01.

That the Petitioner had assailed the Constitutional validity of

Section 4 (b) of the first Ordinance by means of Writ Petition No.
30883 (M/B) of 2017 (Ajay Kumar Rai and Another v. State
of U.P. and Others).

02. That since both the Houses of the State Legislature re-assembled
on 14.12.2017, the first Ordinance was tabled in both the Houses
of the State Legislature and subsequently a Bill along the lines of
the Ordinance was tabled in the Legislative Assembly which was
passed by the Legislative Assembly. The Bill was thereafter
transmitted to the Legislative Council which in turn referred the
Bill to the Select Committee.

03. That due to lapse of six weeks after the reassembly of both the
Houses of the State Legislature, the first Ordinance ceased to
operate by virtue of Article 213 (2) (a) of the Constitution on
25.01.2018.

04. That on 25.01.2018, as soon as the first Ordinance lost its legal
effect, the Governor re-promulgated the Uttar Pradesh Co-
operative Societies (Amendment) Ordinance, 2018. A copy of the
Uttar Pradesh Co-operative Societies (Amendment) Ordinance,
2018 is already annexed as Annexure to the instant Writ
Petition.

05. That the Second impugned Ordinance is a verbatim reproduction

of the Uttar Pradesh Co-operative Society (Amendment)
Ordinance, 2017, the first Ordinance.

06. That the re-promulgation of an Ordinance is a fraud on the

Constitution and is impermissible as it amounts to subsuming the
power of law making from the Legislature and vesting it into to
the Executive. That in unequivocal words the Hon’ble Supreme
Court in Krishna Kumar Singh v. State of Bihar, (2017) 3
SCC 1 held that re-promulgation of Ordinance is a fraud on the
Constitution and a subversion of democratic legislative process.
The relevant extract of the Hon’ble Supreme Court judgment in
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1 is
reproduced hereinbelow for the kind convenience of this Hon’ble
Court:

59. Once the legislature has reconvened after the promulgation of an

ordinance, the Constitution presupposes that it is for the legislative body
in exercise of its power to enact law, to determine the need for the
provisions which the ordinance incorporates and the expediency of
enacting them into legislation. Once the legislature has convened in
session, the need for an ordinance is necessarily brought to an end
since it is then for the legislative body to decide in its collective wisdom
as to whether an ordinance should have been made and if so, whether a
law should be enacted.

60. A reasonable period is envisaged by the Constitution for the

continuation of an ordinance, after the reassembling of the legislature in
order to enable it to discuss, debate and determine on the need to enact
a law. Re-promulgation of an ordinance, that is to say the promulgation
of an ordinance again after the life of an earlier ordinance has ended, is
fundamentally at odds with the scheme of Articles 123 and 213. Re-
promulgation postulates that despite the intervening session of the
legislature, a fresh exercise of the power to promulgate an ordinance is
being resorted to despite the fact that the legislature which was in seisin
of a previously promulgated ordinance has not converted its provisions
into a regularly enacted law. What if there is an exceptional situation in
which the House of the legislature was unable to enact a legislation
along the lines of an ordinance because of the pressure of legislative
work or due to reasons? Would the satisfaction of the Governor on the
need for immediate action be arrived at for an act of re-promulgation,
after a legislative session has intervened?

61. Re-promulgation of ordinances is constitutionally impermissible

since it represents an effort to overreach the legislative body which is a
primary source of law making authority in a parliamentary democracy.
Re- promulgation defeats the constitutional scheme under which a
limited power to frame ordinances has been conferred upon the
President and the Governors. The danger of re-promulgation lies in the
threat which it poses to the sovereignty of Parliament and the state
legislatures which have been constituted as primary law givers under the
Constitution. Open legislative debate and discussion provides sunshine
 which separates secrecy of ordinance making from transparent and
accountable governance through law making.

105.8 Repromulgation of Ordinance is a fraud on the Constitution and a

subversion of democratic legislative process, as laid down in the
judgment of the Constitution Bench in D.C. Wadhwa v. State of Bihar,
(1987) 1 SCC 378.

