- (1.) THE petitioners in the above two writ petitions have challenged the Rajasthan Panchayat Laws (Amendment) Ordinance 1981 (Ordinance No. 10 of 1981) whereby section 7 of the Rajasthan Panchayat Act, 1953 (Act No. 21j of 1955) has been amended by substituting the words "three years" in place of words "five years" in Sub-sec. (1) of Sec. 7. By this amendment the tenure of the Panchayats has been curtailed from five years to three years, in pursuance of this Ordinance the State Government has notified holding of elections of panchayats in Rajasthan. THE holding of election has been challenged on the ground that the Ordinance is not retrospective and the validity of the Ordinance has been challenged on the ground that no circumstances exist, which render it necessary for the Governor to take immediate action. THE issuance of the Ordinance without the existence of such circumstances, which necessitated taking of immediate action, is nothing but colourable exercise of power or the power has been exercised for extraneous reasons and thus, the power conferred on the Governor under Art. 213 of the Constitution, has not been exercised bona fide. It was averred that the Panchayats have had a term of five years since 1969 and the Ordinance has been issued soon after sometime of the prorogation of the House. By and large the panchayats were properly functioning barring the functioning of a few Panchas and Sarpanchas. For the erring panchas and sarpanchas there are provisions in law for initiating necessary action. Thus, firstly no circumstances existed for the exercise of the power under Art. 213 and besides that, there was no urgency to take an immediate action for making an amendment in section 7 of the Rajasthan Panchayat Act for curtailing the normal tenure of the panchayats. THE measure could have been post-poned till the Assembly is summoned. THE last panchayat elections were held in February 1978. Thus, the panchayats have not completed their normal tenure of five years. THE petitioners have prayed for declaration that the Ordinance 10 of 1981 may be declared to be invalid and ultra vires of Art. 213 of the Constitution. In Shanker Singh's writ petition Sec. 3 of Ordinance 10 of 1981, has been sought to be declared ultra vires and in Darshan Singh's writ petition it is further prayed that the non-petitioners may be restrained from holding election of Sarpanch or Panchas of the Gram Panchayat Maur (46-F) till before 5/2/1983.
(2.) A return to the writ petition has been filed by the non-petitioners in Darshansingh's case, in which it is stated that originally the term of panchayats in the Rajasthan Panchayat Act, 1953, was only three years. This was amended in the year 1969 whereby the term was extended to five years. The Amendment Ordinance brings back the original position. It was further stated that by the Rajasthan Panchayat (Extension of Terms) Ordinance, 1981 (Ordinance No. 11 of 1981) the term of panchayats has been extended upto 31/12/1981, or till the day immediately preceding the date of the first meeting of the panchayats as a result of periodical general election, whichever is earlier. The elections of the panchayats in the State of Rajasthan will be held on 10th, 14th and 18th December, 1981, and the election of Gram Panchayat Maur (46 F) will take place on 18th December, 1981. As regards the grounds of attack raised in the writ petition, it was stated that the Ordinance has been rightly issued in exercise of the powers under Art. 213 of the Constitution by the Governor. There was sufficient material on record showing the existence of the circumstances, which rendered it necessary to take immediate action. The Governor was satisfied that the circumstances existed, which render it necessary for him to take immediate action. The Ordinance has been issued in bona fide exercise of the constitutional powers. The powers have been exercised not for any extraneous or mala fide purpose, but have been exercised bona fide after due satisfaction of the existence of the circumstances, which render it necessary for the Governor to take immediate action and the satisfaction of the Governor is not justiciable. As regards the ground that Ordinance 10 of 1981 is not retrospective in operation, the non-petitioners have submitted that by the Rajasthan Panchayat (Amendment) Ordinance, 1981 (Ordinance No. 13 of 1981, S. 7 of the Rajasthan Panchayat Act (21 of 1953) has been amended retrospectively, as it has been provided in sub-clause (2) of clause 1 that the Ordinance No. 1. 3 of 1981 shall be deemed to have come into force with effect from the 15th day of October, 1981 and a new sub-section (4) has been added to S. 7 whereby it is provided that :- " (4) Notwithstanding anything contained in this Act, the term of a Panchayat as constituted under this Act and as existing immediately before the commencement of the Rajasthan Panchayat Laws (Amendment) Ordinance, 1981 (Ordinance No. 10 of 1981) shall be and shall always be deemed to have been three years. " Thus by virtue of the provisions contained in Ordinance No. 13 of 1981, the objection relating to non-retrospectivity of the Ordinance No. 10 of 1981 does not stand. I have heard Shri M. Mridul and Shri S. N. Deedwania, learned counsel for the petitioners, and Dr. S. K. Tiwari, Advocate General, for the State of Rajasthan. In the present writ petitions the main controversy between the parties is with regard to the justiciability of the Governor's satisfaction for the exercise of the powers conferred by Art. 213 of the Constitution. On behalf of the petitioner Darshan Singh, Mr. Mridul has addressed elaborate arguments, particularly, with a view that the issue of justiciability should be decided by this court in the light of the observations, which have been made by the Supreme Court in various decisions cited by him, which I shall presently refer. His stress is that though the power of the Governor for issuing Ordinance, is a legislative power, but such a power can only be exercised, if a certain situation, as given in Art. 2l3, exists and if the situation as contemplated under Art. 213 does not exist, then the power of issuing Ordinance is not exercisable by the Governor. Before issuing an Ordinance, the Governor has to be satisfied not only about the existence of the circumstances, but also that the circumstances are such which necessitate taking of immediate action. If both the conditions do not exist, then the Governor has no power to