R.K. BATTA, J.

The petitioner was Chief Minister of Goa when the Governor of Goa withdrew his pleasure and dismissed him vide Order dated 29th July, 1998 passed in exercise of powers vested under Article 164(1) and other enabling provisions of the Constitution of India. By another Order of the same date the Governor of Goa appointed Dr. Wilfred Anthony DSouza (respondent No. 3) as Chief Minister of Goa in the exercise of powers vested under Article 164(1) of the Constitution of India. Respondent No. 3 Dr. Wilfred DSouza as at that time Deputy Chief Minister of Goa. The petitioner seeks writ in the nature of certiorari or any other writ, direction or order or declaration that the said Orders bearing No. G/CM/98/258 (Exh.1) and No. G/CM/98/260 (Exh.P-16) both dated 29th July, 1998 be quashed and set aside

2. Brief events which led to the passing of the said Orders are required to be stated at this stage.

3. The petitioners case is;-

At the general elections held to Goa Legislative Assembly in 1994, Indian National Congress (INC) secured 18 seats out of total number of 40 Assembly seats. The petitioner was elected as INC candidate. Maharashtrawadi Gomantak Party (MGP) secured 12 seats, Bharatiya Janata Party (BJP) secured 4 seats, United Goans Democratic Party (UGDP) secured 3 seats and the remaining three seats went to the Independent. The Governor of Goa vide Order dated 16th December, 1994, by virtue of Clause(1) of Article 164 of the Constitution of India, appointed the petitioner as Chief Minister of the State of Goa and oath of office and secrecy was administered to him on 16th December, 1994. The Governor of Goa asked the petitioner to secure Vote of Confidence on the floor of the House on 13th January, 1995. In the meanwhile, there was split in the MGP and four members of MGP were admitted to INC Legislature Party. The strength of INC Legislature Party thus increased from 18 to 22. At a later stage, there was split in UGDP and one of the three elected members was admitted to INC Legislature Party. The strength of INC Legislature Party thus increased from 22 to 23.

4. In the Assembly session which was held in March, 1998, Vote On Account had been passed to provide for expenditure for four months from 1st April, 1998 till 31st July, 1998. The budget for the financial year 1998/99 had therefore to be passed on or before 31st July, 1998. The budget session was accordingly called with effect from 29th June, 1998 and was scheduled to conduct business both financial and otherwise until 31st July, 1998.

5. On 24th July, 1998 the remaining two members of UGDP were admitted to Congress Legislature Party, as a result of split in UGDP thereby raising the strength of Congress Legislature Party from 23 to 25. By Order dated 24-7-98, the President of Goa Pradesh Congress Committee, expelled five members from the primary membership of INC Legislature Party for indulging in anti party activities. The said members are Shri Chandrakant Chodanker, Shri Jagdish Govind Acharya, Shri Deo Mandrekar, Smt. Fatima DSa and Dr. Carmo Pegado. The strength of the INC Legislature Party was reduced from 25 to 20. Intimation of this expulsion was stated to be given to the Speaker of Goa Legislative Assembly on 25th July, 1998. Likewise, intimation is also given to the Speaker of the Goa Legislative Assembly of the admission of two members of UGDP to the INC Legislature Party.

6. The petitioner was orally informed on 27th July, 1998 by the Speaker of the Goa Legislative Assembly that he had received on that day letter dated 27-7-98 addressed by respondent No. 3 Dr. Wilfred D Souza and nine other members of INC Legislature Party stating that they had formed a separate group in Congress (Legislature Party) under the name of Goa Rajiv Congress Party (GRCP) under the leadership of respondent No. 3 Dr. Wilfred DSouza, M.L.A. who was at the relevant time Deputy Chief Minister of Goa. Amongst the said other nine members, four were Ministers in the cabinet of the Government of Goa and one Deputy Speaker of the Legislative Assembly of Goa. The Ministers, were Shri Dayanand Narvenker, Shri Subash Shirodkar, Shri Chandrakant Chodanker and Shri Carmo Pegado and Shri Deo Mandrekar was Deputy Speaker of the Legislative Assembly of Goa.

7. On 27-7-98 itself the petitioner obtained certified copy of the said letter (Exh. P.5) and filed petition before the Speaker for declaration that five out of ten members who had signed the letter and had not been expelled from INC Legislature Party, had become disqualified under Para 2 of the Tenth Schedule. These five members are Dr. Wilfred DSouza (respondent No. 3), Shri Dayanand Narvekar, Shri Subash Shirodkar, Shri Pandurang Bhatale and Shri Pandu Vasu Naik. Another petition for disqualification was filed by Dr. Wilfred Menezes Mesquita who is a member of INC Legislature Party before the Speaker on 27th July, 1988 for disqualification of all the ten members under Para 2 of the Tenth Schedule of the Constitution of India.

8. The petitioner and Dr. Mesquita had sought ad interim ex-parte orders seeking to restrain the said ten members from participating in Assembly proceedings and/or voting in the course of such proceedings pending decision on the disqualification application. The Speaker issued notices to the said ten members to appear before him on 28-7-98 at 12.00 noon to show cause why interim relief should not be granted. The said ten members did not appear before the Speaker and Dr. Mesquita moved an application pressing his prayer for ad interim ex-parte order. The Speaker granted ad interim ex-parte order at about 1.30 p.m. 28-7-98 on whereby he restrained the ten members form participating for the time being in the assembly proceedings and directed them to show cause on 29th July, 1998 at 10.00 a.m. as to why the ad interim ex-parte order should not be confirmed.

