P – 19

Year of Competition: 2015

IN THE FEDERAL COURT OF HINDISTAN

Province of Gatoch and Others . . . . . . . . . . . . .Petitioner

Vs.

Federal Republic of Hindistan . . . . . . . . . . . .Respondent

1

Table of Content ___________ ___

1. List of Abbreviations ----------------------------------------------------------------------- 3

2. Index of Authorities -------------------------------------------------------------------------- 4-

5

3. Statement of Jurisdiction ------------------------------------------------------------------- 6

4. Statement of Facts -------------------------------------------------------------------------- 7-10

5. Issues Raised ------------------------------------------------------------------------------- 11

6. Summary Arguments -------------------------------------------------------------------- 12-13

7. Pleadings / Arguments Advanced ------------------------------------------------------ 14- 29

8. Prayer ------------------------------------------------------------------------------------------ 30

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List of Abbreviations

1. Anr. - anothers

2. ors. - others

3. UOI - Union of India

4. Art.- Art.

5. KSMB - Kormi Shrine Management Board

6. GKSMB - Gatoch Kormi Shrine Management Board

7. KIF - Kormi Intellectuals Forum

8. NKSMA - National Kormi Shrine Management Act

9. AIR- All India Reporter

10. SCC- Supreme Court Cases

11. Hon'ble - Honourable

12. Sc - Supreme Court

13. MANU- Manupatra

14. HC - High COurt

15. APHC- Andhra Pradesh High Court

16. PHHC- Punjab and Haryana High Court, Chandigarh

17. ALD- Andhra Legal Decisions

18. ILR- Indian Law Reporter

19. RAJHC- Rajasthan High Court

20. SCR- Supreme Court Reports

21. J. - Justice

22. v./vs.- Versus

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Index of Authorities

CONSTITUTIONS, STATUTES:

1. The Constitution of India, Universal Law Publishing Co. ( 98th ed. 2014)2. Sikh Gurdwara Act, 1925,

http://mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/Sikh_Gurrdwara_Act1925.pdf

3. Punjab Reorganisation Act, 1966, Universal Law Publishing Co. (11th ed. 2010)

CASES REFERRED AND CITED:

1. Kashmir Singh vs. Union of India and Ors., 1 ILR 345 (PHHC 2002)

2. B. P. Singhal vs. Union of India and Anr., 6 SCC 331 (SC 2010)

3. S.R. Bommai and others vs. Union of India, 3 SCC 1 (SC 1994)

4. Hoechst Pharmaceuticals Ltd. And Ors. Vs. State of Bihar and Ors., AIR 1019 (SC 1983)

5. Dr. Y.S. Rajasekara Reddy and Ors. Vs. Nara Chandra Babu and Ors., 6 ALD 763(APHC 1999)

6. Union Of India and Anr. Vs. Tulsiram Patel and Ors., 3 SCC 398 (SC 1985)

7. Har Govind Pant vs. Chancellor, University of Rajasthan and Ors., AIR 72 (RAJHC 1977)

8. Shamsher Singh v. State of Punjab, 2 SCC 831 (SC 1974)

9. Rameshwar Prasad and Ors . vs . Union of India ( UOI ) and Anr ., 2 SCC 1 (SC 2006)

10. State of Bihar v. Abdul Majid, SCR 786 (SC 1954)

11. Bhim Singh vs. Union of India (UOI) and Ors. (06.05.2010 - SC)

12. State of West Bengal v. Union of India, 1 SCR 371 ( SC 1964)

13. P.L. Dhingra v. UOI, AIR 36 (SC 1958)

14. State of Rajasthan and Ors. v. Union of India, 1 SCR 1 (SC 1978)

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15. In Re: The Bill To Amend S. 20 of The Sea Customs Act, 1878 & S. 3 of The Central Excises and Salt Act, 1944, 1 SCC 380(SC 1979)

BOOKS REFERRED:

1. Prof. M.P. Jain, Indian Constitutional Law (Lexis Nexis, Ruma Pal J.& Samaraditya Pal, 6th ed. 2010)

2. H.M. Seervai, Constitutional Law of India, Vol. I, II & III ( Universal Book traders, 4th ed. 2002)

3. Dr. J.N.Pandey, Constitutional Law of India,  (Central law Agency, Dr. S.S. Srivastava, 51st ed. 2014)

4. P.M. Bakshi, The Constitution of India (Universal Lawpublishing Co., 11 th ed. 2012)

5. J. R.S. Sarkaria, Shri B. Sivaraman & Dr. S.R. Sen, Sarkaria Commission Report, Ministry of Home Affairs (1988)

WEBSITES REFERRED:

1. www.judis.nic.in (last visited on 10th, March 2015 ).

2. www.manupatra.com (last visited on 10th,March 2014).

3. www.scconline.com (last visited on 06th, March, 2014)

LAW REPORTS:

1. Shri P.A. Sangma et al, A constitutional paper on Decentralization and Municipalities,

National Commission to review the working of Constitution (26.09.2001)

http://lawmin.nic.in/ncrwc/finalreport/v2b2-7.htm

2. J. R.S. Sarkaria, Shri B. Sivaraman & Dr. S.R. Sen, Sarkaria Commission Report, Ministry of Home Affairs (1988)

3.

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Statement of Jurisdiction

The Province of Gatoch has approached the Hon’ble Federal Court of Hindistan under

Art.131(a) of the Constitution which gives original jurisdiction to the Federal Court to

adjudicate on disputes between: (a)the Federal Government and one or more Provinces.

The Art. Reads as:

131. Original jurisdiction of the Federal Court- Subject to the provisions of the Constitution,

the Federal Court shall, to the exclusion of any other court, have original jurisdiction in any

other court, have original jurisdiction in any dispute-

(a) between the Federal Government of Hindistan and one or more Provinces;

(b) between the Federal Government of Hindistan and any Province or Provinces on one side

and one or more other Provinces on the other.

