D C WADHWA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THESE petitions under Article 32 of the Constitution raise a short question of great constitutional importance relating to the power of the Governor under Article 213 of the Constitution to re-promulgate ordinances from time to time without getting them replaced by Acts of the Legislature. The question is, can the Governor go on re-promulgating ordinances for an indefinite .period of time and thus take over to himself the power of the Legislature to legislate though that power is conferred on him under Article 213 only for the purpose of 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 :

(2.) 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 in 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 a deep and profound study of the practice which is being followed in the State of Bihar of promulgating and re-promulgating ordinances from time to time without enacting them into Acts of the Legislature. Petitioner No. 2 is an occupancy Raiyat of village Anigara, Kunti Police Station in the district of Ranchi. He grows forest produce in his Raiyat land. Clause (5) of the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983 imposes restriction on the sale of specified forest produce and it further created State monopoly for sale and purchase of such forest produce. Clause (7) of this ordinance conferred power on the State Government to fix the price at which the specified forest produce may be purchased by it or by any authorised forest officer or agent from the growers of such forest produce. The effect of these provisions in the Bihar Forest Produce (Regulations of Trade) Third Ordinance was that the petitioner No. 2 was prevented from selling his forest produce to any purchaser other than those mentioned in the ordinance and his right to dispose of the forest produce was adversely affected by these provisions and he was therefore interested in challenging the constitutional validity of this ordinance. Petitioner No. 3 is a student studying in Intermediate (Science) Class in A.N. College, Patna. He was affected by the Bihar Intermediate Education Council Third Ordinance. It is not necessary to refer to the provisions of this ordinance since it could not be seriously disputed on behalf of the respondents that the provisions of this ordinance affected, curtailed and/or regulated the rights of petitioner No. 3 or at least had the potential of doing so and petitioner No. 3 therefore challenged the constitutional validity of this ordinance. Similarly petitioner No. 4 was aggrieved by the Bihar Brick Supply (Control) Third Ordinance because he is the proprietor of South Bihar Agency, Patna, a brick manufacturing concern operating under a licence issued by the Mining and the Industry Department of the Government of Bihar and the provisions of this ordinance empowering the State Government to control and regulate the manufacture, distribution, transport, disposal and consumption of bricks, as also the price at which the bricks may be bought or sold affected petitioner No. 4 and he accordingly joined the writ petitioners and challenged the constitutional validity of this ordinance.

(3.) WE shall now proceed to state how the Governor in the State of Bihar has been indulging in the practice of re-promulgating the ordinances from time to time so as to keep them alive for an indefinite period of time. Petitioner No. 1 carried out thorough and detailed research in the matter of re-promulgation of ordinances by the Governor of Bihar from time to time and the result of this research was compiled by him and published in a book entitled "Re-promulgation of Ordinances: Fraud on the Constitution of India." Some of the relevant extracts from this book have been annexed to the writ petition indicating the number of ordinances re-promulgated repeatedly by the Governor of Bihar. It is clear on a perusal of these extracts that the Governor of Bihar promulgated 256 ordinances between 1967 and 1981 and all those ordinances were kept alive for periods ranging between One to 14 years by re-promulgation from time to time. Out of these 256 ordinances 69 were re-promulgated several times and kept alive with the prior permission of the President of India. The following table would indicate the categorisation of these 256 ordinances by reference to their life groups : <FRM>JUDGEMENT_378_1_1987Html1.htm</FRM>