9. At 2.00 p.m. on 28th July, 1998 the petitioner received communication dated 28th July, 1998 from the Governor of Goa that he may immediately, in any event before 3.30 p.m. on the said day, seek a Vote of Confidence in the House and report to him the result thereof. The Speaker of Goa also received a message at 2.00 p.m. on 28-7-98 from the Governor of Goa under Clause (2) of Article 175 of the Constitution of India for consideration in the Legislative Assembly. The said message reads as under:-

"Dear Speaker,

After carefully considering the political developments in the State and having concern about the transaction of pending important financial and other business in the House, I, in terms of Clause (2) of Article 175 of the Constitution of India, hereby send the following , message for consideration in the Legislative Assembly.

"That the House may, on 28th July, 1998 before transacting any other business, consider and dispose of the following matters in the order indicated, namely-

(1) The Motion of Vote of Confidence in the Ministry headed by Shri Pratapsingh R.Rane;

(2) All stages of Motion or Motions for which notices have been given but not yet taken up:

(3) Passing of all the remaining budgetary demands;

(4) Passing of the Annual Appropriation Bill and also the Supplementary Appropriation Bill.

The proceedings for transacting business listed at items (1) and (2) above shall be completed before 7.00 p.m. on 28th July, 1998 and the remaining business before 7.00 p.m. on 30th July, 1998."

2. I have separately directed the Chief Minister to seek the Vote of Confidence in the Ministry headed by him, in the House today, before 3.30 p.m.

Yours Sincerely,

Sd/-"

10. The Assembly session commenced at 2.30 p.m. on 28th July, 1998 when the Speaker informed the House that he had passed ad interim orders restraining 10 members from participating in the Assembly proceedings for the time being. The Motion of Confidence as directed by the Government of Goa was moved at 3.30 p.m. and the petitioner won Vote of Confidence with 16 Members voting in favour and 13 members against. The votes of 10 members who were restrained were not taken into consideration. Accordingly, the Speaker as well as the petitioner informed the Governor that the petitioner had secured Vote of Confidence in the House.

11. On 29-7-98 at 10. 00 a.m. the application for disqualification of 10 members came up before the Speaker and on the request of the advocates for the said Members, the matter was adjourned to 31st July, 1998 at 4.30. p.m. and the ad interim ex-parte order was continued until further orders. On 29th July, 1998 the said ten members filed writ petitions before this Court challenging the legality and validity of ad interim ex parte order of the Speaker and the said order was set aside by this Court on 3rd August, 1998.

12. On 29-7-98 the budgetary demands were passed and the money bills were duly certified by the Speaker. The Assembly was adjourned till 2.30 p.m. on 30th July, 1998.

13. At 8.35 p.m. on 29th July, 1998 the petitioner received a copy of Order No. 4 /98/256 dated 29-7-98 passed by the Governor of Goa proroguing the Legislative Assembly with effect from the close of business on 29th July, 1998 in exercise of powers conferred by sub-clause (a) of Clause (2) Article 174 of the Constitution of India.

14. At about 8.40 p.m. on 29th July, 1998 the petitioner received the impugned order (Exh. P-1) of the Governor of Goa dated 29-7-98 purporting to withdraw his pleasure and dismissing the petitioner as Chief Minister of the State of Goa. On the same day the Governor of Goa in the exercise of powers vested under Article 164(1) of the Constitution of India appointed respondent No. 3 as the Chief Minister of the State of Goa vide Order dated 29-7-98 (Exh. P- 16) and administered him oath of office at about 10.00 p.m.

15. The said Orders (Exh. P-1 and Exh. P-16 ) have been challenged on various grounds including that there is no power under Article 164(1) or any other Article of the Constitution empowering the Governor to withdraw his pleasure and/or dismiss a Chief Minister of a State that the petitioner not only secured Vote of Confidence on the floor of the House on 28th July, 1998 but the budgetary demands for the financial year 1998/99 had also been passed; that the Governor has no powers to dismiss the Chief Minister unless and until the Legislative Assembly has unequivocally manifested Vote of Confidence or expressed No Confidence in the Council of Ministers headed by the Chief Minister and that the Governor could not lightly ignore the ex-parte ad interim order passed by Speaker. Besides this, the orders have also been challenged on the ground of mala fides on the part of the Governor of Goa and these grounds are contained under grounds (v) to (x). The mala fides alleged are that the Governor of Goa had identified himself with the cause and vested interest of ten members; that the petitioner was given only 1 hours time to seek Vote of Confidence; that the Governor was satisfied with the budgetary demands which were validly passed and in such eventuality could not have come to the conclusion that the Chief Minister had lost confidence of the House; that the Governor could not have prorogued the house, except on the advice of the Chief Minister/Council of Ministers and in proroguing the House he acted mala fide and without jurisdiction; that even though the petitioner was given hardly 1 hours time to seek Vote of Confidence on the floor of the House, respondent No. 3 has been given 21 days time for the said purpose; that the Governor of Goa was an active member of the B.J.P. prior to his appointment as Governor of Goa and the GRCP was being supported by four members of the BJP besides eight members of MGP. It is further alleged that the Governor acted in haste and the action was designed to get the petitioner out in order to install respondent No. 3 in Office and giving him sufficient time to enable him to resort to impermissible acts like horse trading.

16. The petitioner sought stay of Order (Exh. P-16) and for restraint on respondent No. 3 from functioning as Chief Minister of Goa and for an order to permit the petitioner to continue to exercise powers, of the Chief Minister.

17. When the matter came up on 5-8-98, the learned Advocates appearing on behalf of all the parties, agreed that the matter be finally heard at an early date and Rule be issued for 13th August, 1998. However, learned Senior Counsel Shri Parasaran, appearing on behalf of the petitioner, prayed for status quo and the learned advocate appearing on behalf of the Governor of Goa sought time for seeking instructions on that aspect alone. The matter was thus adjourned to 6th August, 1998 for considering the request made by the petitioner of status quo. On that day, learned Senior Counsel Shri S.K. Kakodkar, appearing on behalf of respondent No. 2, urged that the objections relating to maintainability be permitted to be raised at the time of hearing of the petition. In view of the above, rule was issued and the matter was finally heard on 13th and 14th August, 1998.

