Decided on October 22,1973



- (1.) THE writ application has been filed by 74 persons, they were all members of the orissa Legislative Assembly which was dissolve ed by the Proclamation dated 3rd march. 1973 issued by the President of India under Article 356 of the Constitution (hereinafter to be referred to as the Proclamation ).
(2.) THE substantial averments in the Writ application may be stated in short hereunder. Shri Bijayananda Patnaik alias Biju Patnaik (petitioner No. 1) was the leader of the pragati party and of the Opposition in the Orissa Legislature. Petitioners 1 to 71 are members of the Prasati party, peti-tioner No. 72 is an Independent member and petitioners Nos. 73 and 74 are mem-bers of the Jharkhand party. On 9th of January, 1971 the Swatantra jana Congress ministry resigned The resignation was forthwith accepted by the Governor without asking the Chief minister to carry on the administration until alternative arrangement was made. There was a constitutional void till 11th January, 1971 when a Proclamation under article 356 was issued. In a subsequent proclamation issued on 21st January. 1971 the President dissolved the Legislative Assembly. The mid-term election was held on 5th of March, 1971. The strength of the parties and independent members after the election was as follows: congress (R) 49 5 seats were vacant. Swatantra 35 By-elections of the five seats were held in the month of Mav and utkal Congress 31 September, 1971. Out of these five, three came to Utkal Congress, one to p. S. P. 4 independent and one to Swatantra. C. P. I. 4 jharkand 4 c. P. I. (M) 2 independents 4 congress (O) 1 jana Congress 1 After the by-election held on 27-9 bijayananda Patnaik and Ors. vs. President of India and Ors. (22. 10. 1973 -ORIHC) Page 3 of 37 jayananda Patnaik and Ors. vs. President of India and Ors. (22. 10. 1973 -ORIHC) Page 3 of 37 1971 the strength of different Parties stood as follows: total 135 (Contd. on C ol. 2)Congress (R) 52 (Three M. L. As. one from Congress (O ). another from Jharkhand and an independent member joined Congress (R) in March. 1971 soon after the 1971 elections)Swatantra __ 36 + 1 independent supporting the party. Utkal Congress 34 + 1 independent supporting. P. S. P. 4 c. P. I. __ 4 c. P. I. (M) 2 jharkhand 3 independents 2 jana Congress 1 total 140 in April, 1971 Swatantra, Utkal Congress Jharkhand and some other Independent members formed a United Iront Assembly party and elected Sri Biswanath Das, an outsider, as the leader of the said Legislature party. Sri Biswanath Das claimed a majority support of 72 in a House of 135. 5 seats being vacant by then. He was called upon by the Governor as the leader of the United Front to form the government The council of Ministers under Shri Biswanath Das was sworn into office on 3rd April, 1971. In May, 1972 the four M. L. As. belonging to the Praia Socialist party joined the congress (R ). On 5-6-1972 six M. L. As. of the Swatantra party joined the Congress (R ). On 6-6-72 three M. L. As. of the Utkal Congress party joined the Congress (R ). On 9-6-1972 the Utkal Congress Legislature party passed a resolution, called merger resolution, whereunder all the legislators of the Utkal Congress unanimously decided to return to its parent body, the Congress (R ). On 9-6-1972 one M. L. A. from the Swatantra party joined the Congress (R ). On 10-6-1972 three M. L. As -- two from the Swatantra and one from Jharkhand-joined the Congress (R ). Thus by 10-6-1972 the strength of the Congress (R) had swelled to 94 from the original number 49. The Congress (R) at the Centre had taken all possible undemocratic and undesirable steps to topple the ministry by defection with the sole object of installing a ruling Congress ministry. On the 9th June, 1972 Shri Biswanath Das tendered his resignation. On the 14th June. 1972 Congress (R) ministry was sworn into office with Shrimati nandini Satpathy as Chief Minister. Prior to the passing of the merger resolution dated 9th of June. 1972 the Central and Local leadership of the Congress had given firm commitment that all the Ml L. As. of the Utkal Congress would be admitted to the ruling Congress party and that only the case of Shri Biiayananda Patnaik would be considered at the highest level of the Congress Party. The commitment was given personally to Shri Nilamani routray, the leader of the Utkal Congress Legislature party. On the basis of the commitment Sri Routray played an important role in persuading his colleagues to pass the merger resolution. Sri Routray was sworn in as a member of the Council of Ministers. In violation of the commitment, only 28 Utkal Congress M. L. As were admitted to the ruling Congress and the other six were not admitted. Sri Routray pressed upon the central and local leadership of the ruling Congress and the Prime minister to honour the commitment and to admit the six Utkal Congress M. L. As. He failed in his effort which had been continued till the date of his resignation. On 22-12-1972 eleven M. L. As. of the Utkal Coneress party who had joined the ruling Congress returned back to the Utkal Congress in pursuance of a resolution passed on 12th November. 