Chh HC | Laying of an Ordinance before State Legislature sub-serves the purpose of legislative control over the ordinance-making power

Chhattisgarh High Court: Goutam Bhaduri, J., while dismissing the present petition held that,

Legislature has before it a full panoply of legislative powers and as an incident of those powers, the express constitutional authority to disapprove an ordinance. If an ordinance has to continue beyond the tenure which is prescribed by Article 213(2)(a), a law has to be enacted by the legislature incorporating its provisions.

Petitioners counsel submitted that notification inviting application by Public Service Commission respondent 1 was published on 27-11-2019 pursuant to official communication of 23-11-2019.

It has been submitted that the above-said notification did not carve out any space for the Economically Weaker Section (EWS) which was brought about by the Constitution (One Hundred and Third Amendment) Act, 2019.

Governor of Chhattisgarh had promulgated the Ordinance of 2019 as the State Legislature was not in session.

Legislative Assembly of the State was held on 2nd and 3rd October, 2019, but no legislative business was laid held. For the legislative business, the Assembly started on 25-11-2019 till 02-12-2019 and therefore the ordinance which was promulgated on 04-09-2019 would hold the field.

If the State took the decision to conduct an examination prior to publication of the notification, it would amount to playing fraud with the Constitution. He also referred to the case Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, and submitted that laying of an Ordinance before the legislature is mandatory.

State Counsel submitted that the Ordinance by the Governor was on 04-09-2019 and re-assmbly took place on 02-10-2019, therefore by virtue of Article 213 (2), six weeks expired on 13-11-2019 and the Ordinance ceased to operate. Subsequently, even if re-assembly of State Legislature started on 25-11-2019 till 02-12-2019 even after expiry of six weeks therefrom ordinance was not laid in the House, therefore, mandamus to this effect cannot be issued the Court.

Analysis

“Article 174 shows that the Governor has power to call for the sessions of the State Legislature and the time limit gap of 6 months is provided. Article 213 further gives power to the Governor to promulgate the Ordinance during the recess of Legislature.”

Since Article 213(2) mandates that the ordinance will expire from six weeks of the date of reassembly of the legislature, the ordinance having not been laid before the legislative assembly, within six weeks it would expire on 13-11-2019. Consequently, the said Article shows that after 13-11-2019, the ordinance ceased to function in operation.

Thus, keeping in view the facts and circumstances of the case and on perusal of the above-stated analysis, it is apparent that, if the State has not placed ordinance for EWS in the Legislative Assembly, the Court cannot issue a writ to promulgate the ordinance by way of mandamus on the principles of separation of powers.

Court also clarified that the reliance place on Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1 does not endorse the view that if the ordinance is not placed within the time prescribed under Article 213(2), the Court will assume such power of effective review or reconsideration.

Laying of an Ordinance before the State Legislature sub-serves the purpose of Legislative control over the ordinance-making power.

Therefore, Court cannot issue a writ of mandamus to Legislature as it would amount to encroaching the turf of the State Legislature. [Irfan Qureashi v. Chhattisgarh State Public Sevice Commission, 2020 SCC OnLine Chh 7, decided on 07-02-2020]

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