Sikkim High Court
Shakuntala Gurung vs State Of Sikkim And Ors on 18 November, 2021
Bench: Hon'Ble The Justice, Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
DATED : 18th November, 2021
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DIVISION BENCH : THE HON'BLE MR. JUSTICE BISWANATH SOMADDER, CHIEF JUSTICE
THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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WP(PIL) No.08 of 2021
Petitioner : Shakuntala Gurung
versus
Respondents : State of Sikkim and Others
Petition under Article 226 of the Constitution of India
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Appearance
Mr. Yam Kumar Subba, Advocate for the petitioner.
Mr. Sudesh Joshi, Additional Advocate General with Mr. Sujan
Sunwar, Assistant Government Advocate for the State-
respondents No.1 to 5 and 7.
Mr. Jorgay Namka, Advocate for the respondent No.6.
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JUDGMENT
Meenakshi Madan Rai, J.
1. What would be the consequence of a failure to place an
Ordinance before the Legislative Assembly in terms of Article
213(2)(a) of the Constitution of India (for short, the
"Constitution"), once the Legislative Assembly reassembles is the
short question that falls for determination herein.
2. The petitioner said to be a public spirited citizen and a
Voter of 10/Arithang-II Municipal Ward and Acting Vice President of
the Sikkim Democratic Front (Cheli Morcha) has filed the instant
writ petition alleging that the State-respondent No.1 has acted
contrary to the provisions of Article 213 of the Constitution while
amending the Sikkim Municipalities Act, 2007 by way of the Sikkim
Municipalities (Amendment) Act, 2021 (for short the "Amendment
Shakuntala Gurung vs. State of Sikkim and Others
Act of 2021"). Consequently the By-Election to the 10/Arithang-II
Municipal Ward cannot be held under the provisions of the said
Amendment Act of 2021. It was further urged that Elections to the
19 (nineteen) Wards of the Gangtok Municipal Corporation (for
short, the "GMC") held in March, 2021, is illegal and
unconstitutional in view of the Amendment Act of 2021 not
adhering to the provisions of Article 213 of the Constitution.
3. The crux of the case as can be culled out from the
averments of the petitioner is that on 30.11.2020, the Governor of
Sikkim promulgated the Sikkim Municipalities (Amendment)
Ordinance, 2020 (Ordinance No.04 of 2020) (for short, the
"Ordinance"), vide notification No.04/LD/20 issued by the State-
respondent No.5 (Law and Parliamentary Affairs Department) of
the same date, duly published in the Sikkim Government Gazette,
wherein amendments to sections 8 and 13 of the Sikkim
Municipalities Act, 2007 (for short, the "Act of 2007") were
inserted. By the said amendments, under clause (a) of section 8 of
the Act of 2007, the word "nineteen" was substituted for the word
"seventeen," while in section 13 of the Act, in the existing Table,
against Municipal Corporation, under the column "Maximum
Number" for the figure "17," the figure "19" was substituted. That,
pursuant thereto, the Public Notice No.352/UDD/2020, dated
30.11.2020, was issued by the State-respondent No.3 (Urban
Development Department), informing that the State Government
intended to insert the said amendments. That, the Fourth Session
of the Tenth Assembly of the Sikkim Legislative Assembly was held
on 11.01.2021 but the Ordinance dated 30.11.2020 allegedly was
not laid before the Sikkim Legislative Assembly despite being
Shakuntala Gurung vs. State of Sikkim and Others
bound by constitutional provisions and thereby ceased to operate
from 22.02.2021 on or before which date it ought to have been
placed before the Sikkim Legislative Assembly in view of clause
(2)(a) of Article 213 of the Constitution. Despite this circumstance
the State-respondent No.2 (State Election Commission) prepared
Electoral Rolls for 19 (nineteen) Wards of the GMC wherein election
were called vide notification No.19/Home/2021 dated 25.02.2021,
elections held on 31.03.2021 as per notification No.7/SEC/2021
dated 01.03.2021 and results declared on 03.04.2021. That,
reservation of seats were notified on 25.02.2021 in the various
local governing bodies. In the Fourth Session (Part II) of the Tenth
Assembly of the Sikkim Legislative Assembly, held on 26.03.2021,
the Sikkim Municipalities (Amendment) Bill 2021 (Bill No.07 of
2021) was introduced and duly considered and passed. The assent
of the Governor was obtained on 30.03.2021 and the Bill converted
to the Sikkim Municipalities (Amendment) Act, 2021 providing for a
"repeal and saving" clause thereby illegally clothing the Legislative
Assembly with powers to override Clause (2)(a) of Article 213 of
the Constitution. That, the said amendments are thus null and
void.
4. Learned counsel for the petitioner advancing his
arguments urged that despite the lapse of the Ordinance, the
Election to the 19 (nineteen) Wards of the GMC was held and the
Election Results declared in April, 2021. That, the repeal and
saving clause is in violation to the mandatory constitutional
provisions. That, an Ordinance is necessarily to be laid before the
Legislative Assembly before expiration of six weeks from the
reassembling of the Legislative Assembly. The subsequent election
Shakuntala Gurung vs. State of Sikkim and Others
of Mayor and Deputy Mayor followed by Oath Taking Ceremony on
04.05.2021 is non est in the eyes of law. That, the By-Election to
10/Arithang-II Municipal Wards also could not have been held on
22-09-2021 as per the Schedule prepared by the State-respondent
No.2 in view of the aforestated reasons. To buttress his
submissions, learned counsel garnered strength from the ratio in
Krishna Kumar Singh and Another vs. State of Bihar and Others 1
wherein it was observed by the Hon‟ble Supreme Court that the
laying of the Ordinance before Parliament or the State Legislature
is a mandatory constitutional obligation cast upon the Government
and failure to comply with such requirement, is a serious infraction
and abuse of the constitutional process. Hence, the prayers in the
writ petition.
5. Learned Additional Advocate General for the State-
respondents No.1 to 5 and 7, denying and disputing the allegations
put forth by counsel for the petitioner, contended that nothing
illegal or unconstitutional has emanated on the part of the State-
respondents besides which elections to the GMC have already been
held including the By-Election to 10/Arithang-II Municipal Wards.
That, vide notification No.07/L&PAD/2021, dated 30.03.2021, the
Amendment Act of 2021 received assent of the Governor. Clause
"4.(2)," the " repeal and saving" clause in the said Act clearly lays
down that the Ordinance shall be deemed to have been done or
taken in exercise of the power conferred by or under this Act as if
this Act was in force on the day on which such thing was done or
such action was taken.
(2017) 3 SCC 1
Shakuntala Gurung vs. State of Sikkim and Others
6. Learned counsel for the respondent No.6 relied on the
submissions advanced by the learned Additional Advocate General
and had no further arguments to place.
7. We have given due consideration to the submissions of
learned counsel for the parties and perused the averments in the
petition.
8.(i) A prolix discussion need not ensue in the instant
matter, neither is there a necessity for reiteration of facts as placed
before us, besides noting relevantly that admittedly elections to 19
Wards of the GMC were held on 31.03.2021 and By-Election to
10/Arithang-II Municipal Wards was held on 22.09.2021 during the
pendency of the instant matter and results declared.
(ii) Suffice it to note that on 30.11.2020, the Governor
promulgated the Sikkim Municipalities (Amendment) Ordinance,
2020 (Ordinance No.04 of 2020) vide notification No.04/LD/20 of
the same date, with the amendments as detailed hereinabove. The
Governor of the State draws Ordinance making powers under
Article 213 of the Constitution which empowers him to promulgate
Ordinance on urgent matters during recess of the Legislature. The
maximum validity of an Ordinance is six months and six weeks. An
Ordinance will expire after six weeks once the Legislative Assembly
is in session. However, Article 213 of the Constitution also provides
that the every Ordinance promulgated must be laid before the
State Legislature when it reassembles and would cease to operate
at the end of six weeks from the reassembly of the Legislature
which is required to uphold it, on failure of which, the Ordinance
would be rendered invalid. Since the power vested on the
Governor to issue Ordinances is an emergent power to be
Shakuntala Gurung vs. State of Sikkim and Others
exercised when the Legislature is not in session in order, to deal
with situations that require immediate action, it must necessarily
have a limited life. The Ordinance was issued on 30.11.2020, the
Fourth Session of the Tenth Assembly of the Sikkim Legislative
Assembly was held on 11.01.2021 and thus the Ordinance ceased
to exist on 22.02.2021, in view of the lapse of six weeks from the
reassembly of the Legislature. However, it is apposite to point out
here that regardless of this circumstance, notification
No.07/L&PAD/2021, dated 30.03.2021, was published vide Sikkim
Government Gazette bearing No.81 of the same date, which at
"4(2)" bore a "Repeal and saving" clause which specifically lays
down as follows;
"Repeal and 4. (1) ............
saving
(2) Notwithstanding such repeal,
anything done or any action taken in
exercise of the powers conferred by
or under that Ordinance shall be
deemed to have been done or taken
in exercise of the power conferred by
or under this Act as if this Act was in
force on the day on which such thing
was done or such action was taken."
(iii) Black's Law Dictionary, Tenth Edition, defines "saving
clause" as one generally used in a repealing act to preserve rights
and claims that would otherwise be lost. In Bennion on Statutory
Interpretation, Indian reprint, Sixth Edition, at page 676, "The saving"
provides as follows;
"A saving is a provision the intention of which is to
narrow the effect of the enactment to which it refers
so as to preserve some existing legal rule or right
from its operation.
................................................
............... A saving resembles a proviso, except that it
has no particular form. Furthermore it relates to an
existing legal rule or right, whereas the proviso is
usually concerned with limiting the new provision
made by the section to which it is attached. A saving
often begins with the words „Nothing in this [Act] shall
Shakuntala Gurung vs. State of Sikkim and Others
. . .‟ A saving may be qualified or conditional. Very
often a saving is unnecessary, but is put in ex
abundant cautela.
................................................
However, a saving may preclude an interpretation of
other provisions of the enactment that would interfere
with the subject matter of the saving. In other
words, if competing constructions of the other
provisions are open, the Court should adopt the
construction that give effect to, rather than detracts
form, the saving.
A saving is taken not to be intended to confer any
right which did not exist already.
........................................................."
(iv) In State of Punjab vs. Mohar Singh, Son of Pratap Singh2
the Supreme Court observed as follows;
"(6) Under the law of England, as it stood prior
to the Interpretation Act of 1889, the effect of
repealing a statute was said to be to obliterate it as
completely from the records of Parliament as if it had
never been passed, except for the purpose of those
actions, which were commenced, prosecuted and
concluded while it was an existing law : Vide Craies
on Statute Law, 5th edn, page 323. A repeal therefore
without any saving clause would destroy any
proceeding whether not yet begun or whether
pending at the time of the enactment of the Repealing
Act and not already prosecuted to a final judgment so
as to create a vested right : Vide Crawford on
Statutory Construction, pp. 599-600. To obviate such
results a practice came into existence in England to
insert a saving clause in the repealing statute with a
view to preserve rights and liabilities already accrued
or incurred under the repealed enactment.
Later on, to dispense with the necessity of
having to insert a saving clause on each occasion,
section 38(2) was inserted in the Interpretation Act of
1889 which provides that a repeal, unless the
contrary intention appears, does not affect the
previous operation of the repealed enactment or
anything duly done or suffered under it and any
investigation, legal proceeding or remedy may be
instituted, continued or enforced in respect of any
right, liability and penalty under the repealed Act as if
the Repealing Act had not been passed. Section 6 of
the General Clauses Act, as is well known, is on the
same lines as section 38(2) of the Interpretation Act
of England."
(v) Thus, from all of the above, it clearly emerges that the
object of a saving clause is to save the effect of what has been
AIR 1955 SC 84
Shakuntala Gurung vs. State of Sikkim and Others
previously done under the statute repealed. The result of such a
saving clause is that the pre-existing law continues to govern the
act done before a particular date from which the repeal of the pre-
existing law takes effect. Nothing unconstitutional emanates from
such an act of the Legislature.
(vi) Indeed, this Court is conscious and aware that the
Ordinance which has not been placed before the Legislature cannot
have the same force and effect as a law enacted by the Legislature
and thereby would be inconsequential. However, in view of the
"repeal and saving" clause in the Amendment Act of 2021, as
discussed supra, all other acts purported to have been done under
the Ordinance, thereby gain legal sanctity. In our considered
opinion, nothing further remains for adjudication in this matter.
9. Writ Petition, therefore, stands dismissed and pending
applications, if any, also stand disposed of accordingly.
( Meenakshi Madan Rai ) ( Biswanath Somadder )
Judge Chief Justice
18-11-2021 18-11-2021
Approved for reporting : Yes
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