JYOTIRMOY BOSE Vs. UNION OF INDIA

JUDGEMENT

(1.) In this application the petitioner who is a member of the Parliament challenges an order passed by the President under Article 356 of the Constitution of India and also the order being G.S.R. 491 as also the order passed by the Governor appointing the Advisers being respondents Nos. 4 to 8 and the rule of business dated 6th April, 1970. The petitioner prayed for a writ of quo-warranto against respondents Nos. 4 to 8. Without issuing a Rule, I directed the petitioner to serve a copy of this application on the respondents Nos. 2 to 8. In pursuance of that order, the respondents Nos. 2 to 8 appeared through Mr. Advocate-General and respondent No. 1 appeared through Mr. S. C. Bose. After hearing the parties in full, I do not find any merit in the contentions and I do not, therefore, propose to issue a Rule.

(2.) The facts which were not disputed are that after the resignation of Mr. Ajoy Kumar Mukherjee on or about the 16th March, 1970, the President of India, in purported exercise of powers under Article 356 of the Constitution of India, issued a proclamation being G.S.R. 490 dated 19th March, 1970 whereby the President of India assumed to himself all the functions of the Government of West Bengal and all the powers vested in or exercisable by the Governor and such of the powers as enumerated by the said proclamation. It is further stated that along with the proclamation, the President issued an order being G.S.R. 491 whereby the President directed that all the powers and functions would also be exercisable by the Governor of West Bengal. It is stated that the Governor appointed the respondent No. 4 as his Principal Adviser and respondents Nos. 5 to 8 as his Advisers by orders dated 6th April and 17th April, 1970 by which the Governor assigned to them the charges of various departments of the Government of West Bengal. It is stated that the Governor also fixed the terms and conditions of the appointment. The petitioner has challenged the said orders in this application. The State Government filed affidavit. The Union of India also filed affidavit in support. In the affidavit of the Union of India filed by Mr. L. P. Singh, Secretary to the Ministry of Home Affairs, Government of India, New Delhi, it was stated that in making the said proclamation under Article 356 of the Constitution of India, the President had the advice of the Council of Ministers on the subject. It was stated that the President's proclamation and G.S.R. 490 and order therein being No. G.S.R. 491 were laid on the Table of both the Houses of Parliament on March 20. 1970. It is denied that the advisers are nothing but the Council of Ministers and it is stated that the Advisers are not Council of Ministers but are only appointed to assist the Governor in the discharge of his functions. It is stated further that the salaries and allowances etc., could not be included as only a vote on account was passed on 30th March, 1970 by the Parliament and State Budget estimate would be submitted, on 14th August, 1970 in which the said provision would be made. The State Government also filed affidavit, inter alia, contending (sic) on 11th August. 1970 which was however allowed to be withdrawn by the Court and the respondent was directed to file fresh affidavit and such fresh affidavit was filed by one Mr. Nalinaksha Nanda on 10th September, 1970. It is stated, inter alia, that G.S.R. 490 and G.S.R. 491 were valid. The appointments of the Advisers were also valid. It is stated that the Advisers are not Council of Ministers, as alleged and the appointment of the Advisers have been approved by the President. The Budget grants for the State of West Bengal makes provision for within the head of Account of Salaries for the post of Advisers. It is also said that the vote of account for expenditure was only passed and the Budget for the full year was submitted to the Parliament on 14th August, 1970 and was duly passed by the Parliament. It is stated that the Advisers are only public officers. It is further stated that the rules of business were made under the relevant provision of the Constitution. In reply, the petitioner reiterated the statements made in the petition.

(3.) Mr. Noni Coomar Chakravarty on behalf of the petitioner contended with reference to the proclamation under Article 356 of the Constitution that the Governor is nothing but the Agent of the President and secondly the Governor being a delegatee himself of the President cannot re-delegate the power given to the Governor. The appointment of the Advisers is nothing but re-delegation of the powers delegated to the Governor. Mr. Chakravarty further contended that the G.S.R. 491 is bad in law because in his opinion, the delegation of power could only be done by the Parliament under Article 356(1) (c) of the Constitution and not by an order made under Article 356(3) of the Constitution. It is argued by Mr. Chakravarty that the proclamation has to be placed before the Parliament and G.S.R. 491 not being a proclamation need not be placed before the Parliament. Thirdly, it is contended by Mr. Chakravarty that the appointment of the Advisers is nothing but a substitution of Council of Ministers. Moreover, under Article 356 of the Constitution, the President has delegated the power to the Governor who must act himself. Furthermore, in the affidayit-in-opposition it is stated that in making the proclamation under Article 356 of the Constitution, the President took the advice of the Council of Ministers which, it is alleged, is not contemplated under Article 356 of the Constitution and the proclamation having been made on the basis of an advice of the Council of Ministers, the President has taken into consideration irrelevant matter and, as such, the proclamation is clearly bad. It is further stated that the President and not the Governor can make the assignment and/or appointment of the Advisers. The Governor having appointed them the appointment is bad.