent
No. 3, submitted that the questions which are required to be examined are:—
(1) Whether the Petition is maintainable, that is to say, whether the door can be
open for review of the impugned orders passed by the Governor and
(2) How wide the doors should be open.
According to the learned Senior Counsel the orders passed by the Governor fall in
four broad categories:—
(i) The exercise of executive power in accordance with the provisions of the
Constitution by or under the Order of the Governor wherein full judicial review is
available;
(ii) Orders passed by the Governor on aid and advice of the Council of Ministers
headed by Chief Minister wherein full judicial review is available;
(iii) Orders like grant of pardon under Article 161 and the Orders passed by the
President on the report submitted by the Governor under Article 356 on account
of which limited judicial review is available and
(iv) Where Governor acts without aid and advice of the Council of Ministers headed
by Chief Minister and acts in his own discretion.
He then made a reference to the judgment of the Apex Court in Samsher Singh v.
State of Punjab, AIR 1974 SC 2192 and particularly Para 153 in order to point out that
the exceptional situations to the rule that the Governor acts on aid and advice of the
Council of Ministers headed by Chief Minister are the choice of the appointment of the
Chief Minister and the dismissal of the Government which has lost majority in the
House in which cases the Governor acts in his sole discretion. Learned Senior Counsel
then pointed out that in view of Article 361 as well as Article 163(2), the decision of
the Governor pertaining the discretionary orders is not only final but cannot be subject
-matter of challenge in the Court. Reliance was placed on judgment of Madras High
Court in S. Dharmalingam v. His Excellency Governor of State of Tamil Nadu, AIR 1989
Madras 48, in support of the aforesaid submissions. However, he agreed that where
Governor acts on his own in passing discretionary orders, the Government may not be
answerable for such action and in such an eventuality, the Governor would be a
necessary party to such proceedings where the discretionary order of the Governor is
subject-matter of challenge. According to learned Senior Counsel, the judgment in
Bommai's case (AIR 1994 SC 1918) (supra) is not attracted since the Apex Court in
that case was dealing with the case of proclamation under Section 356 of the
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Constitution wherein the satisfaction of the President is based not only on the report
from the Governor but also on the basis of aid and advice from the Council or Ministers
headed by the Prime Minister and other relevant material which may be available.
Even in such cases, the Apex Court has held in Bommai's case
Page: 62
(supra) that only limited judicial review is permissible on grounds of mala fides,
illegality and irrationality. According to the learned Senior Counsel, the impugned
orders of dismissal of the Petitioner and appointment of Respondent No. 3 fall within
the area of exclusive discretion of the Governor which are not subject to Judicial review
in view of Article 361 as well as under Article 163(2) of the Constitution and the
immunity thereunder in respect of actions within the sole discretion of the Governor is
absolute. He further submitted that the subjective discretion exercised by the
Governor is also not justiciable for the want of judicially manageable standards. The
Petition should, therefore, be dismissed as not maintainable.
30. Learned Senior Advocate Shri Sanghi, who appeared on behalf of the Governor
of Goa, stated that he adopts the arguments advanced by the learned Senior Counsel
Shri Ashok Dessai and, in addition, submitted that the Petition is not maintainable
since the Governor is not answerable to any Court in respect of exercise and
performance of powers and duties of his Office or for any act done or purported to be
done by him in the exercise and performance of those powers and duties and in
respect of Such actions the aggrieved party is not left without any remedy but
appropriate proceedings against the Government of a State can be brought by the
aggrieved person. After placing reliance on Article 163(2) of the Constitution, he has
also pointed out that orders passed in his discretion by the Governor are not only final
but the validity of anything done by the Governor cannot be called in question on the
ground that he ought or ought not to have acted in his discretion. According to him,
no fetters can be put on the discretion of the Govern nor on the choice and dismissal
of the Chief Minister and if the choice is not correct there are inbuilt safeguards like
floor test. He also placed reliance on the judgment of Madras High Court in S.