(c) Between two or more Provinces

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Statement of Facts

1. Kormi is a religion which is in majority in the Province of Hidamb and it constitutes

around 60% of the total population of Hidamb. Hidamb is a Province in the Federal

Republic of Hindistan. Kormis’ are a religious minority in the Federal Republic of

Hindistan and constitutes around 2% of the total population of the country. Kormis’

have religious Shrines all over the country. Kormis’ have been declared by the

Federal Government as a religious minority. Federal Republic of Hindistan was a

colony of British Empire till 1947 and it gained independence in 1947.

2. Religious Shrines of Kormis’ were managed by Mahants upto 1925 and there were

wide spread allegations of corruption against Mahants. Kormis’ community alleged

that they professed the religion but did not conform to its outward signs and symbols.

Further there were allegations that they had got the properties of Kormi Shrines

registered in their own names. The religious community of Kormis’ started a

movement to gain control of their religious Shrines and to administer Kormi Shrines

in accordance with the basic principles of their religion. The Kormi community

constituted a committee to take over the Shrines from Mahants and at some places;

possession was taken forcibly leading to bloodshed. Province of Hidamb, therefore,

enacted Kormi Shrines Act, 1925 dealing with management and administration of

Kormi Shrines.

3. The aims and objects of the Act were to provide a legal procedure by which Kormi

Shrines may be brought effectively and permanently under the control and

administration of Kormi community and that they be reformed so as to make them

consistent with the religious views of that community. The Act laid down that the

Kormi Shrines are the heritage of Kormi community and Shrines would be managed

and controlled by the community. The Act lawfully handed over the management and

control of the Shrines to the representative of theKormis. Consequently, it recognised

that mahants were not the proprietors but the custodians of the Shrines and the

properties thereof.

4. The Act provided for two-tier management of Kormi Shrines. The Committees of

management were constituted to manage and administer the Shrines at local level. A

Central Board was also constituted which was named as Kormi Shrine Management

Board (KSMB). KSMB was vested with power to control and superintend committees

managing Kormi Shrines. The Act also empowered the KSMB to bring various

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Shrines under its direct control and to work as management committee for those

Shrines.

5. In 1966, the Province of Hidamb was re-organised by Hidamb Province

Reorganisation Act, 1966 and a new Province ‘Gatoch’ was carved out of the

erstwhile Province of Hidamb. By virtue of Section 72 of Hidamb Province

Reorganisation Act the KSMB became an inter-state body.

6. The KSMB had effective control and management of the Kormi Shrines in the

Province of Hidamb and the new Province of Gatoch. However, there were demands

in the Province of Gatoch that Kormis residing in Gatoch were not given adequate

representation in KSMB and their grievances were not taken care of and hence

Kormis’ in the new Province of Gatoch started demanding a new elected body for

them. Considering the long standing demand of Kormis’, the legislature of the

Province of Gatoch passed an enactment Gatoch Kormi Shrine Management Act,

2014 (GKSM Act, 2014) on 10 th May 2014 creating a new, elected and independent

body (GKSMB) to take over, manage and administer Kormi Shrines in the Province

of Gatoch. It is worth mentioning that some other Provinces had also enacted similar

laws for the management and administration of Kormi Shrines in their Provinces.

7. Kormi Intellectuals Forum (KIF), a registered society, claiming to represent Kormis’

intellectuals, had started a movement claiming that a National Kormi Shrine

Management Act should be enacted which should provide for a central body for

administering and controlling Kormi Shrines in the entire country. The KIF got wide

support from community residing across various states.

8. In the meanwhile, three other provinces of the Federation requested the Federal

government to pass a law for their States with respect to management of Kormi

Shrines. Accordingly Federal legislature (House of People) passed a Bill (National

Kormi Shrines Management Bill, 2014) on 16 th May 2014, aimed at creating a

Central National level Body for administration and management of Kormi Shrines

across the country including the Provinces of Hidamb and Gatoch. Before the Bill

could be passed by the Upper House (Council of States), the House of People was

dissolved on 18th May 2014 and a new government came to power at the federal

level.

9. The new Federal Government of Hindistan issued a direction to the Governor

(Champak Khangotra) through telephone on 10th June 2014 not to give assent to the

Bill as the Federal government claimed that there were intelligence reports of wide

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scale violent protests in the Province of Hidamb and on the ground that the Federal

Government is in the process of enacting a comprehensive national law on the subject.

Subsequently, on 16 th June 2014 Federal Government wrote a letter to the governor

to reserve the Bill for the assent of the President of the Federation claiming that even

otherwise the Province did not had legislative competence to enact the law. However,

the Governor gave his assent to the Bill on 18th June 2014. The Act was to become

applicable from such date as may be notified by the Province of Gatoch.

10. The Governor was removed from his office by the President of the Federation on 30th

June 2014 and a new Governor was appointed. The Federal Government issued a

direction to the Province of Gatoch on 02nd July 2014 to refrain from notifying the

date of commencement of the Act. Aggrieved by this, Province of Gatoch filed a

petition before the Federal Court of Hindistan against the Federation of Hindistan on

20th August 2014

11. Some intervening events also took place during this time. In the Province of Gatoch,

elections to Municipalities were not held though the tenure of municipalities had

ended on 1st January 2014. The Governor had written a letter and a report to the

Federal Government that the ProvincialGovernment was bound to hold elections to

Municipalities before the expiry of their tenure. In his report dated 1 st February 2014,

the Governor had recommended to the Federal Government that since the Province of

Gatoch has failed to conduct elections to municipalities, as per the constitutional

mandate, the Provincial Government of Gatoch could not be carried on in accordance

with constitution. The Governor had recommended for dismissal of the Provincial

Government owing to failure of constitutional machinery. In response to the said

letter, the Federal Government wrote a letter dated 15th April 2014 to the Provincial

Government of Gatoch containing a direction to hold the elections as early as possible

and to notify the date of elections immediately. The provincial Government of Gatoch

replied that it is willing to conduct elections as early as possible but it needs some

time to make preparations. However, elections were not held till date.

12. Taking cognizance of the said report, the Government of Gatoch was dismissed on

10st October 2014 by a Presidential Proclamation and President’s Rule was imposed

with immediate effect. The Chief Minister of the Province of Gatoch (Mr. Somesh

Haider) challenged the order of dismissal of his government in the Federal Court of

Hindistan claiming that his government has been dismissed without following

requisite procedure and with malafide intentions by the Federal Government with a

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view to appease its coalition partners who are also running the Government in the

Province of Hidamb. The constitutionality of the order was challenged vide petition

dated 18th October 2014.

