Appeal No 2314 of 1966
Appeal from the judgment and order dated October 7 1966 of the Punjab High Court in Circuit Bench at Delhi in Civil Writ Petition No 790 D of 1966
M C Setalvad Ravinder Narain J B Dadachanji for the appellants
section V Gupte Solicitor General R Ganapathy
Iyer R N Sachthey and R H Dhebar for the respondent
The Judgment of the Court was delivered by Shah J
The Punjab Reorganisation Act 1966 hereinafter called the Act  was enacted with the object of reorganising the State of Punjab
By the Act which came into force on November 1 1966 the eastern hilly areas of the old State were transferred to the Union territory of Himachal Pradesh the territory known as Chandigarh in Kharar tahsil was constituted into a Union territory and the remaining territory was divided between the new State of Punjab and the Haryana State
The old State of Punjab had a bi cameral Legislature with 154 members in the Legislative Assembly and 51 members in the Legislative Council
Under section 13 of the Act as from November 1 1966 the Legislative Assembly of the new State of Punjab consists of 87 members
and the Haryana Legislative Assembly consists of 54 members
The new State of Punjab has also a bi cameral Legislature
Out of the original membership of 51
16 members whose names are set out in the Seventh Schedule to the Act ceased to be members of the Legislative Council and the remaining members continued to be members of the Legislative Council of the new State of Punjab
Out of the 16 members who ceased to be members of the Legislative Council 14 members it is claimed by the appellants belong to the Haryana area and 2 to the Himachal Pradesh Union territory
The Act was challenged as illegal and ultra vires of the Constitution on diverse grounds in a writ petition filed by the two appellants in the High Court of Punjab
The High Court rejected the petition
111 In this Court two contentions were urged in support of the appeal 1 Constitution of the Legislative Assembly of Haryana by section 1 31 of the  violates the mandatory provisions of article 1701 of the Constitution and 2 By enacting that
8 members of the Legislative Council who are residents of the Union territory of Chandigarh shall continue to sit in the Legislative Council in the new State of Punjab and by enacting that the members elected to the Legislative Council from the Haryana area shall be unseated there is denial of equality
By section 24 of the Act it is provided that the total number of seats in the Legislative Assembly of Haryana to be constituted at any time after the appointed day ie November 1 1966 to be filled by persons chosen by direct election from territorial constituencies shall be eighty one
 It is clear that section 131 which allocates fifty four sitting members out of the members elected to the Legislative Assembly of the old State of Punjab to the Haryana area Legislative Assembly on November 1 1966 is a temporary provision
Constitution of the Legislative Assembly of Haryana on November 1 1966 is it is contended violative of article 170 of the Constitution
In terms article 170 enacts that a Legislative Assembly shall be constituted by members chosen by direct elections from territorial constituencies and that the Assembly shall consist of not more than five hundred and not less than sixty members
But article 170 is not the only provision having a bearing on the constitution of a Legislative Assembly
By article 2 the Parliament may by law admit into the Union or establish new States on such terms and conditions as it thinks fit and article 3 provides that the Parliament may by law a form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State b increase the area of any State c diminish the area of any State d alter the boundaries of any State e alter the name of any State
Any law referred to in article 2 or article 3 shall it is provided by article 41 contain such provision for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the 112 provisions of the law and may also contain such supplemental incidental and consequential provisions including Provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law as Parliament may deem necessary
BY cl
2 of article 4 it is provided No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of articles 368
 The law referred to in articles 2  3 may therefore alter or amend the First Schedule to the Constitution which sets out the names of the States and description of territories thereof and the Fourth Schedule allotting seats to the States in the Council of States in the Union Parliament
The law so made may also make supplemental incidental and consequential provisions which would include provisions relating to the setting up of the legislative executive and judicial organs of the State essential to the effective State administration under the Constitution expenditure and distribution of revenue apportionment of assets and liabilities provisions as to services application and adaptation of laws transfer of proceedings and other related matters
On the plain words of article 4 there is no warrant for the contention advanced by counsel for the appellants that the supplemental incidental and consequential provisions which by virtue of article 4 the Parliament is competent to make must be supplemental incidental or consequential to the amendment of the First or the Fourth Schedule