Dharmalingam v. His Excellency Governor of State of Tamil Nadu (AIR 1989 Madras
48) (supra) wherein it was held that the immunity of the Governor with regard to
action pertaining to his sole discretion is absolute and beyond the writ jurisdiction of
the High Court. Reliance was also placed by him on A.K. Kaul v. Union of India, AIR
1995 SC 1403, in support of his submission that the matter in question would not be
justiciable due to want of judicially manageable standards. On the question of
prorogation of the House by the Governor, reliance was placed on State of Punjab v.
Satya Pal Dang, AIR 1969 SC 903.
31. It was next contended by learned Senior Counsel for the Governor of Goa that
the Petition is not maintainable even on grounds of mala fides alleged in the Petition
which are based upon inferences drawn by the Petitioner without any basis
whatsoever. Nevertheless, he insisted that even if this Court holds that the Petition is
not maintainable on grounds of mala fides, the Court should deal with the allegations
of mala fides, since it affects the Institution as such. In this connection, it was pointed
out that the Governor of Goa ought not to have been made a party to the Writ Petition.
However, without waiving his constitutional immunity, the Governor of Goa, Out of
deference to this Court, had permitted his Secretary Shri Dharmendra Sharma to place
relevant documents, facts and circumstances of the matter and also to refute the
incorrect and baseless allegations of mala fides contained in the Petition. He had
argued at length that the Governor of Goa had acted in transparent and bona fide
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-
manner as would be apparent from the Affidavit of the Secretary to the Governor. It
was also pointed out by the learned Senior Counsel that no relief has been sought with
reference to prorogation and the Assembly had been prorogued on account of
transaction of all business which was before the Assembly and in view of the political
scenario. He also pointed out that writ of Certiorari would not lie and no writ of Quo
Warranto has been sought.
32. Learned Senior Counsel Shri S.K. Kakodkar, appearing on behalf of Respondent
No. 2, urged that Article 361 read with Article 163(2) confer total immunity and do not
admit of any exception as to the answerability of the Governor in respect of acts which
fall within the sole discretion of the Governor. According to him, no judicial review of
the impugned Orders is permissible and in support of this submission, reliance has
been placed on K.A. Mathialagan v. Governor of Tamil Nadu, AIR 1973 Mad 198 and
Mahabir Prasad Sharma v. Prafulla Chandra Ghose, AIR 1969 Cal 198. On the question
of mala fides, it is submitted by him that the mala fides have not been pleaded on
facts but only as grounds and as such the same cannot be looked
Page: 63
into.
33. Learned Senior Counsel, Shri Parasaran, in reply urged that all rulings which are
quoted in S. Dharmalingam v. His Excellency Governor of State of Tamil Nadu, AIR
1989 Madras 48, deal with cases where no mala fides had been alleged. According to
learned Senior Counsel there cannot be any immunity whatsoever for mala fide actions
of the Governor performed under the Constitution be it discretionary or on the aid and
advice of the council of Ministers. After placing reliance on Shivajirao Nilangekar Patil
v. Dr. Mahesh Madhav Gosavi, AIR 1987 SC 294, it was urged that Caesar's wife must
be above suspicion and that the Court cannot be oblivious that there has been steady
decline of public standards or public morals and public morale. Relying upon
Halsbury's Laws of England it was urged, that the exercise of statutory power is invalid
unless the repository of the power has acted honestly and in good faith. In this
connection reliance was also placed on S. Partap Singh v. State of Punjab, AIR 1964
SC 72, wherein the dictum of Lord Lindley in General Assembly of the Free Church of
Scotland v. Overtoun, 1904 AC 515, was quoted that the power shall be used bona
fidely for the purpose for which they are conferred. Shri Parasaran also referred to
some passages from Sarkaria Commission Report on Centre State Relations on the
question of role, of Governor, choice of C.M. dismissal of C.M. and prorogation.