07. That since the second impugned Ordinance is a fresh

promulgation, i.e. re-promulgation of the first Ordinance, the
same in light of the judgment of the Hon’ble Supreme Court in
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1 is a
fraud on the Constitution and hence is liable to be struck down.

08. That the re-promulgation of Uttar Pradesh Co-operative Society

(Amendment) Ordinance, 2017, through the second impugned
Ordinance, encroaches upon the law making power of the
Legislature and therefore goes against the democratic setup of
the Constitution.

09. That howsoever pressing the need of re-promulgation be the

Hon’ble Supreme Court in Krishna Kumar Singh v. Union of
India (2017) 3 SCC 1 held that repromulgation of an Ordinance
is Constitutionally impermissible as it endangers the Sovereignty
of the State Legislature which has been constituted as the
primary law givers under the Constitution.

10. That the fact that the Bill on the lines of the first Ordinance was
not put up to voting in the Legislative Council but was sent to the
Select Committee by the Legislative Council, establishes that the
Legislative Council felt the need of thorough scrutiny of the
provisions of the Bill and did not consider it appropriate to pass
the Bill in its current form.
11. That when in such a situation the same Ordinance is re-
promulgated, the provisions of which was not considered
appropriate by the Legislative Council (as the Bill on lines of the
first Ordinance was not passed by the Legislative Council but was
sent to the Standing Committee), the same amounts to hijacking
of the legislative process and hence such a re-promulgation is a
fraud on the Constitution as it severely impairs the legislative
functioning of the State Legislature.

12. That the Second impugned Ordinance like the first Ordinance
does not disclose any circumstance which rendered it necessary
for the Governor to re-promulgate the Ordinance. Moreover,
there cannot be said to be any urgency existing that would have
necessitated the promulgation of the second impugned
Ordinance because the Governor in exercise of his power
conferred upon by Article 174 (1) of the Constitution by order
dated 26.01.2018 summoned the Legislative Assembly for the
first session of the year 2018, commencing from 08.02.2018 by
notification dated 27.01.2018 and likewise summoned the
Legislative Council for the first session of the year 2018,
commencing from 08.02.2018 by order dated _______.

13. That in absence of any circumstance which rendered it necessary

for the Governor to re-promulgate the Ordinance, there cannot
be said to be any satisfaction of the Governor as required under
Article 213 of the Constitution. Hence the Second impugned
Ordinance is not validly promulgated and is liable to be set aside.

14. That besides the re-promulgation of the Ordinance being bad in

law, the Second impugned Ordinance, the moment it was
promulgated, ceased to operate as per the mandate contained in
Article 213 (2) (a) of the Constitution.
15. That Section 1 (2) of the second impugned Ordinance, though
re-promulgated on 25.01.2018, gives the second impugned
Ordinance a retrospective effect and provides that the Uttar
Pradesh Co-operative Societies (Amendment) Ordinance, 2018
shall be deemed to have come into force on 07.12.2017.

16. That it is not in dispute that the Ordinance can be given

retrospective effect, however it is submitted giving retrospective
effect to an Ordinance is circumscribed by the inherent limitation
contained in Article 213 (2) (a) of the Constitution of India.

17. That Article 213 (2) (a) of the Constitution envisages that an
Ordinance shall remain valid for a period of not more than six
weeks after the Legislature reassembles.

18. That Section 1 (2) of the second impugned Ordinance makes the
U.P. Co-operative Societies (Amendment) Ordinance, 2018
effective from 07.12.2017, which thereby means that on
07.12.2017, the Co-operative Societies (Amendment) Ordinance,
2018 was in force.

19. That on 14.12.2017, both the Houses of the State Legislature

reassembled and as the Second impugned Ordinance was in
force with effect from 07.12.2017, therefore as per the mandate
of Article 213 (2) (a) of the Constitution, the second impugned
Ordinance, which was already into effect before the Houses of
the State Legislature reassembled, could have remained valid
only till six weeks from the date of reassembly of both the
Houses of the State Legislature i.e. from 14.12.2017.

20. That since six weeks from the reassembly of the Houses of the
Legislature expired on 25.01.2018, the Second impugned
 Ordinance, which was into effect from 07.12.2017, ceased to
operate on 25.01.2018 and any action taken thereafter based on
the provisions of the Second impugned Ordinance is a nullity and
has no legal force.

21. That a holistic view of the aforesaid circumstances makes it clear

the entire process of Re-promulgation of the Ordinance is bad in
law, and hence the Second impugned Ordinance is liable to be
set aside in its entirety.

22. That however as regards to specific provision of the Second

impugned Ordinance, the instant Writ Petition only assails the
Constitutional validity of Section 4 (b) of the Second impugned
Ordinance which, like the first Ordinance, has inserted Clause 5
in Section 31A of the 1965 Act, whereby the power to transfer,
suspend and initiate disciplinary proceedings against the
employees of the Apex Co-operative Society has been vested
with the Managing Director who is nominated by the State
Government and is a Government Servant not below the rank of
Class I Officer.

…………………………………………………….. (Challenge to
Section 4 (b) of the Ordinance on the ground of
annihilation of autonomy)

23. That at this juncture it is submitted that since the first Ordinance
ceased to operate on 25.01.2018, the status quo ante, that is
the status prevailing before the promulgation of the first
Ordinance is required to be restored, as all the actions relatable
to the first Ordinance ceased to have any legal force in terms of
the law laid down by the Hon’ble Supreme Court in Krishna
Kumar Singh v. State of Bihar, (2017) 3 SCC 1 and S.R.
Bomai v. Union of India, (1994) 3 SCC 1.
24. That it is also pertinent to mention here that though the first
Ordinance had ceased to operate on 25.01.2018, the second
impugned Ordinance contained an otiose/redundant repeal and
saving clause, Section 5, which provided that the first Ordinance
by way of the Second impugned Ordinance is repealed and all
the actions taken under the first Ordinance shall be deemed to
have been taken under the Second impugned Ordinance.

25. That as on 25.01.2018, the first Ordinance ceased to operate

there could have been no repeal of the first Ordinance by way of
Section 5 of the Second impugned Ordinance and hence the
repealing clause is a redundant and otiose provision.

26. That it is submitted that all the actions taken under the First
Ordinance 2017 shall lose their effect as there is no provision in
the Constitution saving the rights, privileges, obligations and
liabilities that have arisen under the Ordinance which has ceased
to operate.

27. That though Section 5 of the Second impugned Ordinance saves

the acts done under the first Ordinance but the same runs
contrary to judgment of the Hon’ble Supreme Court in Krishna
Kumar Singh v. State of Bihar, 2017 (3) SCC 1, without
removing the basis of the judgment.

28. That the Hon’ble Supreme Court in Krishna Kumar Singh v.

State of Bihar, 2017 (3) SCC 1 held that rights or liabilities,
which are created during the tenure of a temporary law can be
made to subsist beyond the expiry of its term only by way of a
Legislation and not by way of an Ordinance. The relevant extract
of the judgment of the Hon’ble Supreme Court in Krishna
Kumar Singh v. State of Bihar, 2017 (3) SCC 1 is being
reproduced hereinbelow for the kind convenience of this Hon’ble
Court:

81. ……..There is a fundamental fallacy in equating an ordinance with a

temporary enactment. A temporary Act is a law which is enacted by the
legislature – Parliament or the state legislature – in exercise of its
plenary powers. While enacting a law, the legislature is entitled to define
the period during which the law is intended to operate. The legislature
decides whether the law will be for a limited duration or is to be
permanent. Hence, it lies perfectly within the realm and competence of
the legislature which enacts a temporary law to provide that the rights or
the liabilities which are created during the tenure of the law will subsist
beyond the expiry of its term. The legislature which has the competence
to enact a law unrestricted by tenure is equally competent to enact a
temporary legislation in which it can convey a legislative intent that the
rights or obligations which will be created will continue to subsist even
upon its expiry. An ordinance is not in the nature of a temporary
enactment. An ordinance is conditioned by specific requirements. The
authority to promulgate an ordinance arises only when the legislature is not in
session and when circumstances requiring emergent action exist. The
Constitution prescribes that an ordinance shall remain valid for a period of not
more than six weeks after the legislature reassembles and even within that
period, it will cease to operate if it is disapproved. Hence, the considerations
which govern law making by a competent legislature which has plenary
powers to enact a law cannot be equated with a temporary enactment.
The basic error, if we may say so with respect, in the judgment in
Bhupendra Kumar Bose lies in its placing an ordinance on the same
pedestal as a temporary enactment.

92. We have already expressed our reasons for coming to the conclusion
that the basic foundation upon which the decision of the Constitution
Bench in Bhupendra Kumar Bose rested is erroneous. The Constitution
Bench equated an ordinance with a temporary act enacted by the
competent legislature. This approach, with respect, fails to notice the
critical distinction between an enactment of a competent legislature and
an ordinance. The constitutional power of promulgating ordinances is
carefully conditioned by the requirements spelt out in Articles 123 and
213. The power is subject to limitations both of a durational and
supervisory character. The intent of the framers of the Constitution, as
reflected in the text of Article 123 and Article 213, is to subject to the
ordinance making power to Parliamentary control. The enduring rights
theory which was accepted in the judgment in Bhupendra Kumar Bose
was extrapolated from the consequences emanating from the expiry of a
temporary act. That theory cannot be applied to the power to frame
ordinances. Acceptance of the doctrine of enduring rights in the context
of an ordinance would lead to a situation where the exercise of power by
the Governor would survive in terms of the creation of rights and
privileges, obligations and liabilities on the hypothesis that these are of
an enduring character. The legislature may not have had an opportunity
 to even discuss or debate the ordinance (where, as in the present case,
none of the ordinances was laid before the legislature); an ordinance
may have been specifically disapproved or may have ceased to operate
upon the expiry of the prescribed period. The enduring rights theory
attributes a degree of permanence to the power to promulgate
ordinances in derogation of parliamentary control and supremacy. Any
such assumption in regard to the conferment of power would run
contrary to the principles which have been laid down in S R Bommai.

29. That thus while in exercise of plenary powers, the Legislature has
the competence to subsist rights that arise out of temporary law
even beyond the expiry of its term but the same cannot be done
by way of an Ordinance because of the critical distinction that
exists between an enactment of the legislature and an
Ordinance.

30. That by making the rights or liabilities arising during the currency
of an Ordinance subsist after its expiry, the same would lead to a
dangerous situation and will attribute a degree of permanence to
such acts, which will be in derogation of Parliamentary Control
and supremacy, clearly a situation not contemplated by the
Constitution and if any such power is conferred on the
Ordinance, as observed by the Hon’ble Supreme Court in
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1 it
will run contrary to the dictum of the Hon’ble Supreme Court in
S.R. Bomai v. Union of India, (1994) 3 SCC 1.

31. That evidently Section 5 of the Second impugned Ordinance by

providing that the actions taken under the Uttar Pradesh Co-
operative Societies (Amendment) Ordinance 2017, will be saved
by the Second impugned Ordinance goes beyond the power of
legislative exercise conferred on the Executive by way of
promulgation of Ordinance as it tends to attach a degree of
permanency to such acts.
32. That since Section 5 of the Second impugned Ordinance is in
clear violation of the law laid down by the Hon’ble Supreme Court
in Krishna Kumar Singh v. State of Bihar (2013) 3 SCC 1
and the basis of the judgment that is the fundamental difference
between the Ordinance and the Legislative Enactment is still
intact, the Executive was prohibited from enacting a law by way
of an Ordinance contrary to the binding nature of judgment of
the Hon’ble Supreme Court. Thus Section 5 of the Second
impugned Ordinance being unsustainable in the eyes of law is
liable to be struck down.

33. That as a necessary corollary all the actions taken under the
Uttar Pradesh Co-operative Societies (Amendment) Ordinance,
2017 subsequent to its repeal has no legal sanctity and the
position as was existing before the promulgation of the Uttar
Pradesh Co-operative Societies (Amendment) Ordinance, 2017 is
necessarily required to be restored.