18. Affidavit has been filed on behalf of Governor of Goa by Shri Dharmendra Sharma, Secretary to the Governor of Goa, wherein it has been submitted that in view of the Constitutional provision including that of Article 361 of the Constitution, Governor of Goa ought not to have been made party in these proceedings, It is further submitted that without in any manner waiving his constitutional immunity, the Governor of Goa has out of deference to this Court, permitted him (Shri Dharmendra Sharma, Secretary to the Governor of Goa) to place before the Court the relevant documents, facts and circumstances as also to refute the incorrect and baseless allegations of mala fides in the Writ Petition. The same are:-

On 27th July, 1998, at about 10.00 a.m. Dr. Wilfred DSouza, respondent No. 3, along with others, called on the Governor and submitted copy of letter dated 27-7-1998 signed by Dr. Wilfred DSouza and 9 MLAs addressed to Speaker indicating the split in Congress (I) and the formation of Goa Rajiv Congress Party on 24-7-1998 wherein they requested for separate sitting arrangements; copy of letter date 27-7-1998 signed by Dr. Wilfred DSouza addressed to Governor informing about the split in the Congress (I) Party and formation of G.R.C.P. and enclosing letters of support from 8 MLAs of MGP, 4 MLAs of BJP and 1 Independent MLA and requesting the Governor to ask the petitioner to take Vote of Confidence on the floor of the House. Dr. Wilfred DSouza also handed over his letter of resignation from the Ministry as well as that of Dr. Carmo Pegado, Dayanand Narveker, Subhash Shirodkar and Chandrakant Chodanker from Rane Government, which are dated 27-7-1998. In all, 23 MLAs led by Dr. Wilfred DSouza had appeared before the Governor and requested him that action be taken against the petitioner who had lost majority. The governor told the said 23 MLAs to go to the House which was already in session and, if so advised, to move a Motion of No Confidence against the Rane Government.

19. On 27th July, 1998, a copy of Order purporting to have been passed three days before, i.e. on 24th July, 1998 was received on fax from Shri Shantaram Naik, President of Goa Pradesh Congress stating that 5 MLAs, namely, 1 Dr. Carmo Pegado, Shri Jagdish Govind Acharaya, Shri Deo Mandrekar, Smt. Fatima DSa and Shri Chandrakant Chodankar had been expelled from the party. On the same day at about 11.55 a.m. the petitioner met the Governor and submitted letter dated 24th July, 1998 requesting that 5 Ministers, namely, Dr. Wilfred D Souza, Dr. Carmo Pegado, Shri Dayanand Narvekar, Shri Subhash Shirodkar and Shri Chandrakant Chodankar be removed from his Cabinet as they no longer enjoyed his confidence.

20. On 27-7-1998, the proceedings in the Assembly were disrupted and the Speaker adjourned the House till 28-7-1998. Thereafter, 23 MLAs led by Dr. Wilfred DSouza met the Governor at 4.00 p.m. protested about deliberate stalling of proceedings by the Treasury Benches and the role of the Speaker in adjourning the House immediately so as to block the chances of their move of No Confidence and to rule out an imminent adverse vote on the financial demands listed for the day. On the same day, the Speaker met the Governor at 5.00 p.m. and informed him of his inability to conduct the proceedings of the House in view of the behaviour of the Treasury Benches. The Governor expressed his concern over the situation and asked him to submit a report of the proceedings, which was duly submitted by him.

21. On 27th July, 1998 itself, the petitioner called on the Governor at 7.00 p.m. in which meeting the Governor discussed with the petitioner the imperative of having a confidence vote, the question of non transaction of important and time bound financial business and the role of the Treasury Benches in stalling the proceedings of the House in the afternoon of 27-7-1998 as reported by the Speaker. The petitioner sought from the Governor time till 2.00 p.m. on 28-7-1998 to revert back to the Governor as to whether he is still commanding the majority and that in case he found that he no longer commanded majority, he would submit his resignation so as to avoid political stalemate and to ensure that the important and time-bound financial business was completed. This discussion took place in the presence of some Officers including Shri Dharmendra Sharma, Secretary to the Governor who has filed this Affidavit. The petitioner did not revert back to the Governor and filed petition against 5 MLAs under the Tenth Schedule seeking disqualification.

22. On 28-7-1998, at about 12 noon, G.R.C.P. MLAs presented a petition to the Governor that the two petitions for disqualification had been filed against them on 27-7-1998 and that the Speaker was likely to go ahead with the hearing of the disqualification petition on 28th July itself in an attempt to preempt their participation in the Vote of Confidence and as such they requested Governors intervention. Since the Governor did not receive any response from the Chief Minister, he issued directions under Article 175(2) of the Constitution to the Speaker, the text of which is already recorded in para 9 of this judgment.

23. Despite Governors directions the Speaker permitted question hour on 28-7-1998 and pronounced his ruling that 10 members of G.R.C.P. had been restrained from participating in the proceedings. The Chief Minister sent a fax message to the Governor that he had moved Motion of Confidence at 3.10 p.m. which was carried by Voice Vote. Simultaneously, a fax message came from the office of the Speaker saying that the Vote of Confidence by the Chief Minister was won by a division of 17:13 votes. A short while thereafter, another fax message was received from the Speaker saying that the Vote of Confidence was in fact carried with a division of 16:13. At 4.00 p.m. on 28-7-1998, the Governor received a signed petition from 23 MLAs stating that no Vote of Confidence occurred in the House and the proceedings were fictitious. The copy of the proceedings from the assembly reflected that 16 members voted in favour of Vote of Confidence and 23 members voted against. However, in view of the restraint injunction passed by the Speaker against 10 MLAs of G.R.C.P. the vote against the Motion of Confidence stood reduced to 13.