Reliance was also placed on P.V. Narashimha Rao v. State, (1998) 4 SCC 626 : (AIR
1998 SC 2120) which deals with the question of immunity under Article 105(2) of M.
Ps. liability to any proceeding in any Court in respect of anything said or any vote
given in the Parliament.
34. In further reply it was urged by learned Senior Counsel Shri Sanghi that in P.V.
Narashimha Rao v. State (AIR 1998 SC 2120) (supra) the Apex Court has held that
the alleged bribe takers are entitled to immunity as the alleged conspiracy and
acceptance of bribe being ‘in respect’ or had nexus with vote against no confidence
motion. But the M. Ps. who despite having received the bribes pursuant to the
conspiracy had abstained from voting, would not be entitled to such immunity since
protection under Article 105(2) must relate to vote actually given. According to him,
this ruling even if attracted, would not in any manner help the petitioner.
35. The moot question to be determined therefore is whether the petition is
maintainable in the light of the provisions contained in Articles 361 and 163 of the
Constitution.
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-
Article 361(1) reads as under:—

“The President, or the Governor or Rajpramukh of a State, shall not be answerable
to any Court for the exercise and performance of the powers and duties of his office
or for any act done or purporting to be done by him in the exercise and performance
of those powers and duties:
Provided that the conduct of the President may be brought under review by any
Court, tribunal or body appointed or designated by either House of Parliament for
the investigation of a charge under Article 61:
Provided further that nothing in this clause shall be construed as restricting the
right of any person to bring appropriate proceedings against the Government of
India or the Government of a State.”
Article 163 reads as under:—
“163. Council of Ministers to aid and advise Governor,— (1) There shall be a Council
of Ministers with the Chief Minister at the head to aid and advise the Governor in
the exercise of his function 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, advice was tendered by Ministers to
Governor shall not be inquired into any Court.”
Under Article 154 the executive power of the State vests in the Governor and is
exercised by him either directly or through officers subordinate to him in accordance
with the Constitution. Article 163 provides for exercise of functions which are
performed by the Governor on the aid and advise of the council of Ministers with the
Chief Minister at the head and besides that functions which are exercised by the
Governor under
Page: 64
the Constitution or any of them in his discretion. The functions which the Governor is
required to perform in his discretion are independent of aid and advice of the Council
of Ministers. Broadly speaking, it cannot be said that there are functions which the
Governor performs on the aid and advice of the Council of Ministers and other
functions which he performs in his discretion without the aid and advice of the Council
of Ministers. Article 163(2) provides for finality to the decision of the Governor taken in
his discretion and the validity of anything done by the Governor in this regard shall not
be called in question on the ground that he ought or ought not to have acted in his
discretion. Article 361(1) provides that the President or the Governor or Rajpramukh of
a State shall not be answerable to any Court for the exercise and performance of
powers and duties of his office or for any act done or purported to be done by him in
the exercise and performance of powers and duties. The second proviso to Article 361
(1) provides that in respect of such actions of the President or the Governor
appropriate proceedings can be instituted by any person whose right is affected
against the Government of India or Government of a State.
36. The maintainability of the petition is required to be examined after taking into
account the nature of functions which the Governor exercises under the Constitution.
The functions performed by the Governor can be broadly classified under four
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-
categories as has been rightly submitted by learned Senior Counsel Shri Ashok Dessai
in respect of which there appears to be no difference of opinion on the part of any of
the learned counsel appearing in the matter except for (iv)th category. The four
categories are enumerated in Para 29 of this Judgment.