The argument that if it be assumed that the Parliament is invested with this wide power it may conceivably exercise power to abolish the legislative and judicial organs of the State altogether is also without substance
We do not think that any such power is contemplated by article 4
Power with which the Parliament is invested by articles 2 and 3 is power to admit establish or form new States which conform to the democratic pattern envisaged by the Constitution and the power which the Parliament may exercise by law is supplemental incidental or consequential to the admission establishment or for mation of a State as contemplated by the Constitution and is not power to override the constitutional scheme
No State can therefore be formed admitted or set up by law under article 4 by the Parliament which has not effective legislative executive and judicial organs
Power to reduce the total number of members of the Legis lative Assembly below the minimum prescribed by article 1701 is in our judgment implicit in the authority to make laws under article 4
Such a provision is undoubtedly an amendment of the Constitution but by the express provision contained in cl
2 of article 4 no such law Which amends the First and the Fourth Schedule or which makes supplemental incidental and consequential provisions is to be 113 deemed an amendment of the Constitution for the purposes of Art368
Our attention was invited to article 371A2h of the Constitution which makes an express provision in derogation to article 1701 relating to the constitution of a Legislative Assembly for the State of Nagaland and fixesnotwithstanding anything in this Constitution for a period of ten years from the date of the formation of the State of Nagaland or for such further period as the Governor may on the recommendations of the regional Coun cil by public notification specify in this behalf the membership of the Legislative Assembly at 46
Power of the Parliament to make amendments in the Constitution by express enactment so as to reduce the number of members of a Legislative Assembly below the minimum prescribed having regard to the exigency of a special case may not be denied
But the Constitution also contemplates by article 4 that in the enactment of laws for giving effect to the admission establishment or formation of new States or alteration of areas and the boundaries of those States power to modify provisions of the Constitution in order to tide over a temporary difficulty may be exercised by the Parliament
The High Court was therefore right in holding that section 131 was not invalid merely because it departed from the minimum prescribed as the total membership of the Legislative Assembly for a State
Sections 20  22 of the Act deal with the constitution of the Legislative Council
By section 20 the Legislative Council of the new State of Punjab is to consist of 40 representatives and the Third Schedule to the Representation of the People Act 1950 is to stand modified accordingly
By section 22 it is provided 1 On the appointed day the sitting members of the Legislative Council of Punjab specified in the Seventh Schedule shall cease to be members of that Council
2 On and from the appointed day all sitting members of the Legislative Council of Punjab other than those referred to in subsection 1 shall continue to be members of that Council
By the Seventh Schedule 16 members of whom it is claimed 14 are from the territory which is now in Haryana State have been untreated
It was claimed by the appellants in their petition before the High Court that those 14 members of the Old Punjab Legislative Council would cease to be members of the new Council from November 1 1966 whereas 8 members belonging to the newly constituted area of the Union territory of Chandigarh still continue to be members of the new Punjab Legislative Council and that such discriminatory treatment of members from the Haryana region 114 amounted to denial of equality
In the affidavit on behalf of the Union of India it was submittedthat because Chandigarh is to be the capital of the existing Stateof Punjab and will continue to be the seat of new Government of the Punjab the members from Chandigarh were admitted as members of the Legislative Council of the new State of Punjabthat the provision was consequential and incidental to the main provision constituting the State of Punjab and that in theevent the appellants were not persons aggrieved by the so called discriminatory treatment
By article 1713 of the Constitution membership of the Legis lative Council is not from territorial constituencies it is by nomination indirect election or by election from teachers  and graduates 
constituencies
Of the total number of members of the Legislative Council of a State one third are to be elected by electorates consisting of members of municipalities district boards and such other local authorities in the State one twelfth are to be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in India ox possess equivalent qualifications one twelfth are to be elected by electorates consisting of persons who have been engaged in teaching in educational institutions within the State one third are to be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly and the remainder are to be nominated by the Governor in accordance with the provisions of cl 5