A letter from the Speaker was also received by the Governor. The budgetary demands and the money bill were passed after the 23 MLAs walked out of the House. The said 23 MLAs once again presented themselves before the Governor.

24. The allegations relating to mala fides have been vehemently denied in the Affidavit; that the allegation that the petitioner was required to seek Vote of Confidence within a short span of 1 and hour was incorrect; that the petitioner never complained of lack of sufficient time for that purpose; that it was the petitioner himself who had sought time on 27-7-1998 till 2.00 p.m. from the Governor; and that the contention of the petitioner that he had won the confidence by Voice Vote was falsified by the Assembly proceedings. It is also submitted in this Affidavit that the petitioner was fully aware of what had transpired on 27th July, 1998 which has already been stated in the previous Paragraphs of the Affidavit.

25. The respondent No. 3 Dr. Wilfred DSouza has filed Return wherein the stand taken is that the petition is not maintainable and is liable to be dismissed on various grounds including that in view of various provisions under Article 361 read with Article 163(2) of the Constitution of India, the jurisdiction of the Court to enquire into and adjudicate upon the validity or otherwise of the impugned action on the part of the Governor in dismissing the petitioner as Chief Minister as well as appointing the respondent No. 3 as Chief Minister is barred; that in terms of Article 163 and/or Article 164 of the Constitution it is the exclusive prerogative of the Governor to appoint Chief Minister, who, in the opinion of the Governor, commands confidence of the majority of the Members of the Legislative Assembly; that the exercise to ascertain the majority support which is based on assessment and subjective satisfaction of the Governor cannot be subject-matter of judicial review and there are no judicially manageable standards to adjudicate upon the correctness or otherwise of such assessment and subjective satisfaction of the Governor; that it is well settled that the courts would not enter into political thicket and that the Chief Minister holds the Office at the pleasure of the Governor. It is also alleged that the petition is based on false and anti-dated documents including the alleged expulsion order dated 24th July, 1998; the petitioner is guilty of suppression of material facts; that three different contradictory versions were placed before the Governor by the petitioner and the Speaker. The respondent No. 3 has submitted that on 24th July, 1998 at about 7.15 p.m. 10 Members of I.N.C. Legislature Party decided to split from the regional party to form a group known as Goa Rajiv Congress Party and elected Dr. Wilfred DSouza as leader of the group. Besides this, the respondent No. 3 has narrated the events which took place from 27-7-1998 onwards till the order of prorogation of the Goa Legislative Assembly was issued on 29-7-1998 and the impugned Orders in question were passed. It is not necessary to give these details since the said details have already been given by the petitioner as well as in the Affidavit filed by Shri Dharmendra Sharma, Secretary to the Governor and the same are already recorded in the earlier part of this judgment.

26. We shall first deal with the question of maintainability of the petition which has been raised by the respondents. Learned Senior Counsel, Shri Parasaran, for the petitioner, submitted before us that under Article 163 of the Constitution, the Governor acts on the aid and advice of the Council of Ministers headed by the Chief Minister, except for those cases where the Governor is required to exercise his functions or any of them in his discretion under the Constitution. He then pointed out instances where discretion is conferred of the Constitution under Article 371-A(1)(b)(f) of the Constitution to act in his individual judgment where the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in the exercise of his individual judgment. Our attention was then drawn to the judgment of the Apex Court in (Samsher Singh v. State of Punjab and another), A.I.R. 1974 S.C. 2192 : (1975)1 S.C.R. 814, and particularly to para 153 which states that the President and the Governor being custodians of all executive and other powers under various Articles of the Constitution are bound to exercise their formal Constitutional powers only upon and in accordance with the advice of their Ministers save in a few exceptional situations namely; (a) choice of Prime Minister (Chief Minister) restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of the Government which has lost its majority in the House but refuses to quit office and (c) dissolution of the House where an appeal to the country is necessitous although in this area the Head of the State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who eventually will take responsibility for the step. These are instances where the Governor does not act on the aid and advice of the Ministers, but he acts on his own discretion. Learned Senior Counsel emphasised that the dismissal of the Chief Minister is controlled by the consideration that the Chief Minister has lost his majority in the House.