37. The impugned orders with which we are concerned fall in the last category
wherein the Governor exercises power of appointment and dismissal of a Chief Minister
in his sole discretion. The Apex Court in Shamsher Singh v. State of Punjab, AIR 1974
SC 2192 has laid down in paras 88 and 153 as under:—
“88. For the foregoing reasons we hold that the President as well as the Governor
acts on the aid and advice of the Council of Ministers in executive action and is not
required by the Constitution to act personally without the aid and advice of the
Council of Ministers or against the aid and advice of the Council of Ministers. Where
the Governor has any discretion the Governor acts on his own judgment…………”
“153. We declare the law of this branch of our Constitution to be that the President
and Governor, custodians of all executive and other powers under various Articles
shall, by virtue of these provisions, exercise their formal constitutional powers only
upon and in accordance with the advice of their Ministers save in a few well-known
exceptional situations. Without being dogmatic or exhaustive, these situations
relate to (a) the choice of Prime Minister (Chief Minister), restricted though this
choice is by the paramount consideration that he should command a majority in the
House; (b) the dismissal of a government which has lost its majority in the House
but refuses to quit office;……………………”
Thus, from the above it is clear that the Governor for the purpose of appointment of
the Chief Minister and for dismissal of the Government acts in his sole discretion and
this discretion is restricted by the paramount consideration of command of majority in
the House. The Apex Court in R.L.K. Jain v. Union of India, AIR 1993 SC 1769, has in
para 56 laid down that the President while exercising the executive power under
Article 73 read with Article 53, discharges such of these powers which are exclusively
conferred to his individual discretion like appointing the Prime Minister under Article
75 are not open to judicial review. Likewise, the appointment of Chief Minister under
Article 164 is made on the sole discretion of the Governor and would therefore not be
open to judicial review. In fact, various High Courts have taken the view that when
certain functions are performed by the Governor under Article 163, in the exercise of
his sole discretion, the immunity of the Governor is absolute and beyond the writ
jurisdiction of the High Court. He shall therefore briefly refer to the view taken by
various High Courts in this respect.
38. The Madras High Court in S. Dharmalingam v. His Excellency Governor of State
of Tamil Nadu (AIR 1989 Madras 48) (supra), was dealing with the case of
appointment of Chief Minister, which was challenged. After taking into account the
scheme of Chapter II, Part VI of the Constitution, the question which arose before the
Madras High Court was whether having regard to the averments in the Affidavit, the
Governor could be called upon to answer to
Page: 65
arrived at that satisfaction. The power exercise by the Governor was examined and
classified in three categories, namely, (i) the executive power in accordance with the
provisions of the Constitution; (ii) the power exercise by him on the aid and advice of
the Council of Ministers headed by the Chief Minister and (iii) sole discretion. It was
found that in the appointment of the Chief Minister the power which came to be
exercised by the Governor was wholly in his discretion and the Court could not
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
interfere in the matter relating to discretion. The Madras High Court placed reliance on
a judgment of the Calcutta High Court in Madan Murari Verma v. Choudhuri Charan
Singh, AIR 1980 Cal 95, wherein Sabyasachi Mukharji, J., as he then was, had held
that in the appointment of Prime Minister, the Court could not sit in judgment on the
political assessment of the President. It was held that in making a choice of the Prime
Minister, the President has to act in his discretion and the President is not fettered in
his choice except by his own assessment. Whether he was politically so justified or not
is not a matter for this Court to determine.
39. The Madras High Court had also placed reliance on the ruling of the Apex Court
in Samsher Singh v. State of Punjab (AIR 1974 SC 2192) (supra) and, particularly,
Para 153 which we have already quoted in the earlier part of this Judgment. After
reviewing the case law and other authorities on the subject, the Madras High Court
had come to the following conclusion:—
“Certain powers are available to the Governor under Art. 163, which he could
exercise in his sole discretion. With regard to the action pertaining to his sole
discretion, the immunity of the Governor is absolute and beyond even the writ
jurisdiction of the High Court. The power of the Governor with regard to the
appointment of the Chief Minister is a power which falls in his sole discretion and
therefore the Court cannot call in question the same.”
40. In an earlier Judgment of the Madras High Court in G. Vasantha Pai v. C.K.
Ramaswamy, AIR 1978 Madras 342, it has been laid down:—
“A combined reading of Arts. 154, 163 and 361(1) would show that the immunity
against answerability to any Court is in respect of the functions exercised by the
Governor/qua-Governor and those functions in respect of which he is bound to act
on the aid and advice of the Council of Ministers, or a function which he could
exercise in his discretion.”
