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Judgment PIL (L) 10300.2021
Judgment PIL (L) 10300.2021
Judgment PIL (L) 10300.2021
2021
pvr
INTRODUCTION
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reproduced hereunder:
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(1) ***
(2) ***
(3) Of the total number of members of the Legislative Council
of a State—
(a) as nearly as may be, one-third shall be elected by
electorates consisting of members of municipalities, district
boards and such other local authorities in the State as
Parliament may by law specify;
(b) as nearly as may be, one-twelfth shall be elected by
electorates consisting of persons residing in the State who
have been for at least three years graduates of any university
in the territory of India or have been for at least three years in
possession of qualifications prescribed by or under any law
made by Parliament as equivalent to that of a graduate of any
such university;
(c) as nearly as may be, one-twelfth shall be elected by
electorates consisting of persons who have been for at least
three years engaged in teaching in such educational
institutions within the State, not lower in standard than that of
a secondary school, as may be prescribed by or under any law
made by Parliament;
(d) as nearly as may be, one-third shall be elected by the
members of the Legislative Assembly of the State from
amongst persons who are not members of the Assembly;
(e) the remainder shall be nominated by the Governor in
accordance with the provisions of clause (5).
(4) ***
(5) The members to be nominated by the Governor under sub-
clause (e) of clause (3) shall consist of persons having special
knowledge or practical experience in respect of such matters
as the following, namely:—
Literature, science, art, co-operative movement and social
service.”
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by efflux of time. By June 16, 2020 all the seats were vacant.
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Governor has not acted on such advice with the result that
completed.
“PRAYERS:
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PETITIONER’S CONTENTIONS
10 and the Third Schedule of the 1950 Act read with clause (5)
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vires.
& ors. (VI) vs. Union of India & anr., reported in (2006) 2
the same time, it was noted that the immunity granted to the
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and fancies of the Governor, and that the Supreme Court cannot
act is wholly outside the scope of the power, and immunity thus
of the decision was then placed for the proposition that personal
be.
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Mookerjee & ors., reported in AIR 1952 Calcutta 799, and the
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petitioner would not press for relief in terms of prayer (a) but
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per clauses (3) and (5) of Article 171] form part of the
14. Next, Mr. Dada invited the attention of this Court to clause
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the former Chief Justice of India then was), Mr. Dada refrained
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compliance with the aforesaid order. This Court had the benefit
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First, Mr. Singh referred to W.P. (C) No. 176 of 2021 [Dr.
relief:
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the Hon’ble the Chief Justice of India, W.P. (C) No. 176 of 2021
was summarily rejected on the ground that the Court was not
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Moti Lal Jute Mills & anr., reported in AIR 1960 SC 378,
reported in AIR 1965 Pat 321, In re: ICICI Bank Ltd. & ors.,
483.
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and others, reported in 2015 Indlaw ALL 404. Mr. Singh also
reported in 2010 SCC OnLine All 573, wherein it has been held
as under:
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25. The decision in State of Gujarat & anr. vs. Justice R.A.
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26. This Court has also heard Mr. Singh submit, in regard to
that the petitioner has not identified any provision requiring the
laid.
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be dismissed.
ARGUMENTS IN REJOINDER
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THE QUESTIONS
29. The parties have been heard, with their consent, at the
Singh has not contended that the writ petition does not satisfy
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objection.
32. Dismissal of W.P. (C) No. 176 of 2021 by the order dated
being violated”. The thrust of the petitioner in W.P. (C) No. 176
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such prayers were clearly not maintainable and hence did not
the Court and not the petitioner. In the further considered view
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complete, would spring into action and bar the Court to either
clauses (1) and (2) of Article 166 of the Constitution, would not
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been the law in this country that a Public Interest Litigation can
the result that the doors of justice are practically not open for
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the peculiar facts of each individual case and no hard and fast
rule in this behalf can be laid down. While exercising the power
remind itself that it is the ‘sentinel on the qui vive’, since it the
Bhagwati,J. (as the former Chief Justice of India then was) that
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by the Supreme Court during the last four decades on the scope
information has been laid before this Court. The affidavit of the
State says that no response from the office of the Governor has
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sufficient interest. The law is well settled that if no one can have
would suffer but the people not having any judicial remedy to
redress such public injury may turn to the street and in that
disrespect for the rule of law. These are the reasons for which
43. The decision in Rai Bahadur Hurdut Roy Moti Lal Jute
no application here.
