TaxTMI 
TaxTMI 
2001 (3) TMI 976
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....the amendment to the Maharashtra Co-operative Societies Act, 1960 the primary reason being - the entire election programme, including the list of voters stands finalised on June 30, 2000 and the amendment by way of addition to the proviso was effected on 23rd August, 2000: The introduction of the amended proviso being effected subsequent to the finalisation of the voters list, the High Court concluded that basically, the inclusion of the Societies which were eligible on 30th June, 2000 could not be faulted on the basis of the amendment which was brought into force subsequently and they cannot be denied the right to vote and hence the Appeal before this Court. 3. Before adverting to the submissions advanced on the score as above, one factual element ought to be noticed at this juncture to wit: promulgation of an Ordinance being Maharashtra Ordinance No. X of 2001 by the Governor of the State on 27.02.2001 during the short pendency of this appeal. 4. We shall be adverting to the same shortly in detail but before so doing relevant provisions of the Maharashtra Co-operative Societies Act, 1960 [Section 27(3)] together with the amendment to the proviso as effected on 23rd August, ....
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....ive Societies (Amendment) Act, 2000. 6. Mr. V.A. Bobde, the learned Senior Counsel in support of the appeal with his usual eloquence introduced the concept of legislative malice in the matter of promulgation of the Ordinance. Malice in common acceptation, admittedly, means and implies spite or ill will and it is having regard to the common English parlance of the word malice that Mr. Bobde contended that promulgation of the Ordinance is an abuse of the legislative power and process amounting to a fraudulent user thereof and thus the malice. 7. It is in this context Mr. Bobde placed very strong reliance on the statement of objects and reasons for promulgation of the same. In the normal course of events we would not have delved into the same in detail as is being done herein below, but for its significance in the matter under consideration and elaborate submissions thereon, the statement of objects and reasons for promulgation of the Ordinance is noticed herein below:- By inserting proviso to sub-section (3) of section 27 of the Maharashtra Co-operative Societies Act, 1960, by Maharashtra Act No. XL of 2000, provision has been made to give voting rights only to such me....
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....t: the voter list stands prepared and concluded by 30th June, 2000. Mr. Bobde contended that by reason of so-called confusion (as noticed above), the Ordinance stands promulgated as the legislature was not in session by way of a clarificatory order. The submissions apparently, apart from being attractive seems to be of some consequence rendering it an obligation for the Court to delve into the issue in slightly more greater detail. 9. The tenability of the submissions as above, however, would be discussed later in this judgment, but before so doing, we need to recapitulate the law as regards the jurisdiction of the court to assess the question of justiciability of the legislation by one of the wings of the Constitution. Doctrine of separation of powers have been the basic tenet of our constitutional framework since in terms therewith each of the three organs of the State viz., the judiciary, executive and the legislature would be operating on its own spheres and fields. It is to be noted that there has been a catena of cases wherein this judicial reluctance have been noticed and it is now well-settled both in this country and United States of America as well as in United Kingdom....
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....he fact that the effect of those alterations was to be limited to the participants in the January coup and that after these had been dealt with by the judges, the law should revert to its normal state. Such a lack of generality, however, in criminal legislation need not, of itself, involve the judicial function, and their lordships are not prepared to hold that every enactment in this field which can be described as ad hominem and ex post facto must inevitably usurp or infringe the judicial power. Nor do they find it necessary to attempt the almost impossible task of tracing where the line is to be drawn between what will and what will not constitute such an interference. Each case must be decided in the light of its own facts and circumstances, including the true purpose of the legislation, the situation to which it was directed, the existence (where several enactments are impugned) of a common design, and the extent to which the legislation affects, by way of direction or restriction, the discretion or judgment of the judiciary in specific proceedings. It is therefore necessary to consider more closely the nature of the legislation challenged in this appeal. 10. The o....
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....at a conclusion one way or the other. We are not sure whether a question like the one before us would be governed by the rule of burden of proof contained in Section 106 of the Evidence Act, though we are prepared to proceed on the basis that the existence of circumstances which led to the passing of the Ordinance is especially within the knowledge of the executive. But before casting the burden on the executive to establish those circumstances, at least a prima facie case must be made out by the challenger to show that there could not have existed any circumstances necessitating the issuance of the Ordinance. Every casual or passing challenge to the existence of circumstances, which rendered it necessary for the President to take immediate action by issuing an ordinance, will not be enough to shift the burden of proof to the executive to establish those circumstances. Since the petitioners have not laid any acceptable foundation for us to hold that no circumstances existed or could have existed which rendered it necessary for the President to take immediate action by promulgating the impugned Ordinance, we are unable to entertain the contention that the Ordinance is unconstitution....