41. The Calcutta High Court in Mahabir Prasad Sharma v. Prafulla Chandra Ghose
(AIR 1969 Cal 198) (supra), while dealing with the power of Governor to appoint the
Chief Minister has laid down that the Governor in making the appointment of the Chief
Minister under Article 164(1) of the Constitution acts in his sole discretion and the
exercise of his discretion by the Governor cannot be called in question in writ
proceedings in the High Court. It has been further laid down therein that if a Council
of Ministers refuses to vacate the Office of Ministers, even after a motion of no
confidence has been passed against it in the Legislative Assembly of the State, it will
then be for the Governor to withdraw the pleasure during which the Council of
Ministers hold office.
41A. (Refer to pages 38-A and 38-B).
42. A Full Bench of the Madras High Court in K.A. Mathialagan v. Governor of Tamil
Nadu (AIR 1973 Mad 198) (supra), after reviewing the case law has laid down that the
exception in Article 163(1) has reference only to those functions in which the Governor
is.
42A. The Gauhati High Court in Jogendra Nath Hazarika v. State of Assam, AIR
1982 Gauhati 25, has held that the pleasure of the Governor is absolute, unrestricted
and unfettered and cannot be questioned in Court. The following observations of the
Gauhati High Court are worth taking note of:—
“Article 164(1) clearly provides that the Ministers hold office during the pleasure of
the Governor. The exercise of the pleasure has not been fettered by any condition or
constriction or restriction. The Governor has wide and large powers in these
matters. Withdrawal of pleasure is entirely in the discretion of the Governor and the
Governor alone. Art. 164(2) which provides that the Ministers shall be collectively
responsible to the Assembly does not in any way fetter or construct his power to
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-
withdraw pleasure while the Ministers hold office. Art. 164(2) expresses that the
Council of Ministers is answerable to the Assembly. A majority of the members of
the Assembly can express its want of confidence in the Ministry, and, that is the
limit to which the Assembly can go. It has no power to dismiss or remove the
Council of Ministers from the offices.
Page: 66
The power of removal or withdrawal of pleasure is entirely and exclusively that of the
Governor. The repository of power to appoint Chief Minister and the Council of
Ministers or to withdraw the pleasure contemplated under Art. 164(1) and/or dismissal
of the Ministry are exclusive pleasure-cum-discretion of the Governor. There is no
limitation or condition of the unfettered pleasure prescribed in Article 164(1). It
follows, therefore, that the right of the Governor to withdraw pleasure, during which
the Ministry hold office, is absolute, unrestricted and unfettered. There is no manner or
method of withdrawal of his pleasure. There is nothing that it should be printed or
published in the official gazette.
Under Art. 163(2) the exercise of the discretion in withdrawing the pleasure is a
matter which is a prohibited area for the court. The exercise of the function of the
governor under Art. 163(1) that is, appointment and/or dismissal or withdrawal of
pleasure or any decision of the Governor in connection therewith exercised in his
discretion, have been made final. When the Governor replaces the old ministry by a
new one, no hearing to earlier Chief Minister is contemplated before appointment of
new Chief Minister as loss of confidence is based on subjective satisfaction,
expressly required to use his own discretion. The Full Bench has further laid down
that though the Governor cannot be personally, as a party or otherwise, called upon
to answer a charge of bad faith with reference to his official act, the validity of his
act is open to challenge on that ground in the Court in view of second proviso to
Article 361(1) of the Constitution. These observations were made by the Full Bench
while dealing with a case of prorogation of the State Assembly wherein mala fides
were attributed against the Governor while ordering prorogation of the State
Assembly. It was pointed out that in no Judgment it has been held that where the
bona fides of the Governor are questioned, he can personally be called to enter his
defence. Accordingly, the Full Bench came to the conclusion that the immunity
extends to cases where bona fides are questioned or mala fides are alleged. In this
connection, it was observed as under:—
“Neither the Supreme Court in this case, nor in the other cases we referred to of the
High Courts, was it held that the personal immunity afforded by Art. 361(1) to the
Governor did not avail where his bona fides were questioned. They have not held
that where his bona fides are questioned, he can personally be called to enter his
defence. In our opinion, his personal immunity extends to such a case as well.”