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Supreme Court held that when the interest of the parties can
apart from the Supreme Court, this Court is the only other
freeze the reserved symbols for twenty years and to stay the
relief since the petitioner was silent about any nexus with the
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made while negating the contention of Mr. Singh that either the
whether he acts under such provision with the aid and advice
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Full Bench judgment of the Allahabad High Court, held that the
47. While this Court would now tread the path to answer the
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cited by Mr. Singh, have considered Article 171 and the Patna
48. Before the legal issues are discussed and the questions
State. Article 154 ordains that the executive power of the State
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protect and defend the Constitution and the law and to devote
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49. The next relevant article is Article 166 falling under the
thus:-
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Legislative Councils’.
framed the RoB, which was brought into force from July 1,
thus:
“Rule 9
All cases referred to in the Second Schedule shall
be brought before the Council-
(i) by the direction of the Governor under clause
(c) of Article 167;
(ii) by the direction of -
(a) the Chief Minister ; or
(b) the Minister-in-charge of the case with the
consent of the Chief Minister:
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Rule 12
All orders or instruments made or executed by on
behalf of the Government of the State shall be
expressed to be made by or by order of or
executed in the name of the Governor.
Rule 15
These Rules may to such extent as necessary be
supplemented by instructions to be issued by the
Governor on the advice of the Chief Minister.”
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15 (1) (x)
Proposal to nominate members of the Legislative
Council under Article 171(3)(e);
the RoB, this Court may observe that what falls for
conferred under clauses (3)(e) and (5) of Article 171 read with
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(5) of such article. Once clause (5) read with section 10 of the
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Article 171 read with section 10 of the 1950 Act. For such
Article 163 would come into play, which provides that the
Council of Ministers would aid and advice the Governor with the
provided by clause (1) of Article 163, namely, that such aid and
powers under clauses (3)(e) and (5) of Article 171 read with
pronouncements.
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authorities.
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order and message of the Governor, without the aid and advice
appellants.
Rules …”; and that, the Governor was not obliged, in the
issued the above order at his own, without any aid and advice.
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they are distinct and different from the questions that this Court
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orders were violative of Article 163 read with Article 174 of the
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ruled that:
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utility.
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his discretion and against the aid and advice of the Council of
case had been made out against them. The Governor then
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facie case for prosecution had been made out. The Governor,
was further held that the doctrine of bias could not be applied
enable the Governor to act “in his discretion”. The two letters
patent appeals carried from the orders of the writ court were
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Hon’ble S.N. Variava, J. (as His Lordship then was) noticed the
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disentitles itself.
made:
(supra).
118, and 128 of His Lordship’s judgment. This Court has not
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Establishment (supra).
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conflict of interest.
66. However, as noted above, the factual matrix and the legal
RoB and the Instructions forming part of it, and laying down
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question.
value.
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under consideration, does not lay down the law that only in
the Constitution has held that the Governor can act on his own
Clause (3) read with clause (5) of Article 171 could have been
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given its due weight. There can be no dispute that proper care
gains.
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debates would reveal that what is Article 171 now, was draft
the members [Prof. K.T. Shah] expressed that the Governor will
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political party.
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case may be, with all executive actions that the Government of
RoB, may proceed to take executive action and any such action
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of the Governor.
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and the Third Schedule read with clauses (3)(e) and (5) of
name(s).
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for valid reason(s) and to send back such name(s) for further
of the RoB lays down that all cases referred to in the Second
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below:
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for this Court to hold that the Governor does have a power,
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79. The above view taken by this Court is in accord with the
Council.
followed the law laid down by the Calcutta High Court. Also,
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persuading this Court to take the view that the Governor has
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Governor can maintain silence despite the fact that more than
eight months have passed since receipt of the letter of the Chief
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they are adorning, ought to stand tall and, while rising above
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made known for ironing out such differences. Given the stand
since the RoB binds both the Governor and the Government.
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circumstances that this Court is of the clear view that the duty
of the Governor to speak and to let the Chief Minister know his
of the 1950 Act read with clauses (3)(e) and (5) of Article 171
depend on the facts of each case. This is the law laid down in
but this Court would infer that the Governor must have taken
other.
CONCLUSION:
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undue delay.
expresses hope and trust that things will be set right at an early
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SALUNKE
JV
Digitally signed
by SALUNKE J V
Date: 2021.08.13
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
20:31:49 +0530
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