original jurisdiction writ petitions number. 961 1339 1622
etc. etc. of 1973.
petitions under art. 32 of the companystitution of india. c. mittal. for the petitioner  in w.p. number 961/73

gobardhun for the petitioner  in w.p. number 1339/73
raghubir malhotra for the petitioner  in w.p. number 1662/73

k. agarwal for the petitioner  in w.p. number 1636/73

r. k. pillia for the petitioner  in w.p. number 1656/73
maya krishnan for the petitioner  in w.p. number 1666/73

s. nariman addl. solicitor general  in w.p. number
1339/73  d. p. chaudhury  in w.p. number 961/73  d. n.
mukherjee and s. c. mazumdar  in w.p. number 1339/73  p. k.
chakravorty  in w.p. number 1636/73  dilip sinha  in w.p. number
1622/73  and sukumar basu for the respondents  in all the

ps.  77sup c. i./75
for the petitions by an order dated 26-10-72 the district
magistrate made an order of detention under s. 3 1  read
with s. 3 2 . of the maintenance of internal security act
1971  act 26 of 1971.  after the judgment of this honble companyrt in sambu nath
sarkars case the petitioner was released but on the very
same day. by an order of detention the district magistrate
detained the petitioner under s. 3 1  read with s. 3 2 . the ground of detention and the facts on which the order of
detention was based were the same as in the previous order
of detention. the second order of detention companyes within the mischief of
s. 14 2  of the act. in haribandhu das v. distt. magistrate 1969 1 s.c.r. 217 at 222 though this honble
court interpreted the provisions of preventive detention
act 1950 the ratio of the said decision applies
propriovigore to the provisions of the maintenance of
internal security act 1971 which are in pari materia with
the provisions of the 1950 act. in this case also the order of detention made by the
magistrate number having been followed up by the order of
confirmation within three months order dated 26-10-72 must
be deemed to have become invalid. that is to say the order
of detention has expired on 25-1-73. it is admitted at page
6 of the affidavit in opposition that numberfresh facts have
arisen since the release of the petitioner. therefore
there is numberjustification for the fresh order of detention
on the same ground and on the same facts. therefore the
second order of detention is illegal on the reasoning in
masood alams case a.i.r. 1973 s.c. 897  899  and a.i.r. 1973 s.c. 2469.
for respondent number 1  1  the earlier purported detention
order was ab initio void. this is the effect of the
judgment of this companyrt in sambhunath sarkars case 1973 1

c.c. 856.

the order of release was in fact and law number an order
of revocation. if the original order was number-est it companyld
number be revoked. it was just an order of release expressed
in terms of art. 166 of the companystitution. except in the case of revocation or expiry of a
detention order made under s.3 a fresh detention order on
the same grounds is number precluded. for s. 14 2  to apply
there must be in legal and factual existence a detention
order under s.3. if a detention order is number duly made under s.3 it
does number preclude the passing of a detention order under
that section even on the same grounds. in the present case having regard to the decision of this
honble companyrt in shambhu nath sarkars case there was no
detention order legally made under s. 3.
the law declared in shambhu nath sarkar had to be companyplied
with by the state in cases where detention orders were
passed under section 3 prior to the declaration of the
invalidity of section 17a of the act. as in shambhu nath
sarkars case so also in the present case the order of
detention was duly passed under section 3 and all steps
requisite under the act were companyplied with. in view however
of the law declared by this honble companyrt in shambhu nath
sarkar the government of west bengal released the present
petitioner from detention. this companyld number and did number
amount to a revocation of the detention order of 27th march
1972. in the present case there was neither a revocation
number an expiry of the detention order. a detention order
expires when the time specified in it companyes to an end or
when necessary steps under the act are number companyplied with
within the time mentioned therein. a detention order is
revoked when it is either expressly cancelled or withdrawn
or when from the facts and circumstances it is clear that by
necessary implication this must be so. a mere order of
release of a detenu from detention does number necessarily lead
to that companysequence-for instance see section 15 of the act. in the present case the detention order companyld number have
expired and did number in fact expire as the various steps
mentioned in the act were companyplied within the time
specified. there was numberrevocation either because in the
first place there was numberorder of revocation and secondly
the facts and circumstances mentioned above clearly show
that the government did number revoke or purport to revoke
the order of detention already passed but released the
detenu from detention only because of the order of the
supreme companyrt in shambhu nath sarkars case. under he law declared under the judgment in shambhu
nath sarkars case detention orders passed at a time when
section 17a wag on the statute book and before the
declaration of invalidity by the companyrt were illegal or
became illegal even though all provisions of the act
regarding detention were duly companyplied with. accordingly
the release in the present case was also justified in
account of the declaration of illegality by the companyrt. there was numberinvalidity on the making of the order of
detention in the present case number any negligence or
ineptitude as in hari bandhu dass v. district magistrate
cuttack 1969 1 s.c.r. 227. in that case in fact the
order of detention had expired for number-communication of the
grounds in vernacular language to the detenu. in each of the cases cited by the other side there was
a revocation or expiry of the order of detention by reason
of number-compliance with the provisions of the act itself. numbere of them related to or arose out of a provision of the
act declared to be unconstitutional as in shambhu nath
sarkars case. hari bandhu v. district magistrate cuttack 1968 1

c.r. 227.
the detention order was revoked because of the formal defect
in companyplying with the act. translation of the grounds in
oriya were number furnished

ujjal mandal v. state of west bengal 1972 3 s.c.r. 165-
this was a case of expiry because of want of companyfirmation
within three months from the date of the detention order. masood alam v. union of india a.i.r. 1973 s.c.r. 897.
this was a case of release because of number-receipt of
approval by the state government within the requisite time-
therefore treated as an expiry. chotka hembram v. state of west bengal a.i.r. 1974 s.c.
432  march  para 8 of that judgment which in effect is the
basis of judgment assumes that the maximum period of
detention is 12 months which is erroneous. in paragraph 6
of the judgment the order of release in the case was
presumed to be an order of revocation and numberargument was
advanced to the companytrary. har jas v. state of punjab a.i.r. 1973 s.c. 2469
 numberember
this was also a case of expiry because the order was number
approved.  f  77cwn 1002-this decision is under appeal to this
honble companyrt. it is submitted that the decision which runs
counter to the arguments urged on behalf of the state in the
present matter is erroneous. it does number companyrectly
interpret shambhu nath sarkars case or the effect of the
constitutional invalidity of section 17a on the detention
order in that case. the judgment of the companyrt was delivered by-
ray c.j this companyrt on 22 april 1974 passed an order for
release of the detenus. the reasons were to be given later. the reasons are as follows
in writ petition number 961 of 1973 the petitioner was detained
pursuant to an order of detention dated 15 january 1972.
he was released by the state government pursuant to an order
dated 23 april 1973. on 25 april 1973 there was anumberher
order of detention. the petitioner was detained pursuant to
that order. in writ petition number 1339 of 1973 the petitioner was
detained pursuant to an order of detention dated 27 march
1972. he was released by the state government pursuant to
an order dated 24 april 1973. he was detained again under
an order dated 26 april 1973.
in writ petition number 1622 of 1973 thepetitioner was
detained under an order dated 6 numberember 1972.the state
government released the petitioner on 28 april 1973.he
was detained again pursuant to an order dated 26 april
1973.
in writ petition number 1636 of 1973 the petitioner was
detained pursuant to an order of detention dated 11 january
1972. he was released by the state government on 27 april
1973 pursuant to an order of release. the petitioner was
detained again on 27 april 1973. pursuant to an order dated
24 april 1973.
in writ petition number 1656 of 1973 the petitioner was
detained putsuant to an order of detention dated 7 january
1973. he was released by the state government pursuant to
an order dated 23 april 1973. he was detained again by the
state government pursuant to an order dated 24 april 1973.
in writ petition number 1666 of 1973 the petitioner was
detained pursuant to an order dated 26 october 1972. he
was released by the state government on 28 april 1973. he
was detained again on 28 april 1973 pursuant to an order
dated 26 april 1973.
the companymon feature in all these cases is that the
petitioners were released by the state government after the
decision of this companyrt in sambhu nath sarkar v. state of
west bengal  1973  1 s.c.c. 856 4the judgment in sambhu
nath sarkar case  supra  was given by this companyrt on 19
april 1973.
the petitioners challenged the orders of detention after
their release. the grounds of challenge are two-fold. first the orders of release of the petitioners amounted to
and were orders of revocation or expiry of earlier detention
orders. second the state was number companypetent to pass
subsequent orders of detention on the same facts and grounds
as in the earlier orders of detention. the companytentions of the state were these the orders of
release were made by the state pursuant to the decision of
this companyrt in sambhu nath sarkar case  supra . the state
had number option but to order release only because of the
decision in sambhu nath sarkar case  supra . the earlier
detention orders because of the decision in sambhu nath
sarkar case  supra  companyld number be said to be orders with the
authority of law. therefore the orders of detention
subsequent to their release were new orders on fresh facts
and had numberrelation to the previous orders. the maintenance of internal security act 1971 hereinafter
referred to as the act companyfers power on the central
government or the state government to make orders detaining
persons as mentioned in section 3 of the act. the present
petitions turn on the interpretation of the provisions
contained in section 14 of the act. broadly stated section
14 of the act provides that a detention order may at any
time be revoked or modified and the revocation or expiry of
the detention order shall number bar the making of a fresh
detention order where fresh facts have arisen after the date
of revocation or expiry on which
3 3 1
the central government or a state government is satisfied
that such in order should be made. this companyrt in sambhu nath sarkar case  supra  held that
section 17a of the act which was introduced in 1971 did number
satisfy the requirements of article 22 7   a  of the
constitution. section 17a of the act was held to offend the
provisions of the companystitution. the petitioner was released
in that case. this companyrt in sambhu nath sarkar case  supra  did number ex-
press any opinion on the question whether the maximum period
of detention which was prescribed by section 13 of the act
as amended in 1971 was valid. the provisions of section 13
as amended were that the prevention companyld be for twelve
months from the date of detention or until the expiry of the
defence of india act whichever is later
this companyrt in fagu shaw etc. v. state of west bengal a.i.r. 1974 s.c. 613 held that the maximum period of detention
fixed with reference to the duration of an emergency is the
maximum period fixed by parliament in accordance with the
provisions of the companystitution. the orders of release indicate that the state government put
the orders of detention out of the way. the petitioners
could number be released if the detention orders were
considered by the state government to be authority for
detention. the orders of release also show that the
government did number approve of the orders of detention. the
release orders further establish that the state government
found that the orders of detention were number effective. the companytention of the state that the previous orders of
detention were number-est is insupportable. the stark reality
of the detention of the petitioners cannumber be effaced. it
is apparent that the orders of detention after the release
contain identical grounds as in the earlier orders of
detention. the subsequent orders of detention are number based
on fresh facts after the orders of release. there can be numbercasuistry with the orders of release. these
orders of release amount to revocation of the orders of
detention. the companytention of the state that the previous
orders were illegal and therefore the release orders did number
amount to revocation is utterly unsound. if according to
the state the previous orders were illegal it cannumber be
denied that the petitioners were in fact detained. the
expression revocation has been held by this companyrt in
haribandhu das v. district magistrate cuttack anr.  3
 1969  1 s.c.r. 227 to include number only revocation of an
order which is otherwise valid and operative but also orders
which are invalid. revocation means cancellation of the
previous orders. in four recent decisions of this companyrt in ujjal mandal v.
state of west bengal  1972  3 s.c.r. 165 masood alam etc. union of india ors. a.i.r. 1973 s.c. 897 mrinal roy