43. While dealing with Full Bench judgment of the Madras High Court, the noted
Constitutional Expert H.M. Seervai in “Constitutional Law of India”, 4th Edition,
Volume I, at page 2070, Note 18.79, has opined that the view taken by Full Bench
that in respect of his official acts, the Governor is not answerable to the Court even in
respect of a charge of mala fides is correct.
44. We concur with this position. We also agree with the learned author that in
such eventuality Governor cannot be said to be under duty to deal with allegations of
mala fides in order to assist the Court, which in effect would mean that he is
answerable to the Court.
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-
45. The Governor in terms of Article 156 of the Constitution holds office during the
pleasure of the President. Any mala fide actions of the Governor may, therefore,
conceivably be gone into by the President. Another effective check is that the Ministry
will fall if it fails to command a majority in the Legislature Assembly.
46. Thus, the position in law is clear that the Governor, while taking decisions in his
sole discretion, enjoys immunity under Article 361 and the discretion exercised by him
in the performance of such functions is final in terms of Article 163(2). The position
insofar as the dismissal of the Chief Minister is concerned, would be the same, since
when the Governor acts in such a matter, he acts in his sole discretion. In both the
situations, namely, the appointment of the Chief Minister and the dismissal of the
Chief Minister, the Governor is the best judge of the situation and he alone is in
possession of the relevant information and material on the basis of which he acts. The
result, therefore, would be that such actions cannot be subjected to judicial scrutiny at
all.
47. In our opinion, the ruling of the Apex Court in Bommai's case (AIR 1994 SC
1918) (supra) would not be attracted to the fact situation in the case before us.
Bommai's case (supra) was with reference to the challenge to the Proclamation under
Section 356. In such cases, the President arrives at his satisfaction on the basis of the
Page: 67
report of the Governor and on the aid and advice of the Union Council of Ministers
headed by the Prime Minister due to which the satisfaction arrived at on the basis of
such material is subject to judicial review on limited parameters of legal mala fides,
irrationality and illegality. It has been held in Bommai's case (supra) that the power
conferred under Article 356 is a conditional power; it is not an absolute power to be
exercised in the discretion of the President. The judgment of the Apex Court in A.K.
Kaul v. Union of India (AIR 1995 SC 1403) (supra) is in relation to dispensation of
enquiry under Article 311 of the Constitution where also action is based upon the
material placed before the Authority and action is not taken in the sole discretion of
the Authority. Insofar as the impugned Orders before us are concerned, the same are
based on the sole discretion of the Governor.
48. For the aforesaid reasons, we hold that the Petition is not maintainable in view
of Articles 361 and 163(2) read with 164(1) of the Constitution of India as the
impugned Orders Exhibit P1 and Exhibit P16 cannot be subjected to judicial scrutiny at
all. In this view of the matter, it is not necessary to go into the allegation of mala
fides. The result is that the Petition is dismissed and Rule is discharged. In the facts
and circumstances, there shall be no order as to costs.
Petition dismissed.
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Page 1 Sunday, September 05, 2021

Bombay High Court

Pratapsingh Raojirao Rane … Petitioner;

members under para 2 of the Tenth Schedule of the Constitution of India.

of the constitutional provision including that of Article 361 of the Constitution,

Governor in dismissing the Petitioner as Chief Minister as well as appointing the

Article 361(1) reads as under:—

© EBC Publishing Pvt.Ltd., Lucknow.

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