1972. Even thereafter, Sri Routray continued to press upon the Congress leadership to fulfil its commitments and to bring about rapproachment between the Utkal Congress and the ruling Congress. Having failed in all his efforts Sri Routray resigned from the ruling Congress and rejoined the utkal Congress on 28th February. 1973. At 6 A. M. on 1st March, 1973 twentyone M. L. As intimated the Sneaker of their having resigned from the ruling Congress and of having joined the Prasati Party. The respective strength of the ruling Congress and the Pragati party in the legislature at 6 a. m. on 1st March. 1973 was as follows: congress (R) -- 57 pragati Party -- 68 on that very day four other M. L. As resigned from the ruling Congress and joined the Pragati Party whose strength increased to 72. Out of 72 members of the Pragati party, two defected on that very day. At the time the Governor drew UP his report On 1st March, 1973 the strength of the pragati party was 70 which constituted an absolute majority in a house of 139 excluding the Speaker. At the time the President issued the Proclamation on 3rd March, 1973 the strength of the Pragati party increased to 71 as a member of the Legislature from the ruling congress joined the Pragati party on 2nd March, 1973. This fact was telegraphically intimated to the Governor and the President. On 1st March. 1973 the Appropriation Bill on the second supplementary statement of expenditure for the year 1972-73 was to be discussed amongst other official business. That day at 2 p. m. there was a by-election for one Rajyasabha seat. The contest was between Sri Bhairaba Chandra Mohanty as a nominee of Congress (R ). and Sri debananda Amat. an independent candidate supported by the Praeati party. Jharkhand, C. P. I. (M) and some Independent M. L. As. Shri Debananda Amat was declared elected by 77 votes against 60 in favour of Sri Bhairaba Chandra mohanty. The stand of the petitioners is that as the Pragati Party had an absolute majori-ty of at least 70 Members in a House of 139 excluding the Speaker the Governor was bound to call the leader of the Pragati party to form the government he did not do so in collusion with the State and Central leadership of Congress (R): the governor's report is actuated with mala fides and the Proclamation is to be declared a nullity as the President acting under the advice of the Central Cabinet issued the same; the advice given , by the Central Cabinet to the President by which he was bound is the outcome of mala fides. The Proclamation was approved by the Parliament. The petitioners prav for issue of a writ of mandamus, certiorari or any other appropriate writ to quash-- : (i) the report of the Governor dated 1-3-1973 which was vitiated by prejudice, malice and mala fides. (ii) the order of the Governor dated 1-3-1973 proroguing the Orissa legislative Assembly; (iii) the impugned Proclamation: (iv) The resolution of the Parliament approving the impugned proclamation, and to issue an injunction restraining the operation of the prorogation and the Proclamation.
(3.) OPPOSITE parties 1 and 2 are the President of India and the Governor of Orissa. On 2-5-1973 this Court ordered that no notice would issue to opposite parties 1 and 2 as Article 361 of the Constitution is a bar. Notice was issued only to the union of India (Opposite party No. 3) and the State of Orissa (Opposite party No. 4 ). Counter-affidavits have been filed by opposite parties 3 and 4. Most of the facts are not disputed. Opposite parties 3 and 4 challenge the facts alleging mala fides to the President, the Governor and to them and plead that those questions cannot be gone into in the absence of opposite parties 1 and 2. The main objections pertain to the maintainability of the writ application on various constitutional and legal grounds.;

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