13. The Proclamation was laid before House of People on 25th November 2014 and was

approved by the House of People. The Proclamation was also approved by Council of

States on 28th November 2014.

14. Mr. Champak Khangotra also filed a petition in the Federal Court of Hindistan

challenging his removal from office.

15. The Federal Court of Hindistan ordered all the three petitions to be heard and tried

together and the Federal Court constituted a three judge Bench to hear the matter.

1.

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Issues Raised

I. Whether the Province of Gatoch has legislative competency to enact the law, Gatoch

Kormi Shrine Management Act 2014 hereinafter GKSM act 2014?

II. Whether the Governor of a State has discretion not to reserve the Bill for the assent of

the President?

III. Whether President has unfettered power to remove the governor?

IV. Whether not holding municipality election in the province of Gatoch occasions the

failure of constitutional machinery in the province of Gatoch?

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Summary of Arguments

I. Whether the Province of Gatoch has legislative competency to enact the law,

Gatoch Kormi Shrine Management Act 2014 hereinafter GKSM act 2014?

The Provincial Government has legislative competency to enact the Gatoch Kormi

Shrine Management Act, 2014. The Federal Government can only issue directions in

respect of the functioning and operation of the inter-state body corporate, until other

provision is made by law in respect of the said body corporate. The Honb’le Full

Bench in Kashmir Singh vs. Union of India has interpreted the significant words of

Section 72 of  Punjab Reorganization Act, 1966, “until other provision is made by law

in respect of the said body corporate”, that the successor state government has power

and jurisdiction to repeal or amend any law made before the appointed day and the

said body corporate would no more be an inter-state body corporate.

II. Whether the Governor of a State has discretion not to reserve the Bill for the

assent of the President?

The Governor is the Constitutional head of a State in whom the Executive powers are

vested in him. He is not subservient or sub- ordinate to the Federal Goverment. The

Governor has discretion to give assent or withhold to give assent or reserves a Bill

passed by the State legislature, for the Presidents assent. By the virtue of Clause (2) of

Art. 163 of the Constitution, the decision of the Governor in his discretion shall be

final, and the validity of anything done by the Governor shall not be called in question

on the ground that he ought or ought not to have acted in his discretion. Furthermore,

he is not amenable to the directions given by the Federal Government nor is he

accountable for the manner in which he carries out his functions and duties. Thus, it is

at the discretion of Governor of Gatoch, whether to reserve the Bill for Presidents

assent or not, and is not subjected to act according to the directions given by the

Federal Government.

III. Whether President has unfettered power to remove the governorPresident has the power to appoint the Governor under Art.153 of the Constitution as well as to remove him from office under Art.156 which describes the tenure of the office of the Governor. Although it is expressly mentioned in the Art.156 that the

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Governor holds his office at the ‘pleasure of the President’, the Doctrine of Pleasure is not followed in its absolute sense. The doctrine is guided by restrictions which are laid down by the judgements of the apex court and also within the Constitution. The Constitution puts a mandate on the President to carry out his duty guided by the ‘Doctrine of Pleasure’ within the ambit of all the restrictions. These restrictions are mentioned in Art.310 and Art.311 of the Constitution.

IV. Whether not holding municipality election in the province of Gatoch occasions the failure of constitutional machinery in the province of Gatoch?

Provincial Government of Gatoch is not responsible for not holding the elections to Municipalities. By the virtue of Art. 243Z of the Constitution, according the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission and the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities Thus there is no such condition precedent to the issuance of Presidential Proclaimation, which has given rise to failure of Constitutional Machinery in the Province. It is evident that the Government was dismissed due to sheer existence of ideo-political friction between the new Federal Government and the Provincial Government.

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Pleadings

I. Whether the Province of Gatoch has legislative competency to enact the law, Gatoch

Kormi Shrine Management Act 2014?

1. With the long standing demands of Kormis, a religious majority in Hidamb but a

minority in the Federation of Hindistan, the Province of Hidamb enacted Kormi

Shrines Act, 1925 dealing with management and administration of Kormi Shrines.

This act provided for the two tier management of the Kormi Shrines. The committees

of management were constituted to manage and administer Shrines at local level. A

Central Board was also constituted which was named as Kormi Shrine Management

Board (KSMB). KSMB was vested with the power to control and superintend

committees managing Kormi Shrines. With the formation of the new Province of

Gatoch in the year of 1966 the above mentioned body corporate became an inter-state

body corporate by virtue of Section 72 of Hidamb Reorganisation Act, 1966. The

KSMB functioned and operated in the Province of Gatoch as an inter-state body like it

did in the Province of Hidamb subjected to directions from the federal Government

relating to its functioning and operation, until other provision are made by law in

respect to the said body corporate. This was clear from the provision of clause (3) of

Section 72 which says that this Section shall apply to the Kormi Shrine Management

Board. It is evident from the line mentioned in the first clause of Section 72 which

reads as, “until other provisions is made by law in respect of the said body corporate.”

2. Keeping in mind welfare of the Kormis within the Province of Gatoch and their long

standing demand, the Province of Gatoch came up with a legislation for the

administration and management of Kormi Shrines. The legislature of Province of

Gatoch passed an enactment Gatoch Kormi Shrine Management Act, 2014 (GKSM

Act, 2014) on 10th May 2014 creating a new, elected and independent body (GKSMB)

It is submitted that the Province of Gatoch has the power to legislate the welfare of

the people as long as they have jurisdiction to make law on subject matter.

3. Observation of the Hon’ble High Court of Punjab and Haryana was, “To say that the

Board constituted under the Act of 1925 would operate in all four parts and further

that the Board under the Act, as an interstate body corporate, is intended to continue

as such, having power, authority and jurisdiction over all the four parts after the

reorganisation, would not be correct.” The existing Province of Hidamb and its

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successor province of Gatoch have legislative competency to enact laws in their own

states respectively.

