MANGAL SINGH & ANR. versus UNION OF INDIA

MANGAL SINGH & ANR.

UNION OF INDIA

November 17, 1966

[K. SUBBA RAo, C.J., ]. C. SHAH, S. M. SIKRI, V. RAMASWAMI AND C. A. VAIDIALINGAM, JJ.]

Constitution of India, Arts. 4, 170(1)-State Legislative Assembly-Minimum membership prescribed-Reduction if violates Art. 170(1)-Legislative Council-Unseating of nv.nnbers elected from area con.rtituted having unicameral Legislature.

Punjab Reorganisation Act (31 of 1966), ss. 13, 20 and 22-Validity.

The Punjab Reorganisation Act. 1966, carved out of the old State of Punjab two new States, Punjab and Haryana, transferred some areas. to Himachal Pradesh and constituted Chandigarh, territory of the old State, into Union territory. The old State had bi-<:ameral Legislature and so also has the new Stlte of Punjab; but that of Haryana is to be uni-cameral. Under the Act the Legislative Assembly of Haryana is to consist of only 54 members; members of the Legislative Council oi the old State belonging to Haryana area are unseated, while those members residing _in the Union Territory of Chandigarh continue to be members of the Legis-lative Council of that new State of Punjab. The appellants, none of whom was sitting member of the Legislative Council of the old State, challenged tite legality of the Act in writ petition, which the High Court rejected. In appeal to this Coun, the appellants contended that (i) Constitution of the Legislative Assembly of Haryana hr. s. 13 (I) of the Act which departs from the miaimum membership prescribed to the State Legislative Assem-bly violates the mandatory provisions of the Art. 170(1) of the Constitu-tion; and (ii) by enacting that members of the Legislative Council of the old State residing in the Union Territory of Chandigarh shall continue to sit in the Legislative Council in the new State of Punjab and by enacting that the members elected to tho Legislative Council from the Haryana ar<a shall be unseated, there was denial of equality.

HELD : The appeal must be dismissed.

(i) Power to reduce the to'al number of members of tho Legislative Assembly below the minimum prescribed by An. 170( I) is implicit in the authority to make laws under Art. 4 of the Constitution. Such provioion is undoubtedly an amendment of the Constitution, but by the express pro-vision contair.ed in Art. 4(2), no such law which amends the First and the Founh Schedule or which makes supplemental, incidental and conse-quential provision is to be deemed an amendment of the C.Onstitution for purposes of An. 368. The Constitution also contemplates by Art. 4 that in the enactment of laws for giving effect to the admission. establishment or formation of new States or alteration of areas and the boundaries of those Sta~es power to modify provisions of the Constitution in order to tide over temporary difficulty may be exercised by the Parliament. [112 H; 113 C-D]

Cii) Parliament could not make adjustments as would strictly conform to the requirements of An. 171(3) without fresh elections. It. therefore, adopted an ad hoc test and unseated members of the Council who were

residents of the Haryana !lfea. There was, however. no di!tCI'imination in unseating members from the Haryana Area of which appellants could complail\. The appellants were not the sitting members of the Legislative Council of the old State and no personal right of the appellants was in-fringed by un•eating those member.;. rrsidcoi of the State of Haryana merely because of that character. cannot claim to sit in the Punjab Legi•-lative Council. By allowing the members from 1he Chandigarh area to continue to remain members of the new State of Punjab no right of the rC'Sidents of Haryana was violated. [I 14 E.-H; 115 A]

C!vn. APPELLATE JURISDICTION: Civil Appeal No. 2314 of 1966.

Appeal from the judgment ard order dated October 7, 1966 of the Punjab High Court in Circuit Bench at Delhi in Civil Writ Petition No. 790-D of 1966.

M. C. Setalvad, RilVinder Narain, J. B. Dadachanji, for the appellants.

S. V. Gupte, Solicitor-Genera/, R. Ganapathy Iyer, R. N. Saclrthey, and R. H. Dhebar, for the respondent

The Judgment of the Court was delivered by

Shah, J. The Punjab Reorganisation Act, 1966-hereinaftcr called 'the Act'-was enacted with the object ofrcorganising the State of Punjab. By the Act which came into force on November I, 1966, the eastern hilly areas of the old State were transferred to the Union territory of Himachal Pradesh; the territory known as Cl!andigarh in Kharar tahsil was constituted into Union territory; and the remaining territory was divided between the nrw State of Punjab and the Haryana State. The old State of Punjab had bi-camera! Legislature with 154 members in the Legislative Assembly and 51 members in the Legislative Council. Under s. 13 of the Act as from November I, 1966, the Legislative Assembly of the new State of Punjab consists of 87 members and the Haryana Legislative Assembly consists of 54 members. The new State 0f Punjab has also bi-camera! Legislature. Out of the original membership of 51, 16 members whose names are ser. out in the Seventh Schedule to the Act ceased to be members of the Legislative Council, and the remaining members continued to be members of the Leyis-lative Council of the new State of Punjab. Out of the 16 members wbo ccaied to be members of the Legislative Council, 14 members,, it is claimed by the appellants, belong to the Haryaoa area and 2 to the Him:ichal Pradesh Union t=Titory.