27. The learned Senior Counsel then urged after placing reliance on Article 361 of the Constitution that the Governor shall not be answerable to any Court for the exercise and performance of powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of those powers and duties, but even in these cases appropriate proceedings can be instituted by a person aggrieved from the action of the Governor against the Government of a State in view of the second proviso to Article 361 of the Constitution. Placing reliance upon the judgment of the Apex Court in (S.R. Bommai and others v. Union of India and others), 1994(3) S.C.C. 1 : A.I.R. 1994 S.C. 1918, it was submitted that judicial review is a basic feature of the Constitution which cannot be done away with even by the exercise of Constituent power; that howsoever high a Constitutional functionary may be, the orders passed by such Constitutional functionary, are amenable to judicial review under the Constitution, that irrespective of whether immunity provided under Article 361 of the Constitution of India is attracted or not, the proceedings of such authority shall be open to judicial review and second proviso to Article 361 enables the institution of proceedings against the appropriate Government; that order of the Governor falling under Article 361(1) will be open to judicial review not only on the grounds of mala fides, but on grounds of ultra vires or unconstitutionality the immunity cannot operate to close the doors to judicial review and even if the constitutional functionary mentioned in Article 361 is not answerable to Court even on grounds of mala fides, the order will nevertheless be liable to judicial scrutiny if found to be bad in law. It is urged that inspite of the fact that the Chief Minister had been successful in getting Vote of Confidence in the Assembly, yet the Governor acted with mala fides and dismissed the petitioner and the writ petition is maintainable on the basis of alleged mala fides which has vitiated the order of dismissal of the petitioner and the said dismissal is null and void ab initio. It was also pointed out by learned Senior Counsel that the prorogation of the Assembly while it was in session without the advice of the Council of Ministers headed by the petitioner, is a clear instance of mala fides on the part of the Governor which method was adopted solely with a view to dismiss the petitioner and to install respondent No. 3 as the Chief Minister. In this behalf, reliance was placed on (State of Punjab v. Satya Pal Dang and others), A.I.R. 1969 S.C. 903 : 1969(1) S.C.R. 478. It is pointed out that no emergency had arisen to prorogue the Assembly on 29th July, 1998 when it was in session and the session was in fact to continue till 31st July, 1998. Learned Senior Counsel has drawn our attention to various Paragraphs from the judgment of the Apex Court in S.R. Bommat iand others v. Union of India and others (supra) and to the judgment of the Apex Court in (A.K. Kaul and another v. Union of India and another), A.I.R. 1995 S.C. 1403, where a Division Bench of the Apex Court has explained the judgment in Bommantis case. Our attention was specifically drawn to para 11 of A.K. Kauls case (supra) wherein distinction has been drawn between judicial review and justiciability of a particular action; that power of judicial review if implicit in written Constitution unless expressly excluded by provisions of the Constitution and to para 12 of the said judgment where the case of (State of Rajasthan and others v. Union of India), A.I.R. 1977 S.C. 1361 : 1977(3) S.C.C. 592, has been referred to wherein it was held that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds the Court would have jurisdiction to examine it because in that case there would be no satisfaction of the President in regard to the manner which is to be satisfied. Our attention was also drawn to para 20 in A.K. Kauls case (supra) wherein it has been pointed out that in Bommais case it has been held that the exercise of power under Article 356(1) is subject to judicial review and the majority view in the matter of justiciability of the satisfaction of the President is that it is justifiable and open to challenge on grounds, of mala fides or being based wholly on extraneous and/or irrelevant grounds. Reliance is also placed on the judgment of the Apex Court in (Mr. Vamuzo v. Union of India and others), 1988(2) G.L.J. 468, wherein it has been held that even in the absence of the Governor as a party to the proceedings where proclamation under section 356 is challenged, the Governors report can be subject-matter of scrutiny. It has been urged that in Bommais case where the Governor was not a party to the proceedings is was held that the Governor had acted in a mala fide manner.

28. On the basis of the above submissions, learned Senior Counsel for the petitioner, has urged before us that the writ petition is maintainable against the respondents even inspite of the provisions contained under Article 361 of the Constitution and the action of the Governor in dismissing the petitioner and appointing respondent No. 3 as the Chief Minister is subject to judicial review.

29. Learned Senior Counsel Shri Ashok Dessai, appearing on behalf of respondent No. 3, submitted that the questions which are required to be examined are:

(1) Whether the petition is maintainable, that is to say, whether the door can be open for review of the impugned orders passed by the Governor and

(2) How wide the doors should be open.

According to the learned Senior Counsel, the Orders passed by the Governor fall in four broad categories:

(i) The exercise of executive power in accordance with the provisions of the Constitution by or under the order of the Governor wherein full judicial review is available:

(ii) Order passed by the Governor on aid and advice of the Council of Ministers headed by Chief Minister wherein full judicial review is available.

(iii) Orders like grant of pardon under Article 161 and the Orders passed by the President on the report submitted by the Governor under Article 356 on account of which limited judicial review is available and

(iv) Where Governor acts without aid and advice of the Council of Ministers headed by Chief Minister and acts in his own discretion. He then made a reference to the judgment of the Apex Court in Samsher Singh v. State of Punjab and another, A.I.R. 1974 S.C. 2192 and particularly Para 153 in order to point out that the exceptional situations to the rule that the Governor acts on aid and advice of the Council of Ministers headed by Chief Minister are the choice of the appointment of the Chief Minister and the dismissal of the Government which has lost majority in the House in which cases the Governor acts in his sole discretion. Learned Senior Counsel then pointed out that in view of Article 361 as well as Article 163(2) the decision of the Governor pertaining to discretionary orders is not only final but cannot be subject matter of challenge in the Court. Reliance was placed on judgment of Madras High Court in (S. Dharmalingam v. His Excellency Governor of State of Tamil Nadu), A.I.R. 1989 Madras 48, in support of the aforesaid submissions. However, he agreed that where Governor acts on his own in passing discretionary (orders) the Government may not be answerable for such action and in such an eventuality the Governor would be a necessary party to such proceedings where the discretionary order of the Governor is subject matter of challenge. According to learned Senior Counsel the judgment in Bommais case (supra) is not attracted since the Apex Court in that case was dealing with the case of proclamation under section 356 of the Constitution wherein the satisfaction of the President is based not only on the report from the Governor but also on the basis of aid and advice from the Council of Ministers headed by the Prime Minister and other relevant material which may be available. Even in such cases, the Apex Court has held in Bommais case (supra) that only limited judicial review is permissible on grounds of mala fides illegality and irrationality. According to the learned Senior Counsel the impugned orders of dismissal of the petitioner and appointment of respondent No. 3 fall within the area of exclusive discretion of the Governor which are not subject to judicial review in view of Article 361 as well as under Article 163(2) of the Constitution and the immunity thereunder in respect of actions within the sole discretion of the Governor is absolute. He further submitted that the subjective discretion exercised by the Governor is also not justiciable for the want of judicially manageable standards. The petition should, therefore be dismissed as not maintainable.