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....iced above, pertains however to the judicial review of legislation. A large number of decisions have been cited though not noticed above, since the same do not stand to any further assistance at the bar but judicial ad-negation has been the resultant conclusion in all these cases unless of course, there is any violation of any fundamental right and the constitutionality is the issue between the parties as noted above. The political question doctrine has however, to be treated to be a tool for maintenance of governmental order but as noticed above, there is no blanket rule of judicial reluctance since the question arises as to whether the case presents the political question and for this purpose, facts of each case shall have to be considered in its proper perspective so as to assess the situation. This however, opens up a wider debate on to the different issue of Article 123 and 213 and the action is legislative in character. It is not an administrative or executive action but being legislative in nature, it is subject only to constitutional limitations applicable to an ordinary statute. The Ordinance, if, does not infringe the constitutional safeguards, cannot be examined nor the ....
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.... promulgated only after the disposal of the appeal and during the pendency of the matter before this court: The Ordinance, however, has a retrospective operation and coincides with the date of introduction of the amended proviso to Section 27(3) of the Act of 1960. 15. On the wake of the aforesaid, we cannot proceed with the matter any further without however having a close look at the Ordinance as promulgated and in the event of experiencing any difficulty, the Statement of objects can be considered but if it is otherwise, Mr. Bobdes submission would pale into insignificance and thus have to be stamped as wholly untenable. 16. It is on this score however, that Article 213 becomes relevant being the source of power of the Executive to use legislative functions. Article 213 in so far as is material reads as below: 213. (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumsta....
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....Ordinance, there seems to be some substance since what was implicit has been stated to be made explicit by way of clarification according to the plain English meaning of the words used in the statement. This is however on assumption that we need to delve into the matter in such detail. The emergency admittedly cannot thus be said to have occurred in order to have an emergent legislation by exercise of an emergent power of legislation by the Executive. The decision in Wadh was case (supra) has been rather categorical that the Executive cannot by taking resort to an emergency power takeover the law making function of the legislature and in the event, the executive assume such power, the same would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for this, the people would be governed not by the laws made by the Legislature as provided in the Constitution but by laws made by the Executive. We do appreciate such an exposition of law and lend our concurrence thereto in its entirety. The exception however, to the above has also been pointed out in Wadh was case (supra) that in the event of there being too many legislative businesses in a p....
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....sess the intent of the Legislature in the event of there being any confusion, statement of objects and reasons may be looked into and no exception can be taken therefor this is not an indispensable requirement but when faced with an imperative need to appreciate the proper intent of the Legislature, statement may be looked into but not otherwise. The submission of Mr. Bobde thus can only be given credence only in the event of there being any necessity of such a requirement in the facts of the matter under consideration, to wit : some confusion somewhere for assessment of the intent of the Legislature. 20. The proviso for which the clarificatory Ordinance has been promulgated, it appears that the Legislature advisedly used the expression new members. Members have been defined under the State Co-operative Societies Act (Section 2(19) of the Act of 1960) meaning - a person joining in an application for registration of a co-operative society which is subsequently registered or a person duly admitted to membership of his society after registration and includes a nominal associate or sympathizer member. Section 27(3) proviso as noticed above adds an appendage any new before the member....
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....ctuated the step to provide a remedy for the then existing malady. In a. Thangal Kunju Musaliar v. M. Venkitachalam Potti, [1955 (2) SCR 1196 : AIR 1956 SC 246], the Statement of Objects and Reasons was used for judging the reasonableness of a classification made in an enactment to see if it infringed or was contrary to the Constitution. In that decision for determining the question, even affidavit on behalf of the State of the circumstances which prevailed at the time when the law there under consideration had been passed and which necessitated the passing of that law was relied on. It was reiterated in State of West Bengal v. Union of India, [1964 (1) SCR 371 : (AIR 1963 SC 1241) that the Statement and Objects and Reasons accompanying a Bill, when introduced in Parliament, can be used for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. Similarly, in Pannalal Binjraj v. Union of India, [1957 SCR 233 : AIR 1957 SC 397] a challenge to the validity of classification was repelled placing reliance on an affidavit filed on behalf of the Central Board of Revenue disclosing the true object of enacting the impugned prov....
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....nsic material reveals, s.40(3) was intended to be remedial. As far as practicable, s.40(1) and (3) should be construed to promote the objects of the Act. Nevertheless, as I pointed out in Kingston v. Keprose Pty Ltd. [1987 (11) NSWLR 404 at 423], in applying a purposive construction, the function of the court remains one of construction and not legislation. When the express words of a legislative provision are reasonably capable of only one construction and neither the purpose of the provision nor any other provision in the legislation throws doubt on that construction, a court cannot ignore it and substitute a different construction because it furthers the objects of the legislation. ... The circumstances in which recourse can legitimately be had to the extrinsic material Mr. Sackar relied on s 15Ab of the Acts Interpretation Act to urge this Court to examine and take into account the extrinsic material. Section 15AB is entitled Use of extrinsic material in the interpretation of an Act and relevantly provides: (1) Subject to sub-section (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of....