4. Also it is worth mentioning that some other Provinces within the Federation of

Hindistan have their own similar laws for the management and administration of

Kormi Shrines in their respective Provinces. Henceforth, the Province of Gatoch

framed an act following the provisions in the Entry 28 in List-III of seventh schedule

[concurrent list]. Thus the Province acted constitutionally to frame a law which would

serve the interest of people of that Province. The interest of the Kormis within the

Province were not being served by the present prevailing act KSMB which was an

inter-state body corporation till the Province of Gatoch formed their own legislature

which nullified the status of KSMB as an inter-state body corporation and by which it

is now only a body corporate. As observed by the Hon’ble SC in the case of Kashmir

Singh1

“We may also mention here that the finding by the Full Bench that

continuation of directions to be given by the Central Government by virtue of Entry

44 in the Union List, the Board being an inter-State body corporate by virtue of

Section 72 of the Act of 1966, also cannot sustain as, in our view, if the States might

adapt, modify or repeal the Act of 1925, the Board, which is an inter-State body

corporate, shall no more remain an inter-State body corporate and its position shall

revert to that what it was under the Act of 1925, namely, body corporate.”

5. Thus the moment the Province legislated upon the act GKSMB, it changed the status

of KSMB as an inter-stated body corporate to a body corporate for the Province of

Hidamb. It is worth mentioning that expressly in the case of Kashmir Singh the court

laid clearly that the legislature, which is empowered to make laws regarding the same

subject as that of the inter-state body corporation, is the State legislature which is

reorganized and parted out of the original state. Thus as soon as the State Legislature

enacts its own law on the same subject matter as that of the inter-state body

corporation, it would seize to exist as a body corporation anymore and will be revert

back and function only as a body corporation for the State in which legislated the

parent act.

6. “The provisions of Part II which deal with reorganisation and creation of successor

States, do not affect any change in the territories to which any law in force

1 Kashmir Singh vs. Union of India and Ors., 1 ILR 345 (PHHC 2002)

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immediately before the appointed day extends or applies. It clearly means and is

accepted position at all ends that the existing laws by virtue of provisions contained in

Section 88 would automatically apply. The position in relation to Act, of 1925 is no

different. But this provision is once again not an all time measure in as much as a

competent legislature, which necessarily means legislature of successor State as well,

would be well within its power and competent enough to provide otherwise then the

existing laws. If that be so and in a given case, the successor State may, in its wisdom,

say otherwise, i.e., the Act of 1925 would not apply to the said State, as mentioned

above, the Board would no more be an inter-state body corporate. The power to

legislate in that case would not be with the Central Government under Entry 44 List-I

(Union list) 7th Schedule. The provisions contained in Section 89, vesting power and

jurisdiction with the appropriate Government, would necessarily include successor

States to repeal or amend any law made before the appointed day.”2

7. Thus the Act, GKSMB enacted by the Province of Gatoch is within the ambit of the

Constitution of the Federal Republic of Hindistan and the provisions laid down under

Section 72 of the Hidamb reorganization act. Hence, in direction to the Governor by

the Federal Government said that the Province did not have the legislative

competency to enact the law is baseless. It is clear with the interpretation of Clause

(1) of Section 72 of the Hidamb Reorganisation Act, 1966 that the Provincial

Government acted within its power and jurisdiction as it clearly had legislative

competency to pass the impugned act.

II. Whether the Governor of a State has discretion not to reserve the Bill for the assent

of the President?

8. KSMB was a body corporate constituted under the Kormi Shrines Act 1925, which

became an inter-state body corporate after the Province of Hidamb was re-organised

by the Hidamb Reorganisation Act, 1966. The KSMB had effective control and

management of Kormi Shrines in the Province of Hidamb and the new Province of

Gatoch. With the passage of time, the Kormis residing in Gatoch felt that their

grievances were not heard and were not taken care off as they were not given

adequate representation in the board. This paved the way for the demand of a new

elected body for the management of Kormi Shrines within the Province of Gatoch.

2 Kashmir Singh; supra at para 69.

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Considering the long standing demand of Kormis, the legislature of the Province of

Gatoch passed GKSM Act, 2014 on 10th May 2014 creating a new, elected and

independent body (GKSMB) to take over, manage and administer Kormi Shrines in

the Province of Gatoch. Meanwhile the House of People was dissolved on 16 th May

2014 and a new Federal Government of Hindistan issued a direction to the Governor

through telephone on 10th June 2014, not to give assent to the bill as there were

intelligence reports of wide scale violent protests in the neighbouring Province of

Hidamb and the Federal Government is in the process of enacting a comprehensive

national law for creating a national level body for administration and management of

Kormi Shrines across the country including the Provinces of Hidamb and Gatoch.

Subsequently on 16th June 2014, the Federal Government wrote a letter to the

Governor to reserve the bill for the assent of the President of the Federation claiming

that even otherwise the Province did not have legislative competence to enact such a

law. This Bill was sent to the Governor, Mr. Champak Khangotra, for his assent. The

assent was given on 18th June, 2014 for the same exercising his power under Art. 200.

The Governor was removed from his office by the President of the Federation on 30 th

June as the Governor did not act according to the directions of the Federal

Government. The removal of the Governor was against the Federal principles and was

unconstitutional as it is wholly and solely the Governor’s discretion whether to

reserve a Bill for the assent of the President or not and the Federal Government had

no competence to direct the Governor to reserve the Bil for the assent of the President.

9. Five Judge Bench of the apex court in Har Govind Pant case3, have explained the

position of the Governor of a state in unequivocal terms, “It will be seen from this

enumeration powers and functions of the Governor that he is not an employ or servant

in any sense of the term. It is no doubt true that the Governor is appointed by the

President which means in effect and substance that the Government of India, but that

is the only mode of appointment and it does not make the Governor an employ or

servant of the Government of India. Every person appointed by the President is not

necessarily an employ of the Government of India, so also it is not material that the

Governor holds office during the pleasure of the President: it is a constitutional

provision for determination of the term of office of the Governor and it does not make

the Government of India an employer of the Governor. The Governor is the head of

the state and holds a high constitutional office which carries with it important

3 Har Govind Pant vs. Chancellor, University of Rajasthan and Ors., AIR 72 (RAJHC 1977)

17

constitutional functions and duties and he cannot, therefore, even by stretching the

language to a breaking point, be regarded as an employ or servant of the Government

of India. He is not amenable to the directions of the Government of India nor is he

accountable for them for the manner in which he carries out his functions and duties.