30. Learned Senior Advocate Shri Sanghi, who appeared on behalf of the Governor of Goa stated that he adopts the arguments advanced by the learned Senior Counsel Shri Ashok Dessai and, in addition, submitted that the petition is not maintainable since the Governor is not answerable to any Court in respect of exercise and performance of powers and duties of his Office or for any act done or purported to be done by him in the exercise and performance of those powers and duties and in respect of such actions the aggrieved part is not left without any remedy but appropriate proceedings against the Government of a State can be brought by the aggrieved person. After placing reliance on Article 163(2) of the Constitution he has also pointed out that orders passed in his discretion by the Governor are not only final but the validity of anything done by the Governor cannot be called in question on the ground that he ought or ought not to have acted in his discretion. According to him, no fetters can be put on the discretion of the Governor on the choice and dismissal of the Chief Minister and if the choice is not correct there are inbuilt safeguards like floor test. He also placed reliance on the judgment of Madras High Court in S. Dharmalingam v. His Excellency Governor of State of Tamil Nadu (supra) wherein it was held that the immunity of the Governor with regard to action pertaining to his sole discretion is absolute and beyond the writ jurisdiction of the High Court. Reliance was also placed by him on A.K. Kaul and another v. Union of India and another, A.I.R. 1995 S.C. 1403. In support of his submission that the matter in question would not be justiciable due to want of judicially manageable standards. On the question prorogation of the House of the Governor, reliance was placed on State of Punjab v. Satya Pal Dang, A.I.R. 1969 S.C. 903 : 1969(1) S.C.R. 478.

31. It was next contended by learned Senior Counsel for the Governor of Goa that the petition is not maintainable even on grounds of mala fides alleged in the petition which are based upon inferences drawn by the petitioner without any basis whatsoever. Nevertheless, he insisted that even if this Court holds that the petition is not maintainable on grounds of mala fides, the Court should deal with the allegations of mala fides since it affects the Institution as such. In this connection, it was pointed out that the Governor of Goa ought not to have been made a party to the writ petition. However, without waiving his Constitutional immunity, the Governor of Goa, out of deference to this Court, had permitted his Secretary Shri Dharmendra Sharma to place relevant documents, facts and circumstances of the matter and also to refute the incorrect and baseless allegations of mala fides contained in the petition. He had argued at length that the Governor of Goa had acted in transparent and bona fide manner as would be apparent from the affidavit of the Secretary to the Governor. It was also pointed out by the learned Senior Counsel that no relief has been sought with reference to prorogation and the Assembly had been prorogued on account of transaction of all business which was before the Assembly and in view of the political scenario. He also pointed out that writ of certiorari would not lie and no writ of quo warranto has been sought.

32. Learned Senior Counsel Shri S.K. Kakodkar, appearing on behalf of respondent No. 2, urged that Article 361 read with Article 163(2) confer total immunity and do not admit of any exception as to the answerability of the Governor in respect of acts which fall within the sole discretion of the Governor. According to him, no judicial review of the impugned Orders is permissible and in support of this submission, reliance has been placed on (K.A. Mathialagan v. The Governor of Tamil Nadu), A.I.R. 1973 Mad. 198 [LQ/MadHC/1972/476] and (Mahabir Prasad Sharma v. Prafulla Chandra Ghose and others), A.I.R. 1969 Cal. 198 [LQ/CalHC/1968/19] . On the question of mala fides, it is submitted by him that the mala fides have not been pleaded on facts but only as grounds and as such the same cannot be looked into.

33. Learned Senior Counsel, Shri Parasaran, in reply urged that all rulings which are quoted in S. Dharmalingam v. His Excellency Governor of State of Tamil Nadu, A.I.R. 1989 Madras 48, deal with cases where no mala fides had been alleged. According to learned Senior Counsel there cannot be any immunity whatsoever for mala fide actions of the Governor performed under the Constitution be it discretionary or on the aid and advice of the Council of Ministers. After placing reliance on (Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and others), A.I.R. 1987 S.C. 294 : 1987(1) S.C.C. 227 it was urged that Caesars wife must be above suspicion and that the Court cannot be oblivious that there has been steady decline of public standards or public morals and public morale. Relying upon Halsburys Laws of England it was urged that the exercise of statutory power is invalid unless the repository of the power has acted honesty and in good faith. In this connection reliance was also placed on (S. Pratap Singh v. State of Punjab), A.I.R. 1964 S.C. 72, wherein the dictum of Lord Lindley in (General Assembly of the Free Church of Scotland v. Overtion), 1904 A.C. 515, was quoted that the power shall be used bona fidely for the purpose for which they are conferred. Shri Parasaran also referred to some passages from Sarkaria Commission Report on Centre State Relations on the question of role of Governor, choice of C.M., dismissal of C.M. and prorogation. Reliance was also placed on (P.V. Narashimha Rao v. State), 1998(4) S.C.C. 626 which deals with the question of immunity under Article 105(2) of M. Ps. liability, to any proceeding in any Court in respect of anything said or any vote given in the Parliament.

34. In further reply it was urged by learned Senior Counsel Shri Sanghi that in P.V. Narashimha Rao v. State (supra) the Apex Court has held that the alleged bribe takers are entitled to immunity as the alleged conspiracy and acceptance of bribe being in respect or had nexus with vote against no confidence motion. But the M.Ps. who despite having received the bribes pursuant to the conspiracy had abstained from voting, would not be entitled to such immunity since protection under Article 105(2) must relate to vote actually given. According to him, this ruling even if attracted, would not in any manner help the petitioner.

35. The moot question to be determined therefore is whether the petition is maintainable in the light of the provisions contained in Articles 361 and 163 of the Constitution.

Article 361(1) reads as under:

"The President, or the Governor or Rajpramukh of a State, shall not be answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporfing to be done by him in the exercise and performance of those powers and duties.

Provided that the conduct of the President may be brought under review by any Court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61 :

Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State."

Article 163 reads as under:-

"163. Council of Ministers to aid and advise Governor.---(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his function except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

(3) The question whether any, and if so what, advice was tendered by Ministers to Governor shall not be inquired into any Court."