These constituencies are not territorial constituencies
On the reorganisation of the old State of Punjab adjustments had to be made in the membership of the Legislative Council
No such adjustment as would strictly conform to the requirements of article 1713 could however be made without fresh elections
The Parliament therefore adopted an ad hoc test and unseated members who were residents in the territory of Haryana and Himachal Pradesh
It is true as admitted in the affidavit on behalf of the Union of India that members belonging to the Union territory of Chandigarh will be members of the new Punjab Legislative Council and members from the Haryana State territory will be unseated
Whether in unseating the members from Haryana area and allowing the members from the Chandigarh area to continue a valid classification is made on the ground that Chandigarh is the capital of the two States need not detain us because we are of the view that no discrimination by unseating members from the Haryana area can be deemed to be practised against the appellants of which they can complain
The appellants were not sitting members of the Legislative Council of the old State of Punjab and no personal right of the appellants is infringed by unseating the members whose names are set out in the Seventh Schedule
Again the new State of Punjab is a bi cameral Legislature
The new State of Haryana is uni cameral
It is not claimed 115 and cannot be claimed that a resident of the State of Haryana is
merely because of that character entitled to sit in the Punjab Legislative Council
By allowing the members from the Chandigarh area to continue to remain members of the Legislative Council of the new State of Punjab no right of the residents of Haryana is therefore violated


Summary:
The  carved out of the old State of Punjab two new States Punjab and Haryana transferred some areas to Himachal Pradesh and constituted Chandigarh a territory of the old State into a Union territory
The old State had a bicameral Legislature and so also has the new State of Punjab but that of Haryana is to be unicameral
Under the Act the Legislative Assembly of Haryana is to consist of only 54 members members of the Legislative Council of the old State belonging to Haryana area are unseated while those members residing in the Union Territory of Chandigarh continue to be members of the Legislative Council of that new State of Punjab
The appellants none of whom was a sitting member of the Legislative Council of the old State challenged the legality of the Act in a writ petition which the High Court rejected
In appeal to this Court the appellants contended that i Constitution of the Legislative Assembly of Haryana by section 131 of the Act which departs from the minimum membership prescribed to the State Legislative Assembly violates the mandatory provisions of the Art 1701 of the Constitution and ii by enacting that members of the Legislative Council of the old State residing in the Union Territory of Chandigarh shall continue to sit in the Legislative Council in the new State of Punjab and by enacting that the members elected to the Legislative Council from the Haryana area shall be unseated there was denial of equality
HELD  The appeal must be dismissed
i Power to reduce the total number of members of the Legislative Assembly below the minimum prescribed by article 1701 is implicit in the authority to make laws under article 4 of Constitution
Such a provision is undoubtedly an amendment of the Constitution but by the express provision provided in article 42no such law which amends the First and the Fourth Schedule or which makes supplemental incidental and consequential provision is to be deemed an amendment of the Constitution for purposes of article 368
The Constitution also contemplates by article 4 that in the enactment of laws for giving effect to the admission establishment or formation of new States or alteration of areas and the boundaries of those States power to modify provisions of the Constitution in order to tide over a temporary difficulty may be exercised by the Parliament
112H 1 13 C D ii Parliament could not make adjustments as would strictly conform to the requirements of article 1713 without fresh elections
It therefore adopted an ad hoe test and unseated members of the Council who were 110 residents of the Haryana area
There was however no discrimination in unseating members from the Haryana Area of which appellants could complain
The appellants were not the sitting members of the Legislative Council of the old State and no personal right of the appellants was in fringed by unseating those members
A resident of the State of Haryana merely because of that character cannot claim to sit in the Punjab Legislative Council
By allowing the members from the Chandigarh area to continue to remain members of the new State of Punjab no right of the residents of Haryana was violated
114 E H 115 A