SUNDERLAL PATWA Vs. UNION OF INDIA

JUDGEMENT

(1.) We have assembled today for the purpose of deciding only one incidental matter on which learned counsel for the parties insist. We give our ruling at the outset before we proceed further to hear the counsel for the parties on merits of the writ petition. That limited question as to the legality or propriety of the Governor either in his official capacity or by name described as the Governor, respondent No. 6 in the writ petition was warranted in law or was precluded by virtue of the legal immunity attached to the Governor on account of his acts done or purported to be done in his official capacity under the provisions of Art. 361 of the Constitution of India. While on the one hand, Shri N. C. Jain, learned counsel for the petitioner insists that Shri Kunwar Mehmood Ali, Governor of the State of Madhya Pradesh was a necessary party and no immunity could be enjoyed by him qua a Governor under Art. 361 of the Constitution. It was not only proper but legal for him to be arrayed as one of the respondents in this petition. On the contrary, the learned Advocate General appearing for the State Government and Shri Ravindra Shrivastava, learned Standing Counsel for the Union of India asserted that whether by name or qua Governor, on the facts of the case, more so on the pleading of the petitioner, he is not only attracted the immunity clause under Art. 361 of the Constitution but was not even a proper party in these proceedings.

(2.) In order to decide that limited question, we concentrate only on such aspects as are essential for the decision of the propriety and legality of the respondent No. 6 being arrayed in this case. In order to appreciate the point involved, we may at once call the salient features of the case. This is the petition under Art. 226, Constitution of India filed by the erstwhile Chief Minister of the State of M.P. Shri Sunderlal Patwa (while in other linked cases, some others are the petitioners). Primarily, for the relief that an appropriate writ be issued by this Court quashing the Presidential proclamation under Art. 356(1) of the Constitution as incorporated in Annexure-A superseding or dismissing the State Government and dissolving the Assembly of the State of M. P. Admittedly it is the Presidential proclamation (Annexure-A) which is sought to be quashed. No act of the Governor is sought to be quashed. Back-grounds in which the dispute with regard to the limited question at hand today arises are these :

(3.) In paragraph 33 of the writ petition, it has been stated that the Government of M.P. had sent three reports on different dates, i.e. 8-12-1992, 10-12-1992 and 13-12-1992. These reports are said to be biased and are alleged to have been 'sent with mala fide intention' and therefore His Excellency the Governor was also made a party. Shri Jain, learned counsel for the petitioners states at the bar that the Govt. of M.P., mentioned at the outset of paragraph 33 of the petition is merely a clerical error for the Governor of M.P. Be it so as we were to continue with the narration, these reports are alleged to be biased and sent with mala fide intention necessitating the Governor being made a party in the proceedings. Later on in paragraph 33, it has been stated that in his report dated 8-12-1992, the Governor recommends for proclamation of the President's rule and the dissolution of the State Legislative Assembly forthwith. In this report, there was absolutely no allegation against the State Legislature or the Legislative wing of the Govt. "This shows that the Governor had a biased mind because the Legislative Assembly consisted of more than 2/3rd BJP M.L.As." This is followed by a narration of the unfortunate communal disturbances and the imposition of curfew and other matters with regard to the seriousness in the law and order problem in the State and we may herein now state that prima facie this paragraph is indicative of a sort of break down in law and order machinery of the State. Then in paragraph 34 of the petition, it has been alleged that "the Governor had shown his political bias also by saying that the political leadership provided overt and covert support to the associates of political organisations and by this he infers that there is a break-down of administrative machinery in the State. The Governor is vague in saying so because he has not named any communal organisation." In paragraph 37, it is alleged that "the Governor may have his own bias against R.S.S. on the issue of Hindu-Muslim problem but it was factually incorrect to say that the R.S.S. leaders were contemplating fresh strategy and going underground." Then the substance of the allegations or the grievances against the Governor made in the earlier paragraphs of the writ petition has been set out as if, in nut-shell, in paragraph 38 of the writ petition. It would be useful to use the language of the petition itself in paragraph 38, since it is our endeavour to show that the allegations or assertions made in paragraph 38 are more in the nature of narration of facts than allegations of malice in fact. "According to the petitioner's information 3 reports were sent, copies of which are Annexure-J, K and L. Thus, the notification is vague as one cannot find out from it as to which is that report which has weighed with the Governor for arriving at his satisfaction. Thus, the notification deserves to be quashed. It is also submitted that principle of natural justice do have a play in such circumstance and the Governor should have asked the State Govt. to submit its reply to the allegation and apprehension which weighed with the Governor in preparing the said report Annexure 'J', 'K' and 'L'. Article 167 provides this power to the Governor to seek information from the Chief Minister but the Governor never exercised this power and sent one-sided, colourable, at some places factually incorrect and biased report." These are the so called grievances against the Governor or the Governor's report.