Under Article 154 the executive power of the State vests in the Governor and is exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 163 provides for exercise of functions which are performed by the Governor on the aid and advise of the Council of Ministers with the Chief Minister at the head and besides that functions which are exercised by the Governor under the Constitution or any of them in his discretion. The functions which the Governor is required to perform in his discretion are independent of aid and advice of the Council of Ministers. Broadly speaking, it cannot be said that there are functions which the Governor performs on the aid and advice of the Council of Ministers and other functions which he performs in his discretion without the aid and advice of the Council of Ministers. Article 163(2) provides for finality to the decision of the Governor taken in his discretion and the validity of anything done by the Governor in this regard shall not be called in question on the ground that he ought not to have acted in his discretion. Article 361(1) provides that the President or the Governor or Rajpramukh of a State shall not be answerable to any Court for the exercise and performance of powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of powers and duties. The second proviso to Article 361(1) provides that in respect of such actions of the President or the Governor appropriate proceedings can be instituted by any person whose right is affected against the Government of India or Government of a State.

36. The maintainable of the petition is required to be examined after taking into account the nature of functions which the Governor exercises under the Constitution. The functions performed by the Governor can be broadly classified under four categories as has been rightly submitted by learned Senior Counsel Shri Ashok Dessai in respect of which there appears to be no difference of opinion on the part of any of the learned Counsel appearing in the matter except for (iv) category. The four categories are enumerated in para 29 of this Judgment.

37. The impugned orders with which we are concerned fall in the last category wherein the Governor exercises power of appointment and dismissal of a Chief Minister in his sole discretion. The Apex Court in Shamsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192 has laid down in paras 88 and 153 as under:-

"88. For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of Ministers in executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers. Where the Governor has any discretion the Governor acts on his own judgment. ....."

"153. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office : ....."

Thus, from the above it is clear that the "Governor for the purpose of appointment of the Chief Minister and for dismissal of the Government acts in his sole discretion and this discretion is restricted by the paramount consideration of command of majority in the House. The Apex Court in (R.K. Jain v. Union of India and others)14, A.I.R. 1993 S.C. 1769 has in para 56 laid down that the President while exercising the executive power under Article 73 read with Article 53, discharges such of these powers which are exclusively conferred to his individual discretion like appointing the Prime Minister under Article, 75 are not open to judicial review. Likewise, the appointment of Chief Minister under Article 164 is made on the sole discretion of the Governor and would therefore not be open to judicial review. In fact, various High Courts have taken the view that when certain functions are performed by the Governor under Article 163, in the exercise of his sole discretion, the immunity of the Governor is absolute and beyond the writ jurisdiction of the High Court. We shall therefore, briefly refer to the view taken by various High Courts in this respect.

38. The Madras High Court in S. Dharmalingam v. His Excellency Governor of State of Tamil Nadu (supra), was dealing with the case of appointment of Chief Minister, which was challenged. After taking into account the scheme of Chapter II, Part VI of the Constitution, the question which arose before the Madras High Court was whether having regard to the averments in the Affidavit, the Governor could be called upon to answer to the Court as to how he came to call on the second respondent to form the Ministry and how he arrived at that satisfaction. The power exercised by the Governor was examined and classified in three categories, namely, (i) the executive power in accordance with the provisions of the Constitution : (ii) the power exercised by him on the aid and advice of the Council of Ministers headed by the Chief Minister and (iii) sole discretion. It was found that in the appointment of the Chief Minister the power which came to be exercised by the Governor was wholly in his discretion and the Court could not interfere in the matter relating to discretion. The Madras High Court placed reliance on a judgment of the Calcutta High Court in (Madan Murari Verma v. Choudhari Charan Singh and another)15, A.I.R. 1980 Cal. 95 [LQ/CalHC/1979/278] wherein Sabyasachi Mukharji, J., as he then was, had held that in the appointment of Prime Minister, the Court could not sit in judgment on the political assessment of the President. It was held that in making a choice of the Prime Minister, the President has to act in his discretion and the President is not fettered in his choice except by his own assessment. Whether he was politically so justified or not is not a matter for this Court to determine.

39. The Madras High Court had also placed reliance on the ruling of the Apex Court in Samsher Singh v. State of Punjab and another (supra) and, particularly, para 153 which we have already quoted in the earlier part of this judgment. After reviewing the case law and other authorities on the subject, the Madras High Court had come to the following conclusions:-

"Certain powers are available to the Governor under Art. 163 which he could exercise in his sole discretion. With regard to the action pertaining to his sole discretion, the immunity of the Governor is absolute and beyond even the writ jurisdiction of the High Court. The power of the Governor with regard to the appointment of the Chief Minister is a power which falls in his sole discretion and therefore the Court cannot call in question the same."

40. In an earlier Judgment of the Madras High Court in (G. Vasantha Pai v. C.K. Ramaswamy), A.I.R. 1978 Madras 342, it has been laid down :-

"A combined reading of Arts. 154, 163 and 361(1) would show that the immunity against answerability to any Court is in respect of the functions exercised by the Governor/qua-Governor and those functions in respect of which he is bound to act on the aid and advice of the Council of Ministers, or a function which he could exercise in his discretion."

41. The Calcutta High Court in Mahabir Prasad Sharma v. Prafulla Chandra Ghose and others (supra), while dealing with the power of Governor to appoint the Chief Minister has laid down that the Governor in making the appointment of the Chief Minister under Article 164(1) of the Constitution acts in his sole discretion and the exercise of his discretion by the Governor cannot be called in question in writ proceedings in the High Court. It has been further laid down therein that if a Council of Ministers refuses to vacate the Office of Ministers, even after a motion of no confidence has been passed against it in the Legislative Assembly of the State, it will then be for the Governor to withdraw the pleasure during which the Council of Ministers hold office.