The Act was challenged as "illegal and ultra vires of the Consti-tution" on dive~ grounds in writ petition filed by the two appel-lants in the High Court of Punjab. The High Court rejected the pc&ition.

In this Court two contentions were urged in support of the

appelll:

(l) Constitution of the Legislative Assembly of Haryana by s. 13(1) of the Punjab Reorganisation Act, 1966, violates the mandatory provisions of Art. 170(1) of the Constitution; and

(2) By enacting that 8 members of the Legislative Council who are residents of the Union territory of Chandi-garh shall continue to sit in the Legislative Council in the new State of l'Vnjab, and by enacting that the members elected to the :LI:gislative Council from the Haryana area shall be unseated, there is denial of equality.

By s. 24 of the Act it is provided that the total number of seats in the Legislative Assembly of Haryana "to be constituted at any time after the appointed day i.e. November l, 1966 to be illled by persons chosen by direct election from territorial constituencies, shall be eighty-one." It is clear that s. 13(1) which allocates fifty-0 four sitting members out of the members elected to the Legislative Assembly of the old State of Punjab to the Haryana area Legisla-tive Assembly on November l, 1966, is temporary provision.

Comititution of the Legislative Assembly of Haryana on November l, 1966, is, it is contended, violative of Art. 170 :of the Constitution. In terms Art. 170 enacts that Legislative Assembly shall be constituted by members chosen by direct elections from ll:rritorial constituencies, and that the Assembly shall consist of not more than five hundred and not less than sixty members. But Art. 170 is not the only provision having bearing on the constitution of Legislative Assembly.

By Art. 2 the Parliament may by law admit into the Union or establish l"ew States on such terms and conditions as it thinks fit; and Art. 3 provides that the Parliament may by law-

(a) form new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to part of any State;

(b) increase the area of any State;

(c) diminish the area of any State;

(d) alter the boundaries of any State;

(e) alter the name of any State.

Aay law referred to in Art. 2 or Art. 3 shall, it is provided by A.rt. 4(1), contllin such provision foc the amendment of the First Schalolc. and the Fourth Schedule as may be noce:;sary to give effi:l:t to the

provisions of the Jaw and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such Jaw) as Parliament may deem necessary. By cl. (2) of Art. 4 it is provided :

"No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of articles 368."

The law referred to in Arts. 2 & 3 may therefore alter or amend the First Schedule to the Constitution which sets out the names of the States and description of territories thereof and the Fourth Schedule allotting seats to the States in the Council of States in the Union Parliament The law so made may also make supplemental, incidental and consequential provisions which would include pro-visions relating to the setting up of the legislative, executive and judicial organs of the State essential to the effective Sta!P. adminis-tration under the Constitution, expenditure and distribution of revenue, apportionment of ass~ts and liabilit!es, provisions as to services, application and adaptation of laws, transfer of proceedings and other related matters. On the 1 Iain words of Art. 4, there is no warrant for the contention 'ldvanced by counsel for the appellants that the supplemental, incidental and consequential provisions, which by virtue of Art. 4 the Parliament is competent to make, must be supplemental, incidental or consequential to the amend-ment of the First or the Fourth Schedule. The argument that if it be assumed that the Parliament is invested with this wide power it may conceivably exercise power to abolish the legislative and judicial organs of the State altogether is also without substance. We do not think that any such power is contemplated by Art. 4. Power with which the Parliament is invested by Arts. 2 and 3, is J><JWer to admit, establish, or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or for-mation of State as contemplated by the Constitution, and is not power to override the constitutional scheme. No State can there-fore be formed, admitted or set up by law under Art. 4 by the Parliament which has not effective legislative, executive and judicial organs.

Power to reduce the total number of members of the Legis-lative Assembly below the minimum prescribed by Art. 170(1) is, in our judgment, implicit in the authority to make laws under Art. 4. Such provision is undoubtedly an amendment of the Constitution, but by th~ express provision contained in cl. (2) of Art. 4, no such law which amends the First and the Fourth Schedule or which makes supplemental, incidental and consequential provisions is to be

deemed an amendment of the Constitution for the purposes of Art. 368.

Our attention was invited to Art. 371A(2)(h) of the Consti-tution which makes an express provision in derogation to Art. 170(1) relating to the constitution of Legislative Assembly for the State of Nagaland, and fixes "notwithstanding anything in this Constitution, for period of ten years from the date of the· for-mation of the State of Nagaland or for such further period as "the Governor may, on the recommendations of the regional Coun-cil, by public notification specify in this behalf" the membership of ~ Legislative Assembly at 46. Power of the Parliament to make amendments in the Constitution by express enactment so as to reduce the number of members of Legislative Assembly below the minimum prescribed having regard to the exigency of special case may not be denied. But the Constitution also co :emplates by Art. 4 that in the enactment of laws for giving effect to the admis-sion, establishment or formation of new States, or alteration of areas and the boundaries of those States, power to modify provi-D sions of the Constitution in order to tide over temporary diffi-culty may be exercised by the Parliament. The High Court was, therefore, right in holding that s. 13(1) was not invalid merely because it departed from the minimum prescribed as the total membership of the Legislative Assembly for State.

Sections 20 & 22 of the Act deal with the constitution of the Legislative Council. By s. 20 ·the Legislative Council of the new State of Punjab is to consist of 40 representatives and the Third Schedule to the Representation of the People Act, 1950, is to stand modified accordingly. By s. 22 it is provided:

"(!) On the appointed day, the sitting members of the

Legislative Council of Punjab specified in the Seventh Schedule shall cease to be members of that Council.

(2) On and from the appointed day, all sitting mem-

bers of the Legislative Council of Punjab, other than those referred to in sub-section (I), shall continue to be members of that Council.

By the Seventh Schedule, 16 members, of whom it is claimed 14 are from the territory which is now in Haryana State, have been un-seated. It was claimed by the appellants in their petition before the High Court that those 14 members of the Old Punjab Legis-lative Council "would cease to be members of the new Council" from November 1, 1966, whereas 8 members belonging to the newly constituted area of the Union territory of Chandigarh still continue to be members of the new Punjab Legislative Council, and that such discriminatory treatment of members from the Haryana region

amounted to denia1 of equality. In the affidavit c:m behalf of Che Union of India it was submitted that because Chandigarh is to be the capital of the existing State of Punjab and will continue to be the seal of new Government of the Punjab, the members from Oiandi-garh were :idmltted as members of the Legislative Council of the 'llCW State of Punjab, and that the provision was consequential arid incidental to the main provision constituting the State of Puajab, and that in any CYCnt, the appeUants were not persons aggrieved by 1he so-caUcd discriminatory treatment.By Art. 171(3) of the Constitution membership of the Legis-lative Council is not from territorial constituencies: it is by nomi-nation, indirect election or by election from teachers' and graduates' constituencies. Of the total number of.members of the Legislative Council of State, one-third are to be elected by electorates consis-ting of members of municipalities, district boards and such other local authorities in the State. one-twelfth arc to be elected by elec-torates consisting of persons residing in the State who have been for at least three years graduates of any university in India or possess equivalent qualifications, one-twelfth are to be r'ected by electorates consisting of persons who have been engaged in teaching in educational institutions within the Sta(e, one-third are to be elected by the members of the Legislative Assembly of the State from amongst persons who are not memLers of the Assembly, and "the remainder" are to be nominat.!d by the Governor in accordance with the provisions of cl. 5. These constituencies are not terri-torial constituencies. On the reorganisation of the old State of Punjab, adjustments had to be made in the membership of the Legislative Council. No such adjustment as would strictly conform to the requirements of Art. 171(3) could however be made without fresh elections. The Parliament therefore adopted an ad hoc test, and unseated members who were residents in the territory of Haryana and Himachal Pradesh. It is true, as admitted in the affidavit on behalf of the Union of India, that members belonging to the Union territory of Chandigarh will be members of the new Punjab Legislative Council, and members from the Haryana State territory will be unseated. Whether in unseating the members from Haryana area and aUowing the members from the Chandigarh area to continue, valid classification is made on the ground that Oiandigarh is the capital of the two States noed not detain us, because we are of the view that no discrimination by unseating members from the Haryana area can be deemod to be practised against the appellants of which they can eomplain. The ap:pellants were not sitting members of the Legislative Council of the old State of Punjab and no personal rigln of the appellants i~ infringed by unseating the members whose names are set OU't in the Seventh Schedule. Again the new State of Punjab is bi-<:ameral Legisla-ture. The new State of Hacyana is uni-cameral. lt is not claimed,

MANGAL SINGH v. UNION (Shah,/,)

and cannot be claimed, that resident of the State of Haryana is,. merely because of that character, entitled to sit in the Punjab Legis-lative Council. By allowing the members from the! Chandigarh area to continue to remain members of the Legislative Council of the new State of Punjab, no right of the residents of Haryana is therefore violated.

The appeal fails and is dismissed with costs.

Y. P. Appeal dismissed.