(1.) The present petition has been filed by the petitioner under Article 226 of the Constitution of India and also under sec. 482 read with sec. 197 of the Code of Criminal Procedure, 1973, for the following prayers on the grounds stated in the memo of petition:
(2.) It has been, inter alia, contended that the Her Excellency the Governor has no discretion or authority to pass the impugned order as per the provisions of Art. 163. It is contended that H.E. the Governor has no discretion or authority to take any contrary decision in any manner and the Governor acts through the Council of Ministers. It is contended that as per the judgment of the Constitution Bench of the Hon'ble Apex Court in the case of Samsher Singh V/s. State of Punjab, 1974 2 SCC 831, the Governor has a right "to be consulted, to encourage and to warn" only. Therefore, it is contended that Her Excellency the Governor has acted contrary to the aid and advice of the Council of Ministers and such a decision/impugned order is alien to the Constitution.
(3.) It is also contended that the decision of the Hon'ble Apex Court in the case of M.P. Special Police Establishment V/s. State of M.P. & ors., 2004 8 SCC 788 is not applicable as the facts of the said judgment are totally different. It is contended that the Rules of Business has already been framed by Her Excellency the Governor for the State of Gujarat and item No. 9 refers to the business of prevention of corruption and the Governor has framed the rules with the aid and advice of the Council of Ministers. After framing of such rules, the same has to be executed by the Ministers, Officers in accordance with law and the constitutional provisions. It is therefore contended that there is an inherent lack of jurisdiction on the part of Her Excellency the Governor to pass the impugned order. It is contended that our country has accepted the parliamentary system of democracy with federal structure and the Council of Ministers are the real executives.
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