He is an independent constitutional office which is not subject to the control of the

Government of India. He is constitutionally the head of the State in whom is vested

the executive power of the e State and without whose assent there can be no

legislation in exercise of the legislative power of the State.”And “…it is impossible to

hold that the Governor is under the control of the Government of India. His office is

not sub-ordinate or subservient to the Government of India. He is not amenable to the

directions of the Government of India, nor is he accountable for the manner in which

he carries out his functions and duties.”4

10. Furthermore, the clause (2) of Art. 163 of the Constitution of Hindistan, analogous to

that of the Constitution of India, states, “if any question arises whether any matter is

or is not a matter as respects which the Governor is by or is under this Constitution

required to act in his discretion, the decision of the Governor in his discretion shall

be final, and the validity of anything done by the Governor shall not be called in

question on the ground that he ought to or ought not to have acted in his discretion.”

11. Henceforth, it is submitted that it was the complete discretion of the Governor of the

Province of Gatoch whether to reserve the bill for the assent of the President or to

give his assent or withhold from giving assent and the bill, GKSM Act 2014. Thus,

invoking the Art. 200 of the Constitution it is at the discretion of Governor of Gatoch,

whether to reserve the Bill for Presidents assent or not, and is not subjected to act

according to the directions given by the Federal Government and nor is he

accountable for the manner in which he carries out his functions and duties. Hence

Governor has exercised his discretionary power which is conferred upon him by the

Constitution and gave assent to the Bill, GKSM Act, 2014

III. Whether President has unfettered power to remove the governor?

4 B. P. Singhal vs. Union of India and Anr., 6 SCC 331 (SC 2010)

18

12. Art. 156 of the Constitution of India provides for term of office of Governor. The

clause (1) of the said Art. relates to the doctrine of pleasure with respect to the office

of the Governor.

13. However, in B.P Singhal v. Union of India,5 It has been observed by a five judge

bench decision in the apex court that a Governor, as the Head of the State, holds a

high constitutional office which carries with it important constitutional functions and

duties; that the fact that the Governor is appointed by the President and that he holds

office during the pleasure of the President does not make the Governor an employee

or a servant or agent of the Union Government; and that his independent

constitutional office is not subordinate or subservient to the Union Government and

he is not accountable to them for the manner in which he carries out his functions and

duties as Governor. It is contended that a Governor should ordinarily be permitted to

continue in office for the full term of five years; and though he holds office during the

pleasure of the President, he could be removed before the expiry of the term of five

years, only in rare and exceptional circumstances, by observing the following

constitutional norms and requirements.

(A) The withdrawal of Presidential pleasure under Art. 156, cannot be an unfettered

discretion, nor can it be arbitrary, capricious, unreasonable or malafide. The

power of removal should be used only if there is material to demonstrate

misbehaviour, impropriety or incapacity. In other words, that removal should be

only on existence of grounds which are similar to those prescribed for

impeachment in the case of other constitutional functionaries.

(B) Before a Governor is removed in exercise of power under Clause (1) of Art. 156,

principles of natural justice will have to be followed. He should be issued a show

cause notice setting out the reasons for the proposed removal and be given an

opportunity of being heard in respect of those reasons.

(C) The removal should be by a speaking order so as to apprise him and the public, of

the reasons for considering him unfit to be continued as a Governor. It is also

contended that the withdrawal of Presidential pleasure resulting in removal of a

Governor is justiciable, by way of judicial review. The removal of the Governor,

Champak Khangotra without giving him any reason for the same by way of

5 B.P. SInghal; Supra at para 4

19

notification under Art.311 was itself an act against the procedure laid down by the

supreme law of the land.

14. Furthermore it is submitted that to ensure the independence and effective functioning

of Governors, certain safeguards will have to be read as limitations upon the power of

removal of Governors under Art. 156(1) having regard to the basic structure of the

Constitution. The petitioner's submission is not that a Governor has a fixed

irremovable tenure of five years, but that there should be some certainty of tenure so

that he can discharge the duties and functions of his constitutional office effectively

and independently. Certainty of tenure will be achieved by fixing the norms for

removal. On the other hand, recognizing an unfettered discretion will subject a

Governor to a constant threat of removal and make him subservient to the Union

Government, apart from demoralizing him. Therefore, the removal should conform to

the following constitutional norms: Norm 1 - Removal of Governor to be in rare and

exceptional circumstances, for compelling reasons which make him unfit to continue

in office: The tenure of a Governor is five years under Clause (3) of Art. 156. But

Clause (3) is subject to Clause (1) of Art. 156 which provides that a Governor holds

office during the pleasure of the President. This only means that he could be removed

any time during the period of five years, for compelling reasons which are germane

to, and having a nexus with, the nature of his office and functions performed by him,

as for example, (a) physical or mental disability; (b) corruption; (c) violation of

Constitution; and (d) misbehaviour or behaviour unbecoming of a Governor rendering

him unfit to hold the office (that is indulging in active politics or regularly addressing

political rallies, or having links with anti-national or subversive elements, etc.). The

removal of a Governor under Art. 156 cannot be with reference to the ideology or

personal preferences of the Governor. Nor can such removal be with any ulterior

motives, as for example, to make place for another person who is perceived to be

more amenable to the central government's wishes and directions, or to make room

for a politician who could not be accommodated or continued in the Council of

Ministers. Norm 2 - A Governor should be apprised of the reasons for removal:

Though there is no need for a formal show cause notice or an enquiry, principles of

fair play requires that when a high constitutional functionary like the Governor is

sought to be removed, he should be apprised of the reasons therefore. Norm 3 - The

order of removal is subject to judicial review: In a democracy based on Rule of Law,

20

no authority has any unfettered and unreviewable discretion. All powers vested in all

public authorities, are intended to be used only for public good. Therefore, any order

of premature removal of a Governor will be open to judicial review.

15. In Abdul Majid 6, this Court considered the scope of the doctrine of pleasure, when

examining whether the rule of English Law that a civil servant cannot maintain a suit

against the State or against the Crown for the recovery of arrears of salary as he held

office during the pleasure of the crown, applied in India. This Court held that the

English principle did not apply in India. This Court observed, “It was suggested that

the true view to take is that when the statute says that the office is to be held at

pleasure, it means "at pleasure", and no rules or regulations can alter or modify that;

nor can Section 60 of the Code of Civil Procedure enacted by a subordinate

legislature be used to construe an Act of a superior legislature. It was further

suggested that some meaning must be given to the words "holds office during His

Majesty's pleasure" as these words cannot be ignored and that they bear the meaning

given to them by the Privy Council in I.M. Lall's case. 75 I.A. 225 In our judgment,

these suggestions are based on a misconception of the scope of this expression. The

expression concerns itself with the tenure of office of the civil servant and it is not

implicit in it that a civil servant serves the Crown ex gratia or that his salary is in the

nature of a bounty. It has again no relation or connection with the question whether

an action can be filed to recover arrears of salary against the Crown. The origin of

the two rules is different and they operate on two different fields.” This shows the

'absoluteness' attached to the words 'at pleasure' is in regard to tenure of the office and

does not affect any constitutional or statutory restrictions/limitations which may

apply.

16. The Constitution refers to offices held during the pleasure of the President (without

restrictions), offices held during the pleasure of the President (with restrictions) and

also appointments to which the said doctrine is not applicable. The Art.s in the

Constitution of India which refer to the holding of office during the pleasure of the

President without any restrictions or limitations are Art. 75(2) relating to ministers,

Art. 76(4) relating to Attorney General and Art. 156(1) relating to Governors.

Similarly Art. 164(1) and 165(3) provides that the Ministers (in the States) and

Advocate General for the State shall hold office during the pleasure of the Governor.

6 State of Bihar v. Abdul Majid, SCR 786 (SC 1954)

21

17. Art.310 read with Art. 311 provide an example of the application of 'at pleasure'

doctrine subject to restrictions. Clause (1) of Art. 310 relates to tenure of office of

persons serving the Union or a State, being subject to doctrine of pleasure. However,

Clause (2) of Art. 310 and Art. 311 restricts the operation of the 'at pleasure' doctrine

contained in Art. 310(1). For convenience, we extract below Clause (1) of Art. 310

referring to pleasure doctrine and Clause (2) of Art. 311 containing the restriction on

the pleasure doctrine.

18. Dismissal, removal or reduction in rank of persons employed in civil capacities under

the Union or a State. Art.311(2) - No such person as aforesaid shall be dismissed or

removed or reduced in rank except after an inquiry in which he has been informed of

the charges against him and given a reasonable opportunity of being heard in respect

of those charges.

19. Thus a simple reading of the clause makes it transparent for the Governor to be aware

of the grounds of his termination of office to ensure that he is not treated as a servant

of the Union. In the present context where the Governor to the Province being a very

reasonable man and always following the Constitution to which he swears an oath

was removed without notifying or enquiring for the same.

20. This apex Court in P.L. Dhingra v. Union of India7, referred to the qualifications on

the pleasure doctrine under Art. 310: Subject to these exceptions our Constitution, by

Art. 310(1), has adopted the English Common Law rule that public servants hold

office during the pleasure of the President or Governor, as the case may be and has,

by Art. 311, imposed two qualifications on the exercise of such pleasure. Though the

two qualifications are set out in a separate Art., they quite clearly restrict the operation

of the rule embodied in Art. 310(1). In other words the provisions of Art. 311 operate

as a proviso to Art. 310(1).

21. Thus the President of the Federation of Hindistan by removing the Governor of the

Province of Gatoch without any inquiry or notification has led to the misuse of the

‘Doctrine of Pleasure’ with regard to the interpretations followed by the Hon’ble

courts. Where every precedent follows the doctrine with restrictions mentioned in the

Constitution itself under Art.310 and Art.311, the President of Hindistan was bound to

follow them as well and ignorance to which questions his unfettered powers in the

matters of removal of the Governor.

7 AIR 36 (SC 1958)

22

22. In the Province of Gatoch, elections to Muncipalities were not held though the tenure

of Muncipalities had ended on 1st January 2014. The Governor had written a letter and

a report that the Federal Government that the ProvincialGovernment was bound to

hold elections to Muncipalities before the expiry of the tenure. In his report dated 1st

February, 2014 the Governor had recommended that since the Province of Gatoch has

failed to conduct the elections to municipalities, as to the constitutional mandate the

Province of Gatoch could not be carried on in accordance with the constitution.

23. The State Governmaent is not responsible for conduction of elections in a State. By

the virtue of clause (1) of Art 234Z the superintendence, direction and control of the

preparation of electoral rolls for, and the conduct of, all elections to the Municipalities

shall be vested in the State Election Commission. Clause (2) of Art 234Z, the

Legislature of a State may, by law, make provision with respect to all matters relating

to, or in connection with, elections to the Municipalities.

24. It is the duty of the State Election Commission to look into the conduction of

elections. Undisputedly in terms of Art. 243ZA, the power for holding election, its

superintendence, directions, control, preparation of electoral rolls, conduct and the

law with respect to all matters relating to or in connection with the elections to

Municipalities exists and vests in the State Election Commission. When the Provincial

Government of Government had receive a direction from the Federal Government

they respond positively that they would look into it and see to the elections be held by

the earliest. Little did they know the State Election Commission would delay it any

further.

25. The State Government co-operates with the SEC and likewise fulfils its requirements

and makes available to the SEC the staff necessary like a vast army of returning

officers, police and other Government personnel.8The SEC was fully equipped by the

Provincial Government. Even after the Provincial Government pushed and reminded

the SEC that the tenure of the Civic bodies has completed its term of 5 years, it only

remained ignorant and only continued delaying the conduction of elections.

26. There was nothing that prevented the SEC in holding the elections on time as there

was no obstacle in the path of the Constitutional body to conduct the same. There is

nothing on record or nothing that can be inferred as restriction or prohibition or

8 Shri P.A. Sangma et al, A constitutional paper on Decentralization and Municipalities, National Commission to review the working of Constitution (26.09.2001) http://lawmin.nic.in/ncrwc/finalreport/v2b2-7.htm

23

hindrance from the side of Government to election commission for holding of the

Municipal Elections. In fact Provincial Government wanted elections to be held as

soon as possible. The invoking Art.356on the ground the there was failure of

constitutional machinery as the State Government did not hold the elections to

Municipalities in the Province of Gatoch and imposing Presidents rule is not justified.

27. Throwing light on the meaning and scope of the phrase "cannot be carried on" in

Art.356(1)does not mean that it is impossible to carry on the Government of the State.

It only means that a situation has do arisen that the Government of the Government of

the State cannot be carried on it's administration in accordance with the provisions of

the Constitution. It is not the violation of one provision or another of the Constitution

which bears no nexus to the object of the action under Art.356.

28. By reading of the scheme and the provisions in Part IX-A, it emerges that (i) there

shall be Municipal Committee, Corporation etc., with an exception for the areas

provided and the committee to be constituted for a period of five years; (ii) elections

to it be held every five years; (iii) the superintendence, direction and control of the

preparation of electoral rolls and the conduct of the elections were vested in the State

Election Commission; (iv) subject to a provision of the Constitution, the Legislature is

to make provision in matters relating to or in connection with election to

Municipalities; (v) all laws until amended or repealed by a competent Legislature, or

other competent authority, after the expiration of one year from the commencement of

Part IX-A shall cease to be operative. There are neither expressly nor impliedly any

provisions to rectify or legalise any default in holding election after five years or

rendering the election void.9

29. Power under Art. 356 should be used very sparingly and only when President

is fully satisfied that a situation has arisen where the Government of the State

cannot be carried on in accordance with the provisions of the Constitution.

Otherwise, the frequent use of this power and its exercise are likely to disturb the

constitutional balance. Merely because a different political party is elected to

power at the Centre, even if with a thumping majority, is no ground to hold that 'a

situation has arisenin which the Government of the State cannot be carried on in

accordance with the provisions of this Constitution', which is the requirement for

the exercise of power under Art. 356(1) of the Constitution.

9 Dr. Y.S. Rajasekara Reddy and Ors. Vs. Nara Chandra Babu and Ors., 6 ALD 763(APHC 1999)

24

30. Art.356(1) on considerations extraneous to the said provision and, therefore,

legally mala fide. It is a matter of common knowledge that people vote for different

political parties at the Centre and in the States and, therefore, if a political party

with an ideology different from the ideology of the political party in power in any

State comes to power in the Centre, the Central Government would not be justified

in exercising power under Art. 356(1) unless it is shown that the ideology of the

political party in power in the State is inconsistent with the constitutional

philosophy and, therefore, it is not possible for that party to run the affairs of the

State in accordance with the provisions of the Constitution. It is axiomatic that no

State Government can function on a programme which is destructive of the

constitutional philosophy as such functioning can never bein accordance with the

provisions of the Constitution. But whereas State Government is functioning in

accordance with the provision of the Constitution and its ideology is consistent

with the constitutional philosophy, the Central Government would not be justified

in resorting to Art. 356(1) to get rid of the State Government 'solely' on the ground

that a different political party has come to power at the Centre with a landslide

victory. Such exercise of power would be clearly mala fide. The decision of this

Court in State of Rajasthan v. Union of' India10 to the extent it is in consistent with

the above discussion, does not, in my humble view, lay down the law correctly.

31. The Constitution itself provides indication in Art. 365 that on the failure of the

State Government to comply with or to give effect to any directions given by the

Union Government in exercise of its executive powers and other provisions

of the Constitution it shall be lawful for the President to hold that a situation

has arisen in which the Government of the State cannot be carried on in

accordance with the provisions of the Constitution. While it is not possible

to exhaustively catalogue Diverse situation when the constitutional breakdown

may justifiably be inferred from, for instance (i) large-scale breakdown of the law

and order or public order situation; (ii) gross mismanagement of affairs by a State

Government; (iii) corruption or abuse of its power; (iv) danger to national

integration or security of the State or aiding or abetting national disintegration or a

claim for independent sovereign status and (v) subversion of the

10 1 SCR 1 (SC 1978)

25

Constitution while professing to work under the Constitution or creating disunity

or disaffection among the people to disintegrate democratic social fabric.11

32. A nine judge bench in a landmark judgement passes in the apex court observed as

follows: “It is in the light of these other provisions relating to the emergency that

we have to construe the provisions of Art. 356. The crucial expressions in Art.356

(1) are - if the President, "on the receipt of report from the Governor of a State or

otherwise" "is satisfied" that "the situation has arisen in which the Government of

the State cannot be carried on "in accordance with the provisions of the

Constitution". The conditions precedent to the issuance of the Proclamation,

therefore, are: (a) that the President should be satisfied either on the basis of a

report form the Governor of the State or otherwise, (b) that in fact a situation has

arisen in which the Government of the State cannot be carried on in accordance

with the provisions of the Constitution. In other words, the President's satisfaction

has to be based on objective material. That material may be available in the report

sent to him by the Governor or otherwise or both from the report and other sources.

Further, the objective material so available must indicate that the Government of the

State cannot be carried on in accordance with the provisions of the Constitution.

Thus the existence of the objective material showing that the Government of the

State cannot be carried on in accordance with the provisions of the Constitution is a

condition precedent before the President issued the Proclamation. Once such

material is shown to exist, the satisfaction of the President based on the material is

not open to question, However, if there is no such objective material before the

President, or the material before him cannot reasonably suggest that the

Government of the State cannot be carried on in accordance with the provisions of

the Constitution, the Proclamation issued is open to challenge.”

33. With the interepretion of the Art. 356(1) by the Bench of Nine Judges in S R

Bommai; it means a situation where the Government of the State, and not one or a

few functions of the Government cannot be carried on in accpordance with the

Constitution. The inability or the unfitness aforesaid may arise either on account of

the non- performance or mal performance of one or more functions of the

Government or on account of abuse or misuse of any powers, duties and obligations

11 S.R. Bommai and others vs. Union of India, 3 SCC 1 (SC 1994)

26

of the Government. The conditions precedent to the issuance of the Proclamation

therefore, are: (a) that the President should be satisfied either on the basis of a

report form the Governor of the State or otherwise, (b) that in fact a situation has

arisen in which the Government of the State cannot be carried on in accordance

with the provisions of the Constitution. In other words, the President's satisfaction

has to be based on objective material. That material may be available in the report

sent to him by the Governor or otherwise or both from the report and other sources.

Further, the objective material so available must indicate that the Government of the

State cannot be carried on in accordance with the provisions of the Constitution.

Thus the existence of the objective material showing that the Government of the

State cannot be carried on in accordance with the provisions of the Constitution is a

condition precedent before the President issued the Proclamation. No such situation

had risen in the Government of the State that it cannot be carried on in accordance

with the provision of the Constitution for the President be satisfied on the basis of

the Governor’s report or otherwise and Presidential Rule was imposed. 12

34. Not being ignorant of the fact that a new Government had come to power at Federal

level, it is ex facie that there exists an inconsistency and repellent nature between

the State Government and Federal Government. The Federal Government taking

advantage of its supremacy in the Federation, dismissed the State Government with

malafide intention to appease its coaliation partners running in the neighboring

Province of Hidamb and satisfy its political ego. Taking advantage of the report of

the Governor, the saw a chance to take down the State Government and with no

head or tail pursued to achieve their political motive.

35. It is observed in S. R. Bommai (Supra), “It is a matter of common knowledge that

people vote for different political parties at the Centre and in the States and,

therefore, if apolitical party with an ideology different from the ideology of the

political party in power in any State comes to power in the Centre, the Central

Government would not be justified in exercising power under Art. 356(i) unless it is

shown that the ideology of the political party in power in the State is inconsistent

with the constitutional philosophy and, therefore, it is not possible for that party to

run the affairs of the State in accordance with the provisions of the Constitution.

12 S.R Bommai; supra at para 53

27

It is axiomatic that no State Government can function on a programme which is

destructive of the Constitutional philosophy as such functioning can never be in

accordance with the provisions of the Constitution. But where a State Government

is functioning in accordance with the provisions of the Constitution and its ideology

is consistent with the constitutional philosophy, the Central Government

would not be justified in resorting to Art. 356(1) to get rid of the State

Government 'solely' on the ground that a different political party has come to

power at the Centre with a landslide victory. Such exercise of power would be

clearly mala fide. The decision of this Court in State of Rajasthanv. Union of

India13.”

36. This difference ideology of the Provincial and Federal Government has led the

dismissal of Provincial Government; not forgetting that President shall act on the

aid and advise the Prime Minister and his Council of Ministers. It is evident that the

satisfaction has to be formed by the President fairly, on a consideration of the report

of the governor and/ or other material, if any placed before him. Of course the

President under our Constitution in being what maybe called a constitutional

President obliged to act upon the aid and advise of Council of Ministers is binding

upon him by virtue of clause (1) of 74.14

37. In particular when the Federal Government dismissed a Provincial Ministry

belonging to a different poltical party, there is bound to exist friction. The

Provincial Government was dismissed without requisite procedure and no

notification or warning was given before its dismissal. However, when similar

powers were sought to be conferred on the President of India by the Constitution,

there, was a strong opposition from many members of the Constituent

Assembly, vide Constituent Assembly Debates on draft Art.s 277 and 277-A. Dr

Ambedkar pacified the members by stating: "... If at all, they are brought into

operation, I hope the President, who is endowed with all these powers, will take

proper precautions before actually Suspending the administration of the

provinces. I hope the first thing he 'will do would be to issue a mere warning to

a province that has erred, that things were not happening in the way in which

they were intended to happen in the Constitution." (Constituent Assembly

13 State of Rajasthan ; supra14 S.R. Bommao; supra at para 223

28

Debates, Vol. IX, p. 177) Dr. Ambedkar's hope that in rarest of rare cases only

there will be an occasion to invoke the emergency provisions.15 The Provincial

Government was dismissed since it was found unable to hold the municipalities

and deeming it unfit to carry on the Government of Province in accordance with the

provisions of the Constitution; despite the fact that its not the duty of the State to

hold the Municipalities. It is evident from the facts of the case, no warning was

given prior the dismissal of the Government and there was no situation that

occasioned the failure of Constitutional machinery.

38. The Provincial Government of Gatoch is not responsible for not holding the

elections of election. By the virtue of Art.243Z of the Constitution, according the

superintendence, direction and control of the preparation of electoral rolls for, and

the conduct of, all elections to the Municipalities shall be vested in the State

Election Commission and the Legislature of a State may, by law, make provision

with respect to all matters relating to, or in connection with, elections to the

Municipalities Thus there is no such condition precedent to the issuance of

Presidential Proclamation, which has given rise to failure of Constitutional

Machinery in the Province. It is evident that the Government was dismissed the

Provincial Government due to sheer existence of ideo-political friction between the

new Federal Government and the Provincial Government and to appease the

coalition and no requiste proceeding were followed before doing so.

39.

15 H.M. Seervai, Constitutional Law of India, Vol. III ( Universal Book traders, 4th ed. 2002)

29

Prayer

WHEREFORE, IN THE LIGHT OF FACTS STATED, ISSUES RAISED, ARGUMENTS

ADVANCSED AND AUTHORITIES CITED, THE PETITIONER MOST

RESPECTFULLY REQUESTS THIS HON’BLE COURT TO ADJUDGE AND DECLARE

THAT:

1. The Province of Gatoch had legal competency to enact the law, GKSM Act 2014,

under the provisions of the Constitution of Hindistan and thus the Provincial

Government must not be restricted from notifying the same in their Province once it

has already been enacted.

2. The removal of Governor of the Province of Gatoch amounts to misuse of the

Doctrine of Pleasure by the President.

3. The dismissal of the Government of Gatoch was without following requisite procedure and with malafide intentions by the Federal Government with a view to appease its coalition partners who are also running the Government in the Province of Hidamb and thus the Government shall be reinstated.

AND TO PASS ANY SUCH OTHER ORDER, DISCRETION & JUDGMENT AS THIS HON’BLE COURT MAY

DEEM FIT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

30