LAXMAN LIMBRAJ RANKHAMB Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In these two writ petitions the Ordinance issued by the Governor viz. the Maharashtra Ordinance No. VIII of 1980 providing for the dissolution of Osmanabad and Parbhani Zilla Parishads, temporary postponement of elections and appointment of Administrator is challenged by the office bearers as well as Councillors of the Osmanabad and Parbhani Zilla Parishads. The main challenge to this Ordinance is based on the legislative competence of the Governor to issue such an Ordinance which provides for postponement of the General Elections to these two Zilla Parishads up to and inclusive 30th June, 1981 i.e. beyond six weeks from the reassembly of the Legislature which is scheduled to assemble on 8th Dec., 1980. The said Ordinance is also challenged on the ground that it is issued in the mala fide exercise of the power conferred upon the Governor by Article 213 of the Constitution of India.

(2.) It is an admitted position that these two Zilla Parishads were constituted some time in the year 1974 and their tenure as prescribed by Section 10 of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 (hereinafter called "the Zilla Parishad Act") expired by end of March 1980. Thereafter the State Government exercised its power under Sub-section (3) of Section 10 of the Zilla Parishad Act and initially extended the period up to 30th June 1980 vide Order dated 24th March, 1980. This period was subsequently extended up to 30th Sept., 1980. Thereafter on 25th September, 1980 the Governor of Maharashtra in exercise of the power conferred upon him under Article 213 of the Constitution of India, promulgated an Ordinance No. VIII of 1980 postponing the elections till 30th June, 1981 as well as for making a provision for appointment of an Administrator. Thus, admittedly the term of office of the Councillors came to an end by the 1st of April, 1980 and under the second proviso to Sub-section (2) of Section 10 of the Zilla Parishad Act it was not open for the Government to extend the term of Councillors beyond six months, and this seems to be the occasion for issuing the impugned Ordinance. It is an admitted position that both the Houses of the Legislature were not in session when the impugned Ordinance was issued. However, it is contended by Mr. Deshmukh as well as Mr. Bhimrao Naik, the learned Counsel appearing for the petitioners that under Article 213 of the Constitution of India and particularly in view of the provisions of Sub-article (2) of the said Article it was not open to the Governor to postpone the elections beyond the expiration of six weeks from the re-assembly of the Legislature which is scheduled to be held on 8th December 1980. Thus, according to the learned Counsel the postponement of the elections up to and inclusive of 30th June, 1981 is ultra vires the powers conferred upon the Governor under Article 213 of the Constitution of India, which only confers a power upon the Governor to issue an Ordinance to make a transitory provision when both the Houses of the Legislature are not in session.

(3.) It is not possible for us to accept this contention. Article 213(1) of the Constitution of India confers a power upon the Governor to promulgate an Ordinance during the recess of the Legislature when he is satisfied that circumstances exist which render it necessary for him to take immediate action. The power conferred upon the Governor is subject to the conditions referred to in Sub-article (2) of Article 213 of the Constitution which reads as under: