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Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     25 April 2013

Constitutional (97th amendment): declared ultra vires

Dear All,
 


Kindly read Attached file pertaining to:

HEMANT AGARWAL's Analysis on:
Gujarat HC order verses the MCS (Amendment) Ordinance, 2013

 


Also find attached the Gujarat HC order.

 

CONCLUSIVELY, the articles namely 243-ZH to 243-ZT defined in Constitutional (97th Amendment) Act is now "Null & Void", which also means that the amendments in the MCS Act of 1960, vide the MCS (Amendment) Ordinance, 2013, is also "Null & Void", which further also means that the much hyped new Bye-Laws, as formulated by the Coop. Registrars, need not be adopted since such new bye-laws were based on MCS (Amendment) Ordinance, 2013, which in turn was based on definition-articles namely 243-ZH to 243-ZT (Constitution [97th amendment] Act, 2011), which is now declared as "Ultra Vires". Therefore any adopted bye-law based on the said Constitution [97th amendment] Act, 2011, is also "Null & Void".



Keep Smiling .... Hemant Agarwal



Learning

 8 Replies

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     26 April 2013

Seems that the files were not uploaded properly.  Hence Attaching the Analysis file once again.

HEMANT AGARWAL's Analysis on:
Gujarat HC order verses the MCS (Amendment) Ordinance, 2013

Keep Smiling .... Hemant Agarwal


Attached File : 92103391 analysis - gujarat hc order vs mcs (amendment) ordinance 2013.pdf downloaded: 461 times

N.K.Assumi (Advocate)     26 April 2013

Thanks Hemant, for posting the Classic Judgment.

Anjuru Chandra Sekhar (Advocate )     05 May 2013

Article 13 (4) is void too

 

Original Constitution as it stood in 1950

 

AMENDMENT OF THE CONSTITUTION

 

368. An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:

 

Provided that if such amendment seeks to make any change in-

(a) article 54, article 55, article 73, article 162 or article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

 

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States specified in Parts A and B of the First Schedule by resolutions to the effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

 

After amendment to 368:

 

368. Power of Parliament to amend the Constitution and procedure
therefor.

 

(1) Notwithstanding anything in this Constitution,
Parliament may in exercise of its constituent power amend by way of
addition, variation or repeal any provision of this Constitution in
accordance with the procedure laid down in this article.]


(2) An amendment of this Constitution may be initiated only by
the introduction of a Bill for the purpose in either House of
Parliament, and when the Bill is passed in each House by a majority of
the total membership of that House and by a majority of not less than
two-thirds of the members of that House present and voting, _352[ it,
shall be presented to the President who shall give his assent to the
Bill and thereupon] the Constitution shall stand amended in accordance
with the terms of the Bill:

 

Provided that if such amendment seeks to make any change in-


(a) article 54, article 55, article 73, article 162 or article 241, or


(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part
XI, or


(c) any of the Lists in the Seventh Schedule, or


(d) the representation of States in Parliament, or


(e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States _353*** by resolutions to that
effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

 

(3) Nothing in article 13 shall apply to any amendment made under this article.

 

(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground.

 

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

 

 

 

Article 13 as it stood originally in 1950

 

13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

 

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

 

(3) In this article, unless the context otherwise requires,--

 

(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

 

Article 13 after amendments

 

13. Laws inconsistent with or in derogation of the fundamental rights.- (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

 

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

 

(3) In this article, unless the context otherwise requires,-


(a) "law" includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the
force of law;
(b) "laws in force" includes laws passed or made by a Legislature or
other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then
in operation either at all or in particular areas.

 

(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.

 

This is how government created power for Parliament to do anything with Constitution including making amendments to Fundamental rights (Part III) by inserting Article 13(4)., when Article 13(2) clearly says :

 

2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

 

Hence Article 13(4) is void, because that clause takes away or abridges the rights conferred by Part III Fundamental rights and the Amendment Act made inserting Article 13(4) is in contravention with the Clause 13(2).  Hence not only 13(4), all laws made subsequently with the help of 13(4) are also void.

 

Hence all Judgments delivered by all Courts including Supreme court of India, based on Laws made with the help of insertion of Article 13(4) are also void.

1 Like

Radhakrishnan K.V. (Joint Registrar of co-operative societies (Rtd.))     06 May 2013

I do not agree with Mr.Hemant Agarwal on the validity of State co-operative Laws as amended in accordance with  the 97th Constitutional Amendment Act. The state can amend Co-operative law even in the absence of  97th CAA. MCS ordinance like any other State Co-operative law will remain in force unless Court declares it ultra vires to constitution. Gujarat HC verdict in no way will affect the amendments in state law as the State legislature is the authority to amend its laws. So the amendments in byelaws of the societies will not be affected by the judgment of Gujarat HC. 

Radhakrishnan K.V. (Joint Registrar of co-operative societies (Rtd.))     06 May 2013

Moreover Articles 19(1)(C) and 43B  inserted by 97th CAA were not quashed by the Gujarath HC and are still in force. Amendments in State Co-operative laws can be interpretted that those were enacted to make the State law in consonanace with the remnants of 97th CAA i.e. Articles 19(1)(C) and 43B. If the State Governmnet resort to such a stand there should be another verdicts to declare each and every amended provisions in state laws and byelaws to make it null and void. In short decision of Gujarat HC will not affect the State laws.

Anil Agrawal (Retired)     16 June 2013

The model bye laws have bee issued in pursuance of 97th Constitutional Amendjent. If the 9th Amendment itself is ultra vires of the Constitution, where is the question of these bye laws being valid?

These bye laws have not been issued under powers delegated to govt under MCS Act, 1960 but clearly under 97th Amendment.

These are ultra vires.

 

MODEL BYE – LAWS OF COOPERATIVE HOUSING SOCIETY

AS PER 97TH CONSTITUTIONAL AMENDMENT and MAHARASHTRA CO-OP. SOCIETIES (AMENDMENT)

ORDINANCE 2013 

Radhakrishnan K.V. (Joint Registrar of co-operative societies (Rtd.))     16 June 2013

Gujarat HC has not declared 97th Constitution Amendment Act as ultra vires as a whole. Articles 19)1)(c) and 43B added to to the constitution by 97th CAA  are still in force. Therefore my considered opinion is that  MODEL BYE – LAWS OF COOPERATIVE HOUSING SOCIETY AS PER 97TH CONSTITUTIONAL AMENDMENT and MAHARASHTRA CO-OP. SOCIETIES (AMENDMENT) ORDINANCE 2013 will not be affected by the verdict of Gujarat HC in so far as the provisions of the byelaws do not violate any of the provisions of  Constitution and MCS Act/ordinance.

vswaminathan   21 December 2014

A well-intended Feedback (but with a different stroke) HERE >

https://praja.in/en/blog/m...

Update – A Prelude <

UPDATE contd.

 

Recommended to hear what the former CJ of noted eminence said on judicial interpretation of the CONSTITUTION

SEE THE VIDEO OF THE PRESENTATION AT THE FIRM.MONEYCONTROL.COM. SEE ALSO Chief Justice Kapadia’s presentation


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