Patna High Court
Sheonath Rai And Anr. vs State Of Bihar And Anr. on 20 April, 1988
Equivalent citations: AIR1989PAT126, 1989(37)BLJR97, AIR 1989 PATNA 126, (1989) PAT LJR 56, 1989 BLJR 97, (1989) BