AI Drafter 
TaxTMI 
TaxTMI 
1986 (12) TMI 381
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....enabling him to take immediate action at a time when the legislative assembly of the State is not in session or when in a case where there is a legislative council in the State, both Houses of Legislature are not in session. The facts giving rise to these writ petitions are disturbing and we may briefly state them as follows: These writ petitions have been filed by four petitioners challenging the validity of the practice of the State of Bihar in promulgating and re-promulgating ordinances on a massive scale and in particular they have challenged the constitutional validity of three different ordinances issued by the Governor of Bihar, namely, (i) Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983; (ii) The Bihar Intermediate Education Council Third Ordinance, 1983; and (iii) The Bihar Bricks Supply (Control) Third Ordinance, 1983. Petitioner No. 1 is a professor of economics is the Gokhale Institute of Politics and Economics, Pune and he has spent a number of years in studying the constitutional functioning of Indian politics. He is deeply interested in the preservation and promotion of constitutional functioning of the administration in the country. He has made ....
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....ity of this ordinance. It was contended on behalf of the respondents that the petitioners had no locus standi to maintain this writ petition since out of the three ordinances challenged on behalf of the petitioners, two of them, namely, Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983 and the Bihar Bricks Supply (Control) Third Ordinance, 1983 had already lapsed and their provisions were enacted in Acts of the Legislature and so far as the third ordinance, namely, The Bihar Intermediate Education Council Third Ordinance was concerned, a legislative proposal was already introduced for enacting its provisions into an Act. The respondents also contended that the petitioners are not entitled to challenge the practice prevalent in the State of Bihar of repromulgating ordinances from time to time since they were merely outsiders who had no legal interest to challenge the validity of this practice. We do not think this preliminary objection raised on behalf of the respondents is well-founded. It is undoubtedly true that the provisions of two out of the three ordinances challenged in these writ petitions were enacted into Acts of the Legislature but that happened only d....
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....e Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is inflagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice. We must therefore reject the preliminary contention raised on behalf of the respondents challenging the locus of the petitioners to maintain these writ petitions. The respondents then contended that in any event the question raised before the Court in these writ petitions was academic in nature and should not be adjudicated upon by the Court. But this contention urged on behalf of the respondents is also without force since the Bihar Intermediate Education Council Third Ordinance is still in force and it cannot therefore be said to be academic to examine the challenge to its constitutional validity. Moreover the question raised in these writ petitions is of highest constitutional importance as it does the power of th....
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....y of repromulgation. The following table indicates in the case of each ordinance, the title of the ordinance, the date of first promulgation and the total period for which the ordinance was continued in force by adopting the stratagem of repromulgation: s. No. Name of the Ordinance Date on which First Promulgated Life of the Ordinance 1 2 3 4 Year Months Days i. The Bihar Sugarcane (Regulation of Supply and Purchase) Ordinance 1968 (Ordinance No. 3 of 1968) 13.11.1968 13 11 19 ii. The Bihar Panchayati Raj (Amending and Validating) Ordinance No. 3 of 1970) 14.8.1970 11 4 18 It will thus be seen that the power to promulgate ordinances was used by the Government of Bihar on a large scale and after the session of the State Legislature was prorogued, the same ordinances which had ceased to operate were repromulgated containing substantially the same provisions almost in a routine manner. This would be clear from the fact that on 26th August, 1973 the Governor of Bihar repromulgated 54 ordinances with the same provisions....
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....uncil Third Ordinance is concerned it was initially promulgated in 1982 and after its expiry, it was again repromulgated by the Governor of Bihar four times with the same provisions and it was ultimately allowed to lapse on 6th June, 1985, but then the Bihar Intermediate Education Council Ordinance, 1985, was promulgated which contained almost the same provisions as those contained in the Bihar Intermediate Education Council Third Ordinance. Similarly the Bihar Bricks Supply (Control) Third Ordinance was initially promulgated in 1979 and after its expiry it was repromulgated by the Governor of Bihar from time to time and continued to be in force until 17th May, 1984 when it was replaced by Bihar Act No. 13 of 1984. Thus the Bihar Forest Produce (Regulations of Trade) Third Ordinance continued to be in force for a period of more than six years, the Bihar Intermediate Education Council Third Ordinance remained in force for a period of more than one year, while the Bihar Bricks Supply (Control) Third Ordinance was continued in force for a period of more than five years. The Government of Bihar, it seems, made it a settled practice to go on repromulgating the ordinances from time to....
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....d on 1 1.8.1981 and if they are not repromulgated before the aforesaid date, then all the Ordinances will cease to be in force after 11.8.1981. It is, therefore, requested that the Law Department may be contacted and immediate action be initiated to get all the concerned Ordinances re-promulgated so that they are definitely repromulgated before 11.8.1981. If the old ordinances are repromulgated in their original form without any amendment, then the approval of the Council of Ministers is not necessary. This should be given the top-most priority and necessary action should be taken immediately. Yours faithfully, Sd/Basant Kumar Dubey Special Secretary to Bihar Government. " This circular letter clearly shows beyond doubt that the repromulgation of the ordinances was done on a massive scale in a routine manner without even caring to get the ordinances replaced by Acts of the Legislature or considering whether the circumstances existed which rendered it necessary for the Governor to take immediate action by way of repromulgation of the ordinances. The Government seemed to proceed on the basis that it was not necessary to introduce any legis....
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....r the Constitution is the Legislature and not the Executive but it is possible that when the Legislature is not in Session circumstances may arise which render it necessary to take immediate action and in such a case in order that public interest may not suffer by reason of the inability of the Legislature to make law to deal with the emergent situation, the Governor is vested with the power to promulgate Ordinances. But every Ordinance promulgated by the Governor must be placed before the Legislature and it would 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. The object of this provision is that since the power conferred on the Governor to issue Ordinances is an emergent power exercisable when the Legislature is not in Session, an Ordinance promulgated by the Governor to deal with a situation which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life. Since Article 174 enjoins that the Legislature shall meet at least t....
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....the Legislature and without enacting the provisions of the Ordinance into an Act of the Legislature, repromulgate the Ordinance as soon as the Legislature is prorogued. Of course, there may be a situation where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or the time at the disposal of the Legislature in a particular Session may be short, and in that event, the Governor may legitimately find that it is necessary to repromulgate the Ordinance. Where such is the case, re-promulgation of the Ordinance may not be open to attack. But otherwise, it would be a colourable exercise of power on the part of the Executive to continue an Ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology of repromulgation. It is settled law that a constitutional authority can not do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an Act, such provision cannot....
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....hagat Singh & Ors. v. Empire, AIR 1931 PC 111, Rajararn Bahadur Kamlesh Narain Singh v. Commissioner of Income Tax, AIR 1943 PC 153; Laxmidhar Misra v. Rangalal & Ors., AIR 1950 PC 59 and R.C. Cooper v. Union of India, [1970] 3 SCR 530. We do not see how these decisions could possibly help in the present case. They do not at all deal with the question which we are called upon to decide here. It is true that, according to the decisions of the Privy Council and this Court, the Court cannot examine the question of satisfaction of the Governor in issuing an Ordinance, but the question in the present case does not raise any controversy in regard to the satisfaction of the Governor. The only question is whether the Governor has power to repromulgate the same Ordinance successively without bringing it before the Legislature. That clearly the Governor cannot do. He cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him. It is significant to note that so far as the President of India is concerned, though he has the same power of issuing an Ordinance under Article 1....
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....ihar State Housing 14.9.1971 10 3 17 Board Ordinance, 1971 (Ordinance No. 101 of 1971) xi. The Bihar Co-operative 7.10.1971 10 2 25 Societies (Second Amend- ment) Ordinance, 1971 (Ordinance No. 103 of 1971) xii. The Bihar Agricultural 14.12.1972 Produce Markets (Amend- 9 10 16 ment) Ordinance, 1972 (Ordinance No. 6 of 1972) xiii. The Bihar Medical Educa- tional Institutions (Regulation and Control) Ordinance, 1972 (Ordinance No. 69 of 1972) 14.5.1972 9 7 18 Document 2 xiv. XV. The Rajendra Agricultural University (Amendment) Ordinance, 1973 (Ordinance No. 2 of 1973) The Bihar Panchayati Raj (Validating) Ordinance 1973 (Ordinance No. 5 of 15.1.1973 8 11 17 22.2.1973 8 10 7 1973) xvi. The Bihar Panchayat 22.2.1973 8 10 7 Samitis and Zilla Parishads (Amending and Validating Ordinance, 1973 (Ordinance No. 6 of 1973) xvii. The Bihar Khadi and 1.10.1973 8 3 0 Village Industries (Amendment) Ordinance, 1973 (Ordinance No. 122 of 1973) 809 xviii. The Motor Vehicles 20.5.1971 7 8 ....