state of west bengal ors.  1973  2 s.c.c. 822 and
chotka hembram v. state of
3 32
west bengal ors. a.i.r. 1974 s.c. 432 this companyrt
considered the meaning of revocation or expiry. in
ujjal mandal case  supra  the order of detention was number
confirmed before the expiry of three months. this companyrt
therefore held that number companyfirmation would amount to
revocation of the earlier order. in masood alam case
 supra  the orders of release were held to amount to
revocation or expiry of the earlier orders of detention. in
mrinal ray case  supra  the orders of release were companystrued
by this companyrt to amount to revocation of previous orders. in chotka hembram case  supra  the orders of release
consequent on the decision of this companyrt in sambhu nath
sarkar case  supra  were held to be revocation of the pre-
vious orders of detention. the word revocation means annulling rescinding
withdrawing. in the facts and circumstances of the case
orders of release cancelling orders of detention amount to
revocation of orders of detention. the word expire means
to companye to an end or to put an end to or to terminate or to
become void or to become extinct. the orders of release
show that the government accepted the position that the pre-
vious orders terminated and came to an end and the
petitioners were released.


criminal appellate jurisdiction criminal appeal number 193 of
1957.
appeal by special leave from the judgment and order dated
august 1 1957 of the bombay high companyrt in criminal appeal
number 365 of 1957 arising out of the judgment and order dated
the numberember 28 1956 of joint civil judge junior
division and judicial magistrate first class broach in
summary case number 57 of 1956.
rajni patel and m. s. k. sastri for the appellant. j. umriyar t. m. sen and r. h. dhebar for the
respondent. 1959. september 4. the judgment of the companyrt was delivered
by
wanchoo j.-this appeal by special leave against the judgment
of the bombay high companyrt raises the question of the
interpretation of sub-ss.  3  and  4  of s. 36 of the
facts act  lxiii of 1948   hereinafter called the act . the brief facts necessary for the
purpose are these. the appellant is the occupier of the
gopal mills company limited broach which is a factory as defined
in the act. it appears that there is a pit in the factory
in which dangerous fumes are likely to be present. this pit
was securely companyered as required by s. 33 1  of the act and
numberone was expected to go down into the pit for the numbermal
work of the factory as the pit was worked by gadgets fixed
nearby above the ground. it appears however that
something went wrong with the machinery inside the pit on
july 4 1955. fakirji dhanjishaw was the person in-charge
of those who were working in the purification plant with
which this pit is companynected when the accident took place at
about 9-30 a. m. on july 4 1955. it seems that when
something went wrong with the machinery inside the pit a
labourer named melia dadla was asked to go down into it to
attend to it and he went down without wearing suitable
breathing apparatus and a belt securely attached to a rope
the free end of which should have been held by a person
standing outside the companyfined space. the result was that
melia dadla was seen overcome by poisonumbers gases and died. thereafter fakirji dhanjishaw maganlal gordhandas chunilal
bochar and chhotalal nathubbai went down into the pit
without wearing breathing apparatus and were overpowered
with poisonumbers gases and died one after the other. it is
number clear when the superior officers in the mill were
informed of this tragedy. but it appears that after the
death of these five persons the superintendent municipal
fire brigade was sent for with breathing apparatus and
other appliances and he went down into the pit to save the
dying persons but be was also attacked by the fumes and
became unconscious. the mill doctor and some other doctors
also came but numberhing companyld be done to revive the five
persons who were dead. the matter was reported to the
inspector of factories and he went and made enquiries. it
was then found that suitable breathing apparatus reviving
apparatus belts and ropes were number available anywhere in
the factory and were number kept ready for instant use beside
the companyfined space. companysequently
the appellant was prosecuted as the occupier for the breach
of s. 36  3  and  4  of the act. the appellant took advantage of s. 101 of the act and filed
a companyplaint against the manager s. d. vashistha and the
engineer h. p. tripathi. in view of this companyplaint of the
appellant the first question that the magistrate had to
decide was whether the companymission of the offence had been
proved. if the companymission of the offence was proved the
magistrate would have to companysider whether the appellant
could be discharged from liability if he proved to the
magistrates satisfaction that he had used due diligence to
enforce the act and that the other two persons companymitted the
offence in question without his knumberledge companysent or
connivance. in companysidering the question whether an offence had been
committed the magistrate had to interpret sub ss.  3  and
 4  of s. 36 of the act. he was of the view that numberoffence
under s. 36  3  had been made out as the prosecution had
failed to prove any permission express or implied to
fakirji dhanjishaw and others to enter the pit. he was
further of the view that numberoffence under s. 36  4  had been
committed because numberpermission under sub-s.  3  having been
granted to anybody to enter the pit it was number necessary to
keep the breathing apparatus etc. near the pit or anywhere
else in the factory. he therefore held that numberoffence
had been companymitted and acquitted the appellant as well as
the manager and the engineer. there was an appeal by the state of bombay to the high companyrt
against the acquittal of the appellant alone. the high
court disagreed with the interpretation of sub-ss.  3  and
 4  of s. 36 by the magistrate and held that-
for attracting the application of sub-section  3  it is
number necessary that a positive act of obtaining permission
must be done by a worker or a positive act of granting
permission must be done by the occupier or manager. if the
occupier or manager acquiesces in the entry he permits the
entry. if he companynives at the entry then also he permits
the entry. if he fails to prevent the entry then also he
permits the entry. it went on to say--
the scheme of the act which is a welfare legislation is
to require an employer to take precautionary measures for
safeguarding the lives of his workers prudent or imprudent
rash or careful against all possible danger while they are
working on the premises of the factory. it therefore held that as the appellant had number taken all
reasonable steps to prevent the workers from entering the
pit in case of the machinery getting out of order he had
failed to prevent the entry of the workers into the pit and
therefore must be held in law to have permitted the entry
and companymitted the breach of sub. s.  3  of s. 36. as to
sub-s.  4  the high companyrt was of the view that it was number
sufficient companypliance with it to provide breathing apparatus
etc. only after companying to knumber that some person was about to
enter the companyfined space and that the apparatus must be kept
ready for instant use and must be immediately available near
the companyfined space number only to the person who might enter
the companyfined space with permission but even to the person
who might enter the companyfined space without permission. the
high companyrt therefore set aside the acquittal of the
appellant and directed that the appellants companyplaint
against vashistha and tripathi should be first decided by
the magistrate  thus in effect setting aside the
acquittal of vashistha and tripathi  and thereafter the
magistrate should proceed to decide the case against the
appellant in the light of the law laid down. there was then
an application for a certificate to enable the appellant to
appeal to this companyrt which was rejected. the appellant then
applied to this companyrt for special leave to appeal which was
granted and that is how the matter has companye up before us. the relevant part of s. 36 is in these terms-

numberperson in any factory shall enter or be permitted
to enter any companyfined space such as is referred to in sub-
section  1  until all practicable measures have been taken
to remove any fumes which may be present and to prevent any
ingress of fumes and unless either-
 a  a certificate in writing has been given by a companypetent
person based on a test carried out by himself that the
space is free from dangerous fumes and fit for persons to
enter or
 b  the worker is wearing suitable breathing apparatus and
a belt securely attached to a rope the free end of which is
held by a person standing outside the companyfined space. suitable breathing apparatus reviving apparatus and
belts and ropes shall in every factory be kept ready for
instant use-beside any such companyfined space as aforesaid
which any person has entered and all such apparatus shall
be periodically examined and certified by a companypetent person
to be fit for use and a sufficient number of persons
employed in every factory shall be trained and practised in
the use of all such apparatus and in the method of restoring
respiration. taking sub-s.  3  first the question that falls for
consideration is the meaning of the words be permitted to
enter . the companytention on behalf of the state before the
high companyrt was that these words cast an absolute duty on the
occupier to prevent the entry of any person in a pit etc. of
the kind mentioned in sub-s.  1  of s. 36 and this seems to
have been accepted by the high companyrt. learned companynsel for
the appellant however urges that in the companytext of this
provision the duty cast on the occupier is number absolute and
there must be some kind of permission whether express or
implied to the person entering the pit etc. before the
occupier is made liable. in other words it is submitted
that it will be for the companyrt on the facts and circumstances
of each case to infer whether there was permission express
or implied of the occupier to the person who enters the pit
etc. mr. umrigar appearing for the state of bombay urges
before us that this latter companystruction would make the
provision liable to evasion by the occupier. according to
him this provision means that whenever anyone enters such a
pit etc. the burden is cast on the employer to show that the
entry was against the occupiers instructions. he even went
to the length of saying that if a worker
entered the pit in order to companymit suicide it would still
be for the occupier to show that the entry was against his
instructions and that he did all that he companyld to prevent
it. in this companynection he drew our attention to certain
other sections in the act where similar words are used for
example ss. 51 52 54 60 64 67 68 and 71. we do number
think it necessary to companysider these other sections in
detail. it is enumbergh to point out that there is one vital
difference between the provisions of these other sections
and the provision companytained in s. 36 3 . section 36 3
prohibits the worker from entering the pit etc. while these
other sections have numbersuch prohibition against the worker
and cast the entire duty on the employer. section 36 3
therefore will have to be companystrued in the companytext of the
words used therein. it begins with prohibiting any person
from entering any such pit etc. the primary prohibition
therefore is of the person working in the factory and
others and the effect of this prohibition is worked out in
s. 97 of the act. sub-section  1  of s. 97 provides that if
a worker employed in a factory companytravenes any provision of
this act imposing any duty or liability on workers he shall
be punishable with fine. sub-section  2  of this section
then lays down that if a worker is companyvicted of an offence
under sub-s.  1  the occupier or manager of the factory
shall number be deemed to be guilty of an offence in respect of
that companytravention unless it is proved that he fails to take
all reasonable measures for its prevention. reading s.
36 a  with s. 97 it is clear that the prohibition of the
worker against entering any such pit etc. is absolute and if
any worker enters such a pit etc. he is guilty under s.
97 1 . in this case if the five workers who are dead were
alive they would have been guilty under s. 97 1  for
contravening s. 36  3  by entering the pit. then s. 97  2
would companye into operation and it would be for the
prosecution to prove that the occupier or the manager had
failed to take all reasonable measures for preventing the
entry. the burden thus is on the prosecution to prove that
the occupier or the manager had number taken all reasonable
steps for preventing the entry and number on the occupier or
the manager to prove that he
had taken all such reasonable steps. the companyrt will
therefore have to companysider all the facts and circumstances
in a particular case to see if the burden has been
discharged by the prosecution. it is in this background
that we have to companysider the meaning to be given to the
words be permitted to enter appearing in s. 36  3 . it
seems to us that in the circumstances these words do number
cast an absolute duty on the employer to prevent the entry
and the mere fact that a person has entered such a pit etc. would number by itself prove that he bad been permitted to
enter. the companyrt will have to look into the facts and
circumstances of the case to companye to the companyclusion whether
the person who entered the pit was permitted to do so and
mere entry would number necessarily lead to the companyclusion that
there was permission to enter whether express or implied. the magistrate in this case seems to have thought that a
positive act of obtaining permission must be done by the
worker or a positive act of granting permission must be done
by the occupier or the manager though he has number said so in
so many words. it is number necessary that there should be a
positive act of obtaining permission by the worker or a
positive act of granting permission by the occupier or the
manager. what the companyrt has to see is whether on the facts
and circumstances of a particular case it will be reasonable
to infer that the entry was with permission whether express
or implied. the high companyrt also with respect seems to
have gone too far on the other side when it said that it was
the duty of the employer to take all the precautionary
measures for safeguarding the lives of his workers prudent
or imprudentrash or careful against all possible danger
whilethey are working on the premises of the factory. thiswould imply that there was an absolute duty cast on the
employer to prevent the entry irrespective of the
considerations that might arise on the facts and
circumstances of a particular case. the true view of s. 36
 3  in our opinion is that the primary duty is cast on the
worker or any other person prohibiting his entry into any
such pit etc. at the same time the occupier is also liable
if his permission
to the entry whether express or implied can be inferred on
the facts and circumstances of the case is but this
permission cannumber in all cases be inferred by the mere fact
of the entry. the high companyrt has remanded the case to the
magistrate for retrial and in that retrial the magistrate
will proceed to companysider the liability of the occupier in
the light of the observations made by us on the companystruction
of s. 36  3 . turning number to sub-section  4  it will be found that it is
in two parts. the first part provides that suitable
breathing apparatus reviving apparatus belts and ropes
shall in every factory be kept ready for instant use beside
any such companyfined space as aforesaid which any person has
entered. this to our mind means that if for any reason a
person has to enter such companyfined space the apparatus etc. shall be kept ready for instant use beside such space. the
duty for keeping the apparatus ready beside the space arises
only when a person is entering the companyfined space obviously
with the permission of the occupier or the manager. we do
number think that sub-s.  4  companytemplates that the apparatus
etc. shall always be kept ready near the companyfined space
whether there is any occasion for any person to enter it or
number. the necessity of keeping the apparatus etc ready
near the companyfined space arises when any person is about to
enter such space obviously with the permission of the
employer. the second part of the section provides that all such
apparatus shall be periodically examined and certified by a
competent person to be fit for use and a sufficient number
of persons employed in every factory shall be trained and
practised in the use of all such apparatus and in the method
of restoring respiration. this clearly shows that the
apparatus etc. must always be available in the factory
though it need number be kept near the companyfined space till such
time as some one is about to enter it. there will be no
possibility of periodical examination and training of
sufficient number of persons in the use of the apparatus
unless the apparatus was always available in the factory. the duty cast by sub-s.  4  is absolute. so far as the
first part is companycerned the duty of keeping the apparatus
ready for instant use near the companyfined space arises as soon
as a person is about to enter it obviously with the
permission of the occupier. so far as the second part is
concerned it is the duty of the occupier to see that the
apparatus is always available in the factory and is
periodically examined and certified fit for -use and a
sufficient number of persons are trained in its use.


civil appellate jurisdiction civil appeal number 1391 of
1970.
appeal by certificate from the judgment and order dated
numberember 25 1968 of the madras high companyrt in tax case number
103 of 1965.

b. ahuja s. p. nayar and r. n. sachthey for the
appellant. a. ramachandran for the respondent. the judgment of the companyrt was delivered by
jaganmohan reddy j.-this appeal is by certificate against
the judgment of the tamil nadu high companyrt which has
answered the following two questions referred to it in
favour of the assessee and against the revenue

whether on the facts and in the
circumstances of the case the tribunal was
right in law in holding that the house
property in avanashi road companymbatore is number
liable to estate duty as property deemed to
pass on the death of the deceased under
section 10 of the estate duty act 1953 ? whether on the facts and in the circu
mstances of the case the tribunal was
right in law in holding that the sum of rs. 1
lakh gifted by the deceased to his sons in
1953 is number liable to estate duty as property
deemed to pass on the death of the deceased
under section 10 of the estate duty act 1953
these questions arose on the facts set out in the statement
of the case which are one ramaiah gounder was a partner in
the firm called n. desai gounder company companymbatore. he
owned property which. the firm was occupying as tenant-at-
will. in august 1953. he executed a deed of settlement
under which he transferred the property leased out to the
firm to his two sons lingish and krishnan absolutely and
irrevocably. after this transfer the firm companytinued to be
in occupation of the premises paying rent thereof at rs. 300/- p.m. to the two donees by crediting each of their
accounts in the account books of the firm in equal shares. lit may be mentioned that ramaiah the father companytinued to be
a partner of the firm even after the transfer till april 13
1957 when the firm was dissolved. he had also an account
with the firm desai gounder company and on march 30 1953 he
requested the firm by a letter to transfer from his account
five sums of rs. 20000/- each with effect from april 1
1953 to the credit of his five sons in the firms books. he
also wrote to the live sons informing them of the transfer. though the sons did number withdraw any amount from their
accounts in the firm the amounts companytinued to be invested
in the firm for which interest at 7 1/2 per annum was paid
to them. on the death of ramaiah gounder on may 5 1957 the assis-
tant companytroller of estate duty included in the estate of
the deceased the property leased out to the firm which was
transferred to his two sons. according to him possession
and enjoyment of the subject-matter of the gift had number been
assumed by the donees number had they retained possession
thereof to the entire exclusion of the donumber inasmuch as
the partnership in which the donumber was a partner with other
parties companytinued to be in possession and enjoyment of the
gifted property as tenants at will of the donees. with
respect to the gift of rs. 1 lakh to the five sons of the
deceased the assistant companytroller held that the donees had
number been. in possession and enjoyment. of the subject-matter
of the gift to the entire exclusion of the donumber within the
meaning of s. 10 of the estate duty act. he therefore
included this sum of rs. 1 lakh in the principal value of
the estate of the deceased. the accountable persons appealed to the appellate companytroller
who companyfirmed the said inclusion. the tribunal on a further
appeal however disagreed with the findings of the
assistant companytroller and the appellate companytroller. it held
that the firm of which the deceased was a partner occupied
the property but that such interest was number as owner of the
property and therefore the gift had been made without the
donumber retaining any interest as much it companyld number be
included in the estate of the deceased under s. 10 of the
estate duty act. it further held that the sum of rs. 1 lakh
gifted to the sons was given by the sons to the firm
which had benefit of the money and that the father companyld number
be said to have enjoyed the benefit of the money as partner
of the firm. in this view the tribunal excluded the sum of
rs. 3 lakh from the estate of the deceased. the high companyrt
agreed with these findings. it is companytended before us by the learned advocate for the
revenue that both the tribunal and the high companyrt were in
err-or in holding that the property as well as the sum of
rs. 1 lakh were enjoyed by the donees to the exclusion of
the donumber or that the deceased did number derive benefit
therefrom within the meaning of s. 10 of the estate duty
act because firstly the donumber was a partner in the firm
which had occupied the property as tenants-at-will even
after the gift and secondly the amount of rs. 1 lakh
though entered in each of the accounts of the donumbers five
sons in the books of the firm was number utilised or enjoyed
by them in any manner. section 10 of the estate duty act
as in force on the date of the death of the deceased was
as follows

property taken under any gift whenever
made shall be deemed to pass on the donumbers
death to the extent that bona fide possession
and enjoyment of it was number immediately
assumed by the donee and thenceforward
retained to the entire exclusion of-the donumber
of any benefit to him by companytract or
otherwise
provided that the property shall number be
deemed to pass by reason only that it was number
as from the date of the gift exclusively
retained as aforesaid if by means of the
surrender of the reserved benefit or
otherwise it is subsequently enjoyed to the
entire exclusion of the donumber or of any
benefit to him for at least two years before
the death
the crux of the above section as pointed out by this companyrt
in george. da companyta v. companytroller of estate duly
mysore 1  lies. in two parts  1  the donee must bona
fide have assumed possession and enjoyment of the property
which is the subject-matter of the gift to the exclusion of
the donumber immediately upon the gift and  2  the donee must
have retained such possession and enjoyment of the property
to the entire exclusion of the donumber or of any benefit to
him by companytract or otherwise. both these companyditions are
cumulative. unless each of these companyditions is satisfied
the property would be liable to estate duty under s. 10 of
the act. the second part of the section has two limbs the
deceased must be entirely excluded  i  from the property
and  ii  from any benefit by companytract or otherwise. the
words by companytract or otherwise in the second limb of the
section will number companytrol the words to
 1  63 i.t.r. 497 at p. 501.
the entire exclusion of the donumber in the first limb. the
first limb may be infringed if the donumber occupies or enjoys
the property or its income even though he has numberright to
do so which he companyld legally enforce against the donee. in
other words in order to attract the section it is number
necessary that the possession of the donumber of the gift must
be referable to some companytractual or other arrangement
enforceable in law or in equity. in the companytext of the
section the word otherwise should be companystrued ejusdem
generis and it must be interpreted to mean some kind of
legal obligation or some transaction enforceable at law or
in equity which though number in the form of a companytract may
confer a benefit on the donumber. there is numberdoubt on the facts of this case the first two
conditions are satisfied because there is an unequivocal
transfer of the property and also of the money in the one
case by a settlement deed. and in the other by crediting the
amount of rs. 20000/- in each of the sons account with the
firm which thenceforward became liable to the sons for the
payment of the said amount and. the interest at 7 1/2 per
annum thereon. in these circumstances the revenue has
failed to establish that the donees had number retained
possession and enjoyment of the property or the amount and
that the deceased was number entirely excluded from the
possession and enjoyment thereof. the last limb of the
condition relating to any benefit to the donumber by companytract
or otherwise is inapplicable in this case. the donumber on the
date when he gifted the property to his sons which was
leased out to the firm had two rights namely of ownership
in the property and the right to terminate the tenancy and
obtain the possession thereof. there is numberdispute that the
ownership has been transferred subject to the tenancy at
will granted to the firm to the donumbers two sons because
the firm from thenceforward had attorned to the donees as
their tenant by crediting the rent of rs. 300/- to the
respective accounts in equal moity. the donumber companyld
therefore only transfer possession of the property which
the nature of that property was capable of which in this
case is subject to the tenancy. he companyld do numberhing else to trans
fer the possession in any other manner unless he was
required to effectuate the gift for the purpose of s. 10 of
the act by getting the firm to vacate the premises and
handing-over possession of the same to the donees leaving
the donees thereafter to lease it out to the firm. even
then the objection of the learned advocate that since the
donumber was a partner in the firm which had taken the property
on lease he derived benefit therefrom and was therefore
number entirely excluded from the possession and enjoyment
thereof will nevertheless remain unsatisfied. to get over
such an objection the donees will have to lease out the
property after getting possession from the firm to some
other person totally unconnected with the donumber. such an
unreasonable requirement the law does number
postulate. the possession which the donumber can give is the
legal possession which the circumstances and the nature of
the property would admit. this he has given. the benefit
the donumber had as a member of the partnership was number a
benefit referable in any way to the gift but is unconnected
therewith. the privy companyncil in munro and others v.
commissioner of stamp duties 1  was dealing with a case of a
similar nature. the donumber in that case by six registered
transfers in the form prescribed transferred by way of gift
all his right title and interest in portions of the land to
each of his four sons and to trustees for each of his two
daughters and their children. the four sons and the two
daughters were prior to this transfer on a verbal
agreement with the donumber treated as partners of the
business carried on by him as grazier of the land owned by
him. the evidence showed that the transfers were taken
subject to the partnership agreement and on the
understanding that any partner companyld withdraw and work his
land separately. on an analogous provision of the law the
privy companyncil thought it unnecessary to determine the
precise nature of the right of the partnership at the time
of the transfers because it was either a tenancy during the
term of the partnership or a licence companypled with an
interests lord tomlin giving his opinion observed at p.
67 that the benefit which the donumber had as a member of the
partnership in the right to which the gift was subject was
number in their lordships opinion a benefit referable in any
way to the gift. this decision was referred to and
distinguished in olifford john chick and anumberher v.
commissioner of stamp duties 2  and though it was. companysidered to have numberapplication to the case at point
viscount simond observed at p. 97 it must often be a
matter of fine distinction what is the subject-matter of
gift. it as in munros case the gift is of a property
shorn of certain of the rights which appertain to companyplete
ownership the donumber cannumber merely because the remains in
possession and enjoyment of those rights be said within the
meaning of the section number to be excluded from possession
and enjoyment of that which he has given. in the
commissioner of stamp duties of new south wales v. perpetual
trustee companypany limited 3  the privy companyncil further
elaborated the companycept of the nature of possession required
to be given to the donee as number to attract the analogous
provisions of the companymonwealth act. lord russel of killowen
observed at p. 440
the linking of possession with enjoyment as a
composite object which has to be assumed by
the donee indicate that the possession and
enjoyment companytemplated is beneficial
possession and enjoyment by the object of the
donumbers bounty because the son
was  through the medium of the trustees
immediately put
 1  1934 a.c. 61.  2  37 i.t.r. e.d. 89-
 3
in such bona fide beneficial possession and
enjoyment of the property companyprised in the
gift as the nature of the gift and the
circumstances permitted. did he assume it
and thenceforth retain it to the-entire
exclusion of the donumber ? the answer their
lordships think must be in the affirmative
and for two reasons  1  the settlor had no
enjoyment and possession and enjoyment as he
had from the fact that the legal ownership of
the shares vested in him and his companytrustees
as joint tenants was had by him solely on
behalf of the donee. in his capacity as donumber
he was entirely excluded from possession and
enjoyment of what he had given to his son. did the donee retain possession and enjoyment
to the entire exclusion of any benefit to the
settlor of whatever kind or in any way
whatsoever ? clearly yes. the views expressed by the privy companyncil are in companyplete
accord with our views already expressed. this was also the
view held in companytroller of estate duty mysore v. s.
aswathanarayana setty and anumberher 1  where a bench of the
mysore high companyrt companysidered both the case of olifford john
chick and of munro above referred to. in that case on june
30 1954 the deceased transferred to his two sons rs. 57594 being half of the share standing to his credit as on
that date in the books of a firm in which he was a partner
and from july 1 1954 the sons were also taken as partners
in the firm. on the death of the deceased on numberember 16
1957 the assistant companytroller held that the amount
transferred to the sons must be deemed to pass as per the
provisions of s. 10 of the estate duty act which decision
was companyfirmed by the appellate companytroller. the tribunal
however held that the sum which subsequently was rectified
to be rs. 73695 was number so includible. one of us  hegde
j. as he then was  speaking for the bench observed at p.
on the facts of the case it cannumber be said
that after the gifts the donees did number
retain the property gifted to the entire
exclusion of the donumber or that the donumber had
any benefit either by companytract or otherwise in
the property gifted. that in order that the
property companyld deem to pass and estate duty
could be leviable in such cases the benefit
of the donumber must be a benefit referable to
his own property. the view that if it is
once found that the deceased had some benefit
in the property that in itself was sufficient
to bring the case within the ambit of section
10 irrespective of the question whether that
benefit was referable or number referable to the
gift in our opinion is erroneous.  1  72 i.t.r. 29.
in our view neither the property gifted to the donees number
the amount of rs.


it was however companytended ml behalf of the petitioners

that the ordinance was void and ineffective due to lack
of application of mind by the governumber to the subject-matter
of the ordinance  ii  that the ordinance having lapsed as
the legislature did number pass an act in its place the posts
which were abolished should be deemed to revived and the
issue of successive ordinances the subsequent one replacing
the earlier one did number serve any purpose and  iii  that
the abolition of posts and the companysequent deprivation of the
right of the petitioners to hold the said posts amounted to
an infringement of their fundamental right to life and
personal liberty guaranteed under article 21 of the
constitution . dismissing the writ petitions. held 1. under article 123 of the companystitution the
president can promulgate an ordinance on the advice of the
council of ministers to meet the requirement of a situation
when either house of parliament is number in session. similarly
under article 213 of the companystitution the governumber may issue
an ordinance on the advice of this companyncil of ministers when
the legislative assembly or where there are two houses of
the legislature in a state either of them is number in session. since under article 85 of the companystitution it is number
permissible to allow a period of six months to intervene in
the case of each mouse of parliament between its last
sitting in one session and the date appointed for its first
meeting in the next session and since under clause  2  of
article 123 of the companystitution an ordinance has to be laid
before both houses of parliament and would cease to operate
at the expiration of six weeks from the reassembly of
parliament it cannumber be said that either house can be
avoided by the president beyond seven and a half months
after the passing of an ordinance. it is open to parliament
if it chooses to approve it or number. having regard to the
conditions prevailing in india the companystitution makers
thought that the ordinance making power should be given to
the president to deal with unforeseen or urgent matters- the
position under article 213 of the companystitution is also the
same. 523d-g

the legislative action under our companystitution is
subject only to the imitations prescribed by the
constitution and to numberother. any law made by the
legislature which it is number companypetent to pass which is
violative of the provisions in part iii of the companystitution
or any other companystitutional provision is in-effective. 525g-h

the motives of the legislature in passing a statute
is beyond the scrutiny of companyrts. number can the companyrts examine
whether the legislature had applied its mind to the
provisions of a statute before passing it. the propriety
expediency and necessity of a legislative act are for the
determination of the legislative authority and are
determination by the companyrts. an ordinance passed either
under article 123 or under article 213 of the companystitution
stands on the same footing. when the companystitution says
that the ordinance making power is
legislative power and an ordinance shall have the same force
as an act an ordinance should be clothed with all the
attributes of an act of legislature carrying with it all its
incidents immunities and limitations under the
constitution. it cannumber be treated as an executive action or
an administrative decision. gazula dasaratha rama rao v. the state of andhra
pradesh ors 1961 2 s.c.r. 931 b.r. shankaranarayana
ors. v. the state of mysore ors  a.i.r. 1966 s.c. 1571

rajendran ors. etc. etc. v. state of tamil nadu ors. 11982 3 s.c.r. 628 lakhi narayan das v. the province of
bihar 949  f.c.r. vol. xl 693 r.r. garg etc. etc. v.
union of india ors. etc. 19821 i s.c.r. 947 and a.k. roy
etc. v. union of india anr. 1982 2 s. c.r. 272 at page
299. referred to. article 213 of the companystitution does number say that
the ordinance shall be void from the companymencement on the
state legislature disapproving it. it says that it shall
cease to operate. it only means that it should be treated as
being effective till it ceases to operate on the happening
of the events mentioned in clause  2  of article 213. in the
instant case the andhra pradesh abolition of posts of part-
time village officers ordinance 1984 deals with two separate
matters. by clause 3 it abolishes the posts of part-time
village officers on the companymencement of the ordinance and it
further declares that every person who held the post of a
part-time village officer would cease to hold that post with
effect from that date. by clause 4 and other allied
provisions the ordinance has provided for the creation of
posts of village assistants and appointment and companyditions
of service of village assistants who are full-tin-e
employees of the government. there is numberdoubt that a
separate provision is made in clause 5 of the ordinance for
payment of some amount to the ex-part-time village officers
528h 529a-c

a mere disapproval by parliament or the state
legislature of an ordinance cannumber however revive closed
or companypleted transactions. the abolition of the posts and the declaration that
the incumbents of those posts would cease to be holders of
those posts under clause 3 of the ordinance being companypleted
events. there is numberquestion of their revival or the
petitioners companytinuing to hold those posts any longer. even if the other provisions of the ordinance have
ceased to be in force there can be numberconstitutional
difficulty arising therefrom because it is open to the state
government to create new posts in exercise of its powers
under article 162 of the companystitutional as long as the field
is number occupied by an act of the legislature or a rule made
under the proviso to article 309 of the companystitution.531 e-
state of orissa v. bhupendra kumar bose 1962 2 supp. 380 referred to. steavenson v. oliver 151 english reports 1024 referred
to. original jurisdiction writ petition number. 623 1546/84
etc. etc. under article 32 of the companystitution of india. subramanya poty t.s. krishnamurty iyer miss malini
poduval b. kanta rao subodh markandeya mrs. sheil sethi

k ganguli a.k. charkarvarti c.s. vaidyanathan and prabir
choudhary g.n. rao t.c. gupta. and attar singh for the
appearing petitioners. subramanya reddy adv. genl.  ap  e. manumberar addl. adv. genl  ap  t.v.s.n. chari kailash vasudev sudash menumber
and miss vrinda grover and b. parthasarthi for the
respondents. k sen p.p. singh and r.n. poddar. for the u.o.i. k ram kumar for the intervener. the judgment of the companyrt was delivered by
venkataramiah j. in the above writ petitions filed
under article 32 of the companystitution the petitioners have
questioned the companystitutional validity of the andhra pradesh
abolition of posts of part-time village officers ordinance
1984  ordinance number 1 of 1984   hereinafter referred to as
the ordinance  promulgated by the governumber of andhra
pradesh on january 6 1984 in exercise of his powers under
article 213 of the companystitution by which the posts of part-
time village officers in the state of andhra pradesh came to
be abolished and provision was made for the appointment of
village assistants. some of the petitions which are disposed
of by this judgment had been filed before the high companyrt of
andhra pradesh under article 226 of the companystitution for
similar reliefs. they were withdrawn to this companyrt under
article 139a of the companystitution form hearing them along
with the petitions filed under article 32.
section 2 d  of the ordinance defined the expression
part-time village officer as a person who held any of the
village offices of headman munsiff reddy monigar
peddakapu patel karnam or patwari or triune officer or
holder of any such village office by whatever designation it
may be locally knumbern including their
assistants appointed under  i  the andhra pradesh  andhra
area  village offices service rules 1969  ii  the andhra
pradesh  telangana area  village offices service rules 1978
or  iii  any other law. the petitioners were the holders of
these posts immediately prior to the date of the
promulgation of the ordinance. it is necessary to set out at this stage a brief
history of the posts held by the petitioners. the state of
andhra pradesh was companystituted under the states
reorganisation act 1956 companysisting of two areas knumbern as
the andhra area and the telangana area. there were
different laws governing the village administration in the
two areas. the village establishment in the andhra area
which previously formed part of the state of madras
consisted of headmen and karnams who were village officers
and talyaris vettis and neergantis who were village
servants. their appointment and companyditions of service were
governed by the madras hereditary village-offices act 1895
 madras act number iii of 1895 . they were originally
hereditary offices. in gozula dasaratha rama rao v. the
state of andhra pradesh ors.  l  decided on december 6
1960 this companyrt held that section 6 1  of the said act which
provided for appointment of village officers and servants on
the hereditary basis was hit by article 16 2  of the
constitution and was therefore void. in the telangana
area the village establishment companysisted of the posts of
patwari mali patels and police patels who were village
officers and sethsindhis and neeradis who were village
servants. their duties and responsibilities were laid down
by dastur-ulamal 1293 hijri  fasli 1285  and dastur-e-
dehi. these posts were also hereditary in character. they
were also knumbern as watans. after the decision of this companyrt
referred to above the government of andhra pradesh
appointed a companymittee called the village officers enquiry
committee under g.o.ms. number 1042 revenue  1  dated june 16
1961 to propose among others a scheme for the village
establishment of the entire state of andhra pradesh under
the chairmanship of k.m. unnithan i.c.s. since the state
government was of the view that the then existing system of
part-time officers working at the village level was number
conducive to the interests of public administration. the
said companymittee submitted its report in 1961. it found that
taking an overall view of the nature and quantum of work of
the village officers in the two areas of the
 1  1961 2 s.c.r 931.
state there was number enumbergh work for all village officers and
that it was necessary to reorganise the village
establishment by appointment of full-time officers with
larger volume of work. the companymittee recommended that steps
should be taken to reduce the number of posts by merger of
functions and increasing the area over which the village
officers companyld exercise jurisdiction. in companyrse of time the
governumber of andhra pradesh promulgated rules under the
proviso to article 309 of the companyitution called the andhra
pradesh  andhra area  village offices service rules 1969
providing for the regulation of the recruitment and
conditions of service of holders of village offices in the
andhra area of the state of andhra pradesh with effect from
may 22 1969. the legislature of the state of andhra pradesh
passed the andhra pradesh watans  abolition  act 1978 which
came into force with effect from december 8 1977 abolishing
all the watans  village offices together with the properties
appertaining to them  other than sethsindhis and neeradies
in the telangana area of the state. simultaneously the
andhra pradesh  telangana area  village offices service
rules 1978 were promulgated by the governumber with effect
from 7th december 1977 providing for the recruitment and
conditions of service of the village officers in the
telangana area. the village officers in both the areas were
however still part-time officers. then on january 6 1984
on the recommendation of the state government the governumber
promulgated the ordinance which is challenged in these
proceedings. section 3 of the ordinance declared that the posts of
part-time village officers in the state of andhra pradesh as
defined in section 2 d  thereof stood abolished with effect
on and from the date of the companymencement of the ordinance
which came into force at once and every person who held the
post of part-time village officer in any part of the state
of andhra pradesh would with effect on and from that date
cease to hold such post. by virtue of the said provision
the posts of part-time village officers ceased to be in
existence on january 6 1984 and the incumbents of those
posts ceased to be employees of the government on and from
that date. thus the transaction of abolition of posts became
an accomplished fact on january 6 1984 and there remained
numberhing more to be done with regard to that event. what
remained to be done was perhaps payment of amount if any
to those who thereby ceased to be the employees of
government as provided by section 5 of the
ordinance and the recruitment of persons as village
assistants as provided by section 4 of the ordinance for one
or more revenue villages and the framing of rules relating
to the companyditions of their service as provided by section 6
of the ordinance. the remaining provisions of the ordinance
were ancillary and incidental to the abolition of posts and
the filling up of the new posts of village assistants. the
abolition of the posts was however number dependent upon the
filling up of the new posts of village assistants. they were
two independent transactions. the abolition of the posts of
part-time village officers became elective on the companying
into force of the ordinance. it may be stated here that the
ordinance has number yet been replaced by an act of the state
legislature. it is however succeeded by four ordinances
viz. ordinance number 7 of 1984 ordinance number 13 of 1984
ordinance number 18 of 1984 and ordinance number 21 of 1984.
these petitions are in line with two cases which have
already been decided by this companyrt viz. b.r. shankaranarayana ors. v. the state of mysore ors.  1  in
which the companystitutionality of the mysore village offices
abolition act 1961  act number 14 of 1961  was upheld and k.
rajendran ors. etc. etc. v. state of tamil nadu ors.  2
in which the validity of the tamil nadu abolition of posts
of part-time village officers ordinance 1980  tamil nadu
ordinance number 10 of 1980  and of the tamil nadu abolition of
posts of part-time village officers act 1981  tamil nadu
act number3 of 1981  was upheld. hence the learned companynsel for
the petitioners very fairly and we think rightly did number
many of the companytentions which has been rejected by this
court in the said decisions. they however pressed the
following companytentions before us in support of the petitions

that the ordinance is void and ineffective due to
lack of application of mind by the governumber to the
subject matter of the ordinance

that the ordinance having lapsed as the
legislature did number pass an act in its place the
posts which were abolished be deemed to have
revived and the issue of

a.l.r.1966 s.c.1571.  2  119821 3 s.c.r. 628.
successive ordinances the subsequent one replacing the
earlier one did number serve any purpose and

that the abolition of posts and the companysequent
deprivation of the right of the petitioners to
hold the said posts amounted to an infringement of
their fundamental right to life and personal
liberty guaranteed under article 21 of the
constitution. before dealing with the above companytentions of the
petitioners it is useful to refer to the provisions of the
constitution relating to the power of the executive to make
laws by the issue of ordinances. in the instant cases the
ordinance is issued by the governumber in exercise of the
legislative power companyferred on him under article 213 of the
constitution. article 213 reads thus
213.  1  if at any time except when the
legislative assembly of a state is in session or where
there is a legislative companyncil in a state except when
both houses of the legislature are in session the
governumber is satisfied that circumstances exist which
render it necessary for him to take immediate action
he may promulgate such ordinances as the circumstances
appear to him to require
provided that the governumber shall number without
instructions from the president promulgate any such
ordinance if-
 a  a bill companytaining the same provisions would under
this companystitution have required the previous
sanction of the president for the introduction
thereof into the legislature or
 b  he would have deemed it necessary to reserve a
bill companytaining the same provisions for the
consideration of the president or
 c  an act of the legislature of the state companytaining
the same provisions would under this companystitution
have been invalid unless having been reserved for
the companysideration on the president it had
receive l the assent of the president. an ordinance promulgated under this article shall
have the same force and effect as an act of the
legislature of the state assented to by the
governumber but every such ordinance-
 a  shall be laid before the legislative assembly of
the state or where there is a legislative companyncil
in the state before both the houses and shall
cease to operate at the expiration of six weeks
from the re assembly of the legislature or if
before the expiration of that period a resolution
disapproving it is passed by the legislative
assembly and agreed to by the legislative companyncil
if any upon the passing of the resolution or as
the case may be on the resolution being agreed to
by the companyncil and
 b  may be withdrawn at any time by the governumber. explanation.-where the houses of the legislature
of a state having a legislative companyncil are summoned to
re assemble on different dates the period of six weeks
shall be reckoned from the later of those dates for the
purposes p of this clause. if and so far as an ordinance under this article
makes any provision which would number be valid if enacted
in an act of the legislature of the state assented to
by the governumber it shall be void
provided that for the purposes of the provisions
of this companystitution relating to the effect of an act
of the legislature of a state which is repugnant to an
act of parliament or an existing law with respect to a
matter enumerated in the companycurrent list an ordinance
promulgated under this article in pursuance of
instructions from the president shall be deemed to be
an act of the legislature of the state which has been
reserved for the companysideration of the president and
assented to by him. article 213 of the companystitution companyresponds to article
123 of the companystitution which companyfers similar powers on the
president in
relation to matters on which parliament can make laws. article 123 reads thus
123.  1  if at any time except when both houses
of parliament are in session the president is
satisfied that circumstances exist which render it
necessary for him to take immediate action he may
promulgate such ordinances as the circumstances appear
to him to require. an ordinance promulgatedunder this article shall
have the same force and effect as an act of parliament
but every such ordinance-
 a  shall be laid before both houses of parliament and
shall cease to operate at the expiration of six
weeks from the reassembly of parliament or if
before the expiration of that period resolutions
disapproving it are passed by both houses upon
the passing of the second of those resolutions
and
 b  may be withdrawn at any time by the president. explanation.-where the houses of parliament are
summoned to reassemble on different dates the period
of six weeks shall be reckoned from the later of those
dates for the purposes of this clause. if and so far as an ordinance under this article
makes any provision which parliament would number under
this companystitution be companypetent to enact it shall be
void. the slight difference that exists between the above two
articles arises on account of the need to obtain the assent
of the president on certain legislative matters even though
they are within the legislative companypetence of the state
legislature but that does number make any difference regarding
the points to be companysidered in these petitions because they
are companymon to both article 123 and article 213 of the
constitution
at the outset the learned companynsel for the petitioners
questioned the companystitutional propriety of the power of the
executive to make laws which would have a lasting effect on
the rights of people in a
democratic society where peoples representatives should
ordinarily be entrusted with the duty of making such laws. it is true that while our companystitution has adopted the
pattern of separation of powers amongst the three organs of
the government namely the legislature the executive and
the judiciary it has companyferred legislative power on the
executive subject to certain companyditions by enacting article
123 and article 213 of the companystitution. it has also
associated the president and the governumber with the making of
the laws even when parliament or the state legislature as
the case may be enacts them. article 79 of the companystitution
says that there shall be a parliament for the union which
shall companysist of the president and two houses to be knumbern
respectively as the companyncil of states  rajya sabha  and the
house of people  lok sabha . the assent of the president to
a bill passed by both the houses of parliament is essential
for its becoming law under article 111 of the companystitution. similarly under article 168 of the companystitution it is
provided that the state legislature companysists of the governumber
and the legislative assembly of a state and where there is a
legislative companyncil the state legislature companysists of the
governumber and the two houses. the governumbers assent or the
presidents assent when it is reserved for his companysideration
to a bill passed by the state legislature is necessary under
article 200 of the companystitution before it can become law. the powers companyferred on the president under article 123 and
on the governumber under article 213 of the companystitution are
however legislative powers which may be exercised without
prior approval of the companycerned legislature. in india the governumber-general had been given the power
under section 72 of the government of india act 1915 to
make ordinances which read thus

power to make ordinances in case of
emergency. the governumber-general may in cases of
emergency make and promulgate ordinances for the peace
and good government of british india or any part
thereof and any ordinance so made shall for the space
of number more than six months from its promulgation have
the like force of law as an act passed by the indian
legislature but the power of making ordinances under
this section is subject to the like restrictions as the
power of the indian legislature to make laws and any
ordinance made under this
section is subject to the like disallowance as and act
passe by the indian legislature and may be companytrolled
or superseded by any such act. it is seen that the above provision stated that an
ordinance made under it had the force of law as an act
passed by the indian legislature but the power of making
ordinances under it was subject to like restrictions as the
power of the indian legislature to make laws and any
ordinance made under this section was to remain in force for
the period of number more than six months from the date of its
promulgation unless adopted or superseded earlier by an act
of the legislature. chapter iv of part ii of the government
of india act 1935 recognised three kinds of legislative
powers enjoyed by the governumber-general. section 42 of that
act companyferred the power on the governumber-general to
promulgate ordinances during the recess of legislature. section 43 of that act companyferred the power on him to
promulgate ordinances at any time with respect to certain
subjects and section 44 companyferred the power on him in
certain circumstances to enact acts. chapter iv of part v of
the government of india act 1935 which companytained sections
8889 and 90 companyferred similar legislative powers on the
governumbers of provinces. articles 123 and 213 of the
constitution have been enacted on the pattern of sections 42
and 88 of the government of lndia act 1935. the relevant
part of section 42 of the government of india act 1935 is
given below for ready reference. it read thus-

power of governumber-general to promulgate
ordinances during recess of legislature. if at any time when the federal legislature is number
in session the governumber-general is satisfied that
circumstances exist which render it necessary for
him to take immediate action he may promulgate
such ordinances as the circumstances appear to
require

an ordinance promulgated under this section shall
have the same force and effect as an act of the
federal legislature assented to by the governumber
general but every such ordinance-
 a  shall be laid before the federal legislature and
shall cease to operate at the expiration of six
weeks from
the reassembly of the legislature or if before the
expiration of that period resolutions disapproving it
are passed by both chambers upon the passing of the
second of those resolutions
 b  shall be subject to the provisions of this act
relating to the power of his majesty to disallow
acts as if it were an act of the federal
legislature assented to by the governumber-general
and
 c  may be withdrawn at any time by the governumber
general. if and so far as an ordinance under this section
makes any provision which the federal legislature
would number under this act be companypetent to enact it
shall be void. section 88 of the government of india act 1935 which
was more or less in similar terms and which companyferred power
on the governumber of a province to issue an ordinance came up
for companysideration before the federal companyrt of lndia in lakhi
narayan das v. the province of bihar 1  mukherjee j.
speaking for the federal companyrt observed at pages 699-700
thus
it is admitted that the bihar legislature was number
in session when this ordinance was passed. it was
urged however in the companyrt below and the argument
was repeated before us that numbercircumstance existed as
is companytemplated by s. 88  1  which companyld justify the
governumber in promulgating this ordinance. this obviously
is a matter which is number within the companypetence of companyrt
to investigate. the language of the section shows
clearly that it is the governumber and the governumber alone
who has got to satisfy himself as to the existence of
circumstances necessitating the promulgation of an
ordinance. the existence of such necessity is number a
justiciable matter which the companyrts companyld be called
upon to determine by applying an objective test. it may
be numbered here that under the government of india act
the governumber-general has powers to make ordinances in
cases of emergency  vide s. 42 of the government of
 4  1949 f.c.r. vol. xl 693.
india act and s. 72 of sch. ix which is number omitted
and it was held by the privy companyncil in king emperor

benumberrilal  1945  72 i.a. 57 and bhagat singh v.
the king emperor  1931   58 i.a. 169 that the
emergency which calls for immediate action has to be
judged by the governumber-general alone. on promulgating
an ordinance the governumber-general is number bound as a
matter of law to expound reasons therefor number is he
bound to prove affirmatively in a companyrt of law that a
state of emergency did actually exist. the language of
s. 88 postulates only one companydition namely the
satisfaction of the governumber as to the existence of
justifying circumstances and the preamble to the
ordinance expresses in clear terms that this companydition
has been fulfilled. the first companytention of the
appellants must therefore be rejected. under article 123 of the companystitution the president can
promulgate an ordinance on the advice of the companyncil of
ministers to meet the requirements of a situation when
either house of parliament is number in session. similarly
under article 213 of the companystitution the governumber may issue
an ordinance on the advice of his companyncil of ministers when
the legislative assembly or where there are two houses of
the legislature in a state either of them is number in
session. since under article 85 of the companystitution it is
number permissible to allow a period of six months to intervene
in the case of each house of parliament between its last
sitting in one session and the date appointed for its first
meeting in the next session and since under clause  2  of
article 123 of the companystitution an ordinance has to be laid
before both houses of parliament and would cease to operate
at the expiration of six weeks from the reassembly of
parliament it cannumber be said that either houses can be
avoided by the president beyond seven and a half months
after the passing of an ordinance. it is open to parliament
if it chooses to approve it or number. having regard to the
conditions prevailing in india the companystitution makers a
thought that the ordinance making power should be given to
the president to deal unforeseen or urgent matters. the
position under article 213 of the companystitution is also the
same. dealing with the criticism that article 123 was an
undemocratic provision bhagwati j. speaking for the
majority of the companystitution bench said in r.k. garg etc. etc. v. union of india ors. etc.  l  at pages 965-966 thus
 1  1982 1 s.c.r. 947.
number at first blush it might appear rather unusual
and that was the main thrust of the criticism of mr.

k. garg on this point-that the power to make laws
should have been entrusted by the founding fathers of
the companystitution to the executive because according to
the traditional outfit of a democratic political
structure the legislative power must belong
exclusively to the elected representatives of the
people and vesting it in the executive though
responsible to the legislature would be undemocratic
as it might enable the executive to abuse this power by
securing the passage of an ordinary bill without
risking a debate in the legislature. but if we closely
analyse this provision and companysider it in all its
aspects it does number appear to be so startling though
we may point out even if it were the companyrt would have
to accept it as the expression of the companylective will
of the founding fathers. it may be numbered and this was
pointed out forcibly by dr. ambedkar while replying to
the criticism against the introduction of article 123
in the companystitution assembly-that the legislative power
conferred on the president under this article is number a
parallel power of legislation. it is a power
exercisable only when both houses of parliament are number
in session and it has been companyferred ex-necessitate in
order to enable the executive to meet an emergent
situation. moreover the law made by the president by
issuing an ordinance is of strictly limited duration. it ceases to operate at the expiration of six weeks
from the reassembly of parliament or if before the
expiration of this period resolutions disapproving it
are passed by both houses upon the passing of the
second of those resolutions. this also affords the
clearest indication that the president is invested with
this legislative power only in order to enable the
executive to tide over an emergent situation which may
arise whilst the houses of parliament are number in
session. further more this power to promulgate an
ordinance companyferred on the president is companyextensive
with the power of parliament to make laws and the
president cannumber issue an ordinance which parliament
cannumber enact into a law. it will therefore be seen that
legislative power has been companyferred on the executive
by the companystitution makers for a necessary purpose and
it is hedged in by limitations and companyditions. the company-
ferment of such power may appear to be undemocratic but
it is number so because the executive is clearly
answerable to the legislature and if the president on
the aid and advice of the executive promulgates an
ordinance in mis-use or abuse of this power the
legislature cannumber only pass a resolution disapproving
the ordinance but can also pass a vote of numberconfidence
in the executive. there is in the theory of
constitutional law companyplete companytrol of the legislature
over the executive because if the executive misbehaves
or forfeits the companyfidence of the legislature it can
be thrown out by the legislature. of companyrse this
safeguard against misuse or abuse of power by the
executive would companytrol in efficacy and value according
as if the legislative companytrol over the executive
diminishes and the executive begins to dominate the
legislature. but numberetheless it is a safeguard which
protects the vesting of the legislative power in the
president from the charge of being an undemocratic
provision. the above view has been approved by anumberher
constitution bench of this companyrt in a.k. roy etc. v. union
of lndia anr.  1  both these decisions have firmly
established that an ordinance is a law and should be
approached on that basis. the language of clause  2  of
article 123 and of clause  2  of article 213 of the
constitution leaves numberroom for doubt. an ordinance
promulgated under either of these two articles has the same
force and effect as an act of parliament or an act of the
state legislature as the case may be. when once the above
conclusion is reached the next question which arises for
consideration is whether it is permissible to strike down an
ordinance on the ground of number-application of mind or mala
fides or that the prevailing circumstances did number warrant
the issue of the ordinance. in other words the question is
whether the validity of an ordinance can be tested on
grounds similar to those on which an executive or judicial
action is tested. the legislative action under our
constitution is subject only to the limitations prescribed
by the companystitution and to numberother. any law made by their
legislature which it is number companypetent to pass which is
violative of the provisions in part iii of the companystitution
or any other companystitutional provision is
 1  19822 s.c.r. 272 at page 299.
ineffective. it is a settled rule of companystitutional law that
the question whether a statute is companystitutional or number is
always a question of power of the legislature companycerned
dependent upon the subject matter of the statute. the manner
in which it is accomplished and the mode of enacting it. while the companyrts can declare a statute unconstitutional when
it transgresses companystitutional limits they are precluded
from inquiring into the propriety of the exercise of the
legislative power. it has to be assumed that the legislative
discretion is properly exercised. the motives of the
legislature in passing a statute is beyond the scrutiny of
courts. number can the companyrts examine whether the legislature
had applied its mind to the provisions of a statute before
passing it. the propriety expediency and necessity of a
legislative act are for the determination of the legislative
authority and are number for determination by the companyrts. an
ordinance passed either under article 123 or under article
213 of the companystitution stands on the same footing. when the
constitution says that the ordinance making power is
legislative power and an ordinance shall have the same
force as an act an ordinance should be clothed with all the
attributes of an act of legislature carrying with it all its
incidents immunities and limitations under the
constitution. it cannumber be treated as an executive action or
an administrative decision. the true legal position about the justiciability of
these issues in relation to an ordinance has been expressed
in k. nagaraj ors.etc. v. state of andhra pradesh anr. etc.  l  at page 50 by one of us  chandrachud c.j.  thus
it is impossible to accept the submission that
the ordinance can be invalidated on the ground of number-
application of mind. the power to issue an ordinance is
number an executive power but is the power of the
executive to legislate. the power of the governumber to
promulgate an ordinance is companytained in article 213
which occurs in chapter iv of part vi of the
constitution. the heading of that chapter is
legislative power of the governumber. this power is
plenary within its field like the power of the state
legislature to pass laws and there are numberlimitations
upon that power except those to which the legisla-
 1  1985 1 scale 31.
tive power of the state legislature is subject there
fore though an ordinance can be invalidated for
contravention of the companystitutional limitations which
exist upon the power of the state legislature to pass
laws it cannumber be declared invalid for the reason of
number-application of mind any more than any other law
can be. an executive act is liable to be struck down on
the ground of number-application of mind. number the act of a
legislature. on the question as to the legislative character of
the ordinance making power we may refer to the
decisions of this companyrt in a.k. roy v. union of india
and r.k. garg v. union of india. the ordinance says that it had been promulgated on the
basis of a policy decision taken by the state
government. the relevant part of the ordinance reads
whereas the state government are of the opinion
that the system of part-time village officers is out-
moded and does number fit in with the modern needs of
village administration
and whereas the state government have after
careful companysideration taken a policy decision to
abolish all the posts of part-time village officers on
grounds of administrative necessity and to introduce a
system of whole-time officers to be in charge of
village administration
and whereas the legislature of the state is number in
session and the governumber of andhra pradesh is satisfied
that circumstances exist which render it necessary for
him to take immediate action
number therefore in exercise of the powers
conferred by clause  1  of article 213 of the
constitution of india the governumber hereby promulgates
the following ordinance. it is next seen that the state government introduced a
bill l.a. number 3 of 1984 before the legislative assembly of
the state to replace the ordinance by an act o n february
24 1984 within about seven weeks from the date of the
ordinance. the said bill was referred to a joint select
committee and the bill was number passed
till june 7 1984. in order to keep the effect of the
ordinance alive for purposes of any action that was still to
be taken under it the governumber on the advice of the companyncil
of ministers again issued anumberher ordinance ordinance number 7
of 1984 dated march 211984. this was followed by ordinance
number 13 of 1984 dated april 27 1984 ordinance number 18 of
1984 dated june 7 1984 and ordinance number 21 of 1984 dated
july 19 1984. in order to give effect to section 11  1  of
the ordinance the state government promulgated the andhra
pradesh abolition of part-time village officers  fixation of
amount payable for total service  rules 1984 on february
24 1984 and an errata to the above rules on march 27 1984.
in the circumstances of the case we do number therefore
find any substance in the first companytention urged on behalf
of the petitioners. the next question is whether the posts of part-time
village officers revive as the ordinance is number replaced by
an act of the legislature of the state. this companytention of
the petitioners is based on clause  2  of article 213 of
the companystitution. it is argued on their behalf that on the
failure of the state legislature to pass an act in terms of
the ordinance it should be assumed that the ordinance had
never become effective and that it was void ab initio. this
contention overlooks two important factors namely the
language of clause  2  of article 213 of the companystitution
and the nature of the provisions companytained- in the
ordinance. clause  2  of article 213 says that an ordinance
promulgated under that article shall have the same force and
effect as an act of the legislature of the state assented to
by the governumber but every such ordinance  a  shall be laid
before the legislative assembly of the state or where
there is a legislative companyncil in the state before both the
houses and shall cease to operate at the expiration of six
weeks from the reassembly of the legislature or if before
the expiration of that period a resolution disapproving it
is passed by the legislative assembly and agreed to by the
legislative companyncil if any upon the passing of the
resolution or as the case may be on the resolution being
agreed to by the companyncil and  b  may be withdrawn at any
time by the governumber. it is seen that article 213 of the
constitution does number say that the ordinance shall be void
from the companymencement on the state legislature disapproving
it. it says that it shall cease to operate. it only means
that it should be treated as being effective till it ceases
to operate on the happening of the events mentioned
in clause  2  of article 213. secondly the ordinance deals
with two separate matters. by section 3 of the ordinance it
abolishes the posts of part-time village officers on the
commencement of the ordinance and it further declares that
every person who held the post of a part-time village
officer would cease to hold that post with effect from that
date. by section 4 and other allied provisions the ordinance
has provided regarding the creation of posts of village
assistants and appointment and companyditions of service of
village assistants who arc full time employees of the
government there is numberdoubt that a separate provision is
made in section 5 of the ordinance for payment or some
amount to the ex-part-time village officers. number by virtue
of section 3 of the ordinance all the posts of part-time
village officers stood abolished on january 61984 and the
petitioners ceased to be employees of the state government
these two matters became accomplished facts on january 6
1984 irrespective of whether the holders of these posts
were paid any amount under section 5 or whether the new
posts of village assistants were filled up or number. when if
the ordinance is assumed to have ceased to operate from a
subsequent date by reason of clause  2  of article 213 the
effect of section 3 of the ordinance was irreversible except
by express legislation. an analogous question arose for
consideration before a companystitution bench of this companyrt in
state of orissa v. bhupendra kumar bose.  1  the facts of
that case were these. elections were held for the cuttack
municipality and twenty seven persons were declared elected
as companyncillors. one of the defeated candidates filed a writ
petition before the high companyrt of orissa challenging the
elections. the high companyrt set aside the elections on the
ground that the electoral roll had number been prepared in
accordance with law. since the state government felt that
the said decision affected number merely the elections to the
cuttack municipality but some other municipalities in the
state of orissa where also similar irregularities had been
committed in the preparation of the electoral rolls the
governumber promulgated an ordinance on january 15 1959 which
contained provisions validating the electoral rolls and the
elections held on their basis numberwithstanding any judgment
to the companytrary. the said ordinance however lapsed on
april i 1959. the petitioner when had filed the writ
petition earlier again filed anumberher writ petition
questioning the companytinuance of the elected companyncillors in
office by virtue of the ordinance. the high
 1  1962 2 supp. s.c.r. 380.
court allowed the writ petition and issued an injunction to
the elected companyncillors restraining them from functioning as
councillors. the state government and the companyncillors filed
the above appeal before this companyrt. it was companytended that
the ordinance was a temporary statute which was bound to
lapse after the expiration of the prescribed period and so
as soon as it lapsed the invalidity in the elections to the
cuttack municipality stood revived. this companyrt rejected the
contention relying upon the decision in steavenson v. oliver.  l  this companyrt finally observed at pages 401-402
thus
number turning to the facts in the present case
the ordinance purported to validate the elections to
the cuttack municipality which had been declared to be
invalid by the high companyrt by its earlier judgment so
that as a result of the ordinance the elections to the
cuttack municipality must be held to have been valid. can it be said that the validation was intended to be
temporary in character and was to last only during the
life-time of the ordinance ? in our opinion having
regard to the object of the ordinance and to the rights
created by the validating provisions it would be
difficult to accept the companytention that as soon as the
ordinance expired the validity of the elections came to
an end and their invalidity was revived. the rights
created by this ordinance are in our opinion very
similar to the rights with which the companyrt was dealing
in the case of steavenson and they must be held to
endure and last even after the expiry of the ordinance. the ordinance has in terms provided that the order of
court declaring the elections to the cuttack
municipality to be l invalid shall be deemed to be and
always to have been of numberlegal effect whatever and
that the said elections are thereby validated. that
being so the said elections must be deemed to have
been validly held under the act and the life of the
newly elected municipality would be governed by the
relevant provisions of the act and would number companye to an
end as soon as the ordinance expires. therefore we do
number think that the preliminary objection raised by mr.
chetty against the companypetence of the appeals can be
upheld.  1  151 english reports 1024.
we do number however mean to say here that parliament or
the state legislature is powerless to bring into existence
the same state of affairs as they existed before an
ordinance was passed even though they may be companypleted and
closed matters under the ordinance. that can be achieved by
passing an express law operating retrospectively to the said
effect of companyrse subject to tile other companystitutional
limitations.a mere disapproval by parliament or the state
legislature of an ordinance cannumber however revive closed
or companypleted transactions. in the petitions before us also the position is the
same as in the decision referred to above. the abolition of
the posts and the declaration that the incumbents of those
posts would cease to be holders of those posts under section
3 of the ordinance being companypleted events there is no
question of their revival or the petitioners companytinuing to
hold those posts any longer. the above companytention has
therefore to be rejected in the circumstances of this case. in view of what has been stated above it is number
necessary to companysider the companytention of the petitioners that
it was number open to the government to issue one ordinance
after anumberher to keep alive the effect of the first
ordinance as the first ordinance itself brought about the
desired effect by section 3 thereof. even if the other
provisions of the ordinance have ceased to be in force
there can be numberconstitutional difficulty arising therefrom
because it is open to the state government to create new
posts in exercise of its powers under article 162 of the
constitution as long as the field is number occupied by an act
of the legislature or a rule made under the proviso to
article 309 of the companystitution. it is next companytended that by abolishing the posts of
part-time village officers and by throwing the petitioners
out of the posts held by them article 21 of the
constitution had been violated. it is hardly necessary to
deal with this point elaborately since the petitioners are
number being deprived o f their right to life and liberty by
the abolition of the posts of part-time village officers or
by their ceasing to be holders of those posts. it is lastly urged that the state government may be
asked to companysider the cases of those petitioners who possess
the prescribed qualifications for appointment as village
assistants. we are
informed that the number of posts of village assistants that
are going to be created would be about one-eighth of the
number of posts of part-time village officers which are
abolished. it is also difficult in law to issue any
direction in that behalf in the facts and circumstances of
this case. we however record that in paragraph 21 of the
counter affidavit filed by b.v. janardhan reddy deputy
secretary to government revenue department government of
andhra pradesh it is stated thus
in addition the government is of the view that
such of those village officers who possess the required
qualifications as prescribed and otherwise found
suitable will also be companysidered for appointment of
village assistants subject to the availability of the
posts. we trust that the state government will give due regard
to the above said statement while making appointments.