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P 19

Year of Competition: 2015

IN THE FEDERAL COURT OF HINDISTAN

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


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

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

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

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_Act192
5.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)
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)
4

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.

Statement of Jurisdiction
The Province of Gatoch has approached the Honble 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

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 Presidents 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 Honble 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 governor


President 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
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
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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 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. Orbservation of the Honble 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 Honble 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 reorganization 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.
Considering the long standing demand of Kormis, the legislature of the Province of
2 Kashmir Singh; supra at para 69.
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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 Governors 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 case 3, 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
3 Har Govind Pant vs. Chancellor, University of Rajasthan and Ors., AIR 72 (RAJHC
1977)
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the state and holds a high constitutional office which carries with it important
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,
5 B.P. SInghal; Supra at para 4
19

Champak Khangotra without giving him any reason for the same by way of
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
20

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


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.
6 State of Bihar v. Abdul Majid, SCR 786 (SC 1954)
21

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.
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 India 7, 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
7 AIR 36 (SC 1958)
22

Doctrine of Pleasure with regard to the interpretations followed by the Honble


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.
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
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

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
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 underArt.
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
9 Dr. Y.S. Rajasekara Reddy and Ors. Vs. Nara Chandra Babu and Ors., 6 ALD
763(APHC 1999)
24

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.
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' India 10 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 inexercise of its executive powers and other provisions of the
Constitution it shall be lawful for
arisen in which

the President

the Government

to hold that a situation has

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
10 1 SCR 1 (SC 1978)
25

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

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.

11 S.R. Bommai and others vs. Union of India, 3 SCC 1 (SC 1994)
26

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
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 Governors 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,
12 S.R Bommai; supra at para 53
27

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. 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
would not be

the constitutional philosophy, the Central Government

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,
13 State of Rajasthan ; supra
14 S.R. Bommao; supra at para 223
28

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

they were intended to happen in

the

which

Constitution." (Constituent Assembly

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

30