promulgate any Ordinance under Art. 213. The main thrust of his argument is that the panchayats were properly functioning and the term was of five years right from 1969. There was no urgency for the issuing of the Ordinance, as the measure sought to be introdu-ced could have been introduced after summoning of the Legislature. Situation was rot such, which warranted an immediate action. According to him, firstly the circumstances did not exist for the measure of curtailment of the normal period of Panchayats. Secondly, even if the circumstances are found to exist, still they were not such, which render it necessary for the Governor to take immediate action. In such a situation the exercise of the power by the Governor is nothing short of curable exercise of power, non-bona fide exercise of power or exercise of power with extraneous consideration. The law making power under Art. 213 is conditioned by the existence of circumstances and by the necessity of taking immediate action. If such a condition does not exist, then the power could not have been exercised. Mr. Mridul submitted that the ordinary process of law making is, by passing of a measure or bill by the Legislature in accordance with the established procedure of law, and it could only be departed when law is to be enacted under Art. 213, and that is permissible when situation, as contemplated under Art. 213 exists. In the ordinary process of law making, the Legislators get an opportunity of ventilating their views and of expressing their but opinions on the various aspects of the measure or the bill presented in the House When the House is not in session, power under Art. 213 can be exercised, but such an exercise of power is not an absolute power, but such a power is conditioned by the conditions or the factors contemplated in Art. 213. The satisfaction of the Governor is executive in nature. That being so. the Governor's satisfaction is subject to judicial scrutiny. Mr Mridul pointed out that in view of the petitioned averment in the write petition, it was the duty of the non-petitioners to atleast prima facie show to the court that the circumstances did exist, which render it necessary for the Governor to take immediate action. He, however conceded that this Court as well as the Supreme Court in one decision has taken the view that the satisfaction of the Governor under Art. 213 is subjective and Governor's satisfaction is not justiciable. But he wants this court to take a different view in the light of the observations made by the Supreme Court in some decisions, to which reference has been made by him and he submitted that in view of those decisions, it will not be necessary for this Court to refer the matter to the larger Bench and this Court can depart from the view taken in Single Bench decision in Sona Ram v. The State of Rajasthan (1 ). Mr. Mridul, in support of his submission placed reliance on three decisions of the Supreme Court, namely, R. C. Cooper vs. Union of India (2); State of Rajasthan v. Union of India (3) and Swadeshi Cotton Mills v. Union of India (4 ). The learned Advocate General, on the other hand, submitted that the question of justiciability of Governor's satisfaction, is no more res Integra. It stands concluded by an authoritative pronouncement of the Supreme Court in M/s. S. K. G. Sugar P. Ltd. v. State of Bihar (5) and so far as this Court is concerned, there are two decisions of this Court pronounced prior to the decision of the case in M/s. S. K. G. Sugar P. Ltd. v. State of Bihar (supra ). The two decisions are K. N. Joshi vs. State of Rajasthan (6) by Tyagi, J. (as he then was) and a Division Bench decision in Surajmal v. State of Rajasthan (7 ). Besides these two decisions, there is a latest decision of this court in Sona Ram v. The State of Rajasthan (supra ). Mr. Tiwari submitted that a Federal Court decision in Lakhi Narayan Das v. The Province of Bihar (8) has been relied upon in all these cases and in the Federal Court decision, reliance has been placed on the earlier two Privy Council decisions in Bhagat Singh v. Emperor (9) and Emperor v. Benoari Lal Sharma (10 ). Before adverting to the consideration of the submissions of Mr. Mridul I may first refer to the relevant decisions cited by Shri Tiwari on the question of justiciability of the Governor's satisfaction.
(3.) IN M/s. S. K. G. Sugar P. Ltd. v. State of Bihar (supra) the validity of the Bihar Ordinance No 3 of 1968 was challenged on the ground that it was beyond the competence of the Governor under Art. 213 of the Constitution because there was no urgency of the promulgation of the Ordinance and the power was exercised mala fide. Sarkaria, J. , speaking for the Constitution Bench, observed that "the Governor's power to promulgate Ordinances under Art. 213 is subject to two conditions, namely : (a) that the house or houses, as the case may be, of the State Legislature must not be in session when the Ordinance is issued; and (b) the Governor must be satisfied as to the existence of circumstances which render it necessary for him to take immediate action. " The dispute was with regard to the existence of condition (b) and in that connection it was observed that - "it is however well settled that the necessity of immediate action and of promulgating an Ordinance is a matter purely for the subjective satisfaction of the Governor. He is the sole Judge as to the existence of the circumstances necessitating the making of an Ordinance. It cannot be questioned on ground of error of judgment or otherwise in court. . see State of Punjab v. Sat Pal Dang (1969) 1 SCR 478= (AIR 1969 SC 903 ). " Although it is not essential to refer to the decision of this Court in view of the decision of the Supreme Court in Mis. S. K. G. Sugar P. Ltd. v. State of Bihar (supra) but as the decisions of this Court have been referred, so they are being dealt with. In K. N. Joshi v. State of Rajasthan (supra), Tyagi J. , as he then was, observed that the court of law cannot be called upon to go into the question of motive or the presence of the circumstances which prompted the Governor to take the emergency measure by promulgating an Ordinance under Art. 213 of the Constitution. It was also observed that the existence of such a necessity is not justiciable for which the courts can be called upon to examine by applying objective tests. Reliance was placed on the above Federal Court decision in Lukhi Narayan Das v. The Province of Bihar (supra) and two other authorities. ;