41-A. The Gauhati High Court in (Jogendra Nath Hazarika v. State of Assam and others), A.I.R. 1982 Gauhati 25 has held that the pleasure of the Governor is absolute, unrestricted and unfettered and cannot be questioned in Court. The following observations of the Gauhati High Court are worth taking note of:-

Art. 164(1) clearly provides that the Ministers hold Office during the pleasure of the Governor. The exercise of the pleasure has not been fettered by any condition or constriction or restriction. The Governor has wide and large powers in these matters. Withdrawals of pleasure is entirely in the discretion of the Governor and the Governor alone. Art. 162(2) which provides that the Ministers shall be collectively responsible to the Assembly does not in any way fetter or constrict his power to withdraw pleasure while the Minister hold Office. Art. 164(2) expresses that the Council of Ministers is answerable to the Assembly. A majority of the members of the Assembly can express its want of confidence in the Ministry; and, that is the limit to which the Assembly can go. It has no power to dismiss or remove the Council of Ministers from the offices. The power of removal or withdrawal of pleasure is entirely and exclusively that of the Governor. The repository of power to appoint Chief Minister and the Council of Ministers or to withdraw the pleasure contemplated under Art. 164(1) and/or dismissal of the Ministry are exclusive pleasure-cum-discretion of the Governor. There is no limitation or condition of the unfettered pleasure prescribed in Article 164(1). It follows, therefore that the right of the Governor to withdraw pleasure, during which the Ministry hold office, is absolute, unrestricted and unfettered. There is no manner or method of withdrawal of his pleasure. There is nothing that it should be printed or punished in the official gazette.

"Under Article 163(2) the exercise of the discretion in withdrawing the pleasure is a matter which is a prohibited area for the Court. The exercise of the function of the Governor under Article 163(1) that is appointment and/or dismissal or withdrawal of pleasure or any decision of the Governor in connection therewith, exercised in his discretion have been made final. When the Governor replaces the old ministry by a new one, no hearing to earlier Chief Minister is contemplated before appointment of new Chief Minister as loss of confidence is based on subjective satisfaction."

42. A Full Bench of the Madras High Court in K.A. Mathialagan v. The Governor of Tamil Nadu (supra), after reviewing the case law has laid down that the exception in Article 163(1) has reference only to those functions in which the Governor is expressly required to use his own discretion. The Full Bench has further laid down that though the Governor cannot be personally, as a party or otherwise, called upon to answer a charge of bad faith with reference to his official act, the validity of his act is open to challenge on that ground in the Court in view of second proviso to Article 361(1) of the Constitution. These observations were made by the Full Bench while dealing with a case of prorogation of the State Assembly wherein mala fides were attributed against the Governor while ordering prorogation of the State Assembly. It was pointed out that in no judgment it has been held that where the bona fides of the Governor are questioned he can personally be called to enter his defence. Accordingly, the Full Bench came to the conclusion that the immunity extends to cases where bona fides are questioned or male fides are alleged. In this connection it was observed as under:--

"Neither the Supreme Court in this case, nor in the other cases we referred to of the High Courts, was it held that the personal immunity afforded by Article 361(1) to the Governor did not avail where his bona fides were questioned. They have not held that where his bona fides are questioned he can personally be called to enter his defence. In our opinion, his personal immunity, extends to such a case as well."

43. While dealing with Full Bench judgment of the Madras High Court the noted Constitutional Expert H.M. Seervai in "Constitutional Law of India", 4th Edition, Volume I, at page 2070, Note 18.79 has opined that the view taken by Full Bench that in respect of his official acts, the Governor is not answerable to the Court even in respect of a charge of mala fides is correct.

44. We concur with this position. We also agree with the learned author that in such eventuality Governor cannot be said to be under duty to deal with allegations of mala fides in order to assist the Court, which in effect would mean that he is answerable to the Court.

45. The Governor in terms of Article 156 of the Constitution holds office during the pleasure of the President. Any mala fide actions of the Governor may, therefore, conceivably be gone into by the President. Another effective check is that the Ministry will fall if it fails to command a majority in the Legislative Assembly.

46. Thus, the position in law is clear that the Governor, while taking decisions in his sole discretion, enjoys immunity under Article 361 and the discretion exercised by him in the performance of such functions is final in terms of Article 163(2). The position insofar as the dismissal of the Chief Minister is concerned would be the same, since when the Governor acts in such a matter he acts in his sole discretion. In both the situations, namely the appointment of the Chief Minister and the dismissal of the Chief Minister, the Governor is the best Judge of the situation and he alone is in possession of the relevant information and material on the basis of which he acts. The result, therefore, would be that such actions cannot be subjected to judicial scrutiny at all.

47. In our opinion, the ruling of the Apex Court in Bommais case (supra) would not be attracted to the fact situation in the case before us. Bommais case (supra) was with reference to the challenge to the Proclamation under section 356. In such cases, the President arrives at his satisfaction on the basis of the report of the Governor and on the aid and advice of the Union Council of Ministers headed by the Prime Minister due to which the satisfaction arrived at on the basis of such material is subject to judicial review on limited parametres of legal mala fides, irrationality and illegality. It has been held in Bommais case (supra) that the power conferred under Article 356 is a conditional power; it is not an absolute power to be exercised in the discretion of the President. The judgment of the Apex Court in A.K. Kaul and another v. Union of India and another (supra) is in relation to dispensation of enquiry under Article 311 of the Constitution where also action is based upon the material placed before the Authority and action is not taken in the sole discretion of the Authority. Insofar as the impugned orders before us are concerned, the same are based on the sole discretion of the Governor.

48. For the aforesaid reasons we hold that the petition is not maintainable in view of Articles 361 and 163(2) read with 164(1) of the Constitution of India as the impugned orders Exhibit P-1 and Exhibit P-16 cannot be subjected to judicial scrutiny at all. In this view of the matter, it is not necessary to go into the allegations of mala fides. The result is that the petition is dismissed and Rule is discharged. In the facts and circumstances there shall be no order as to costs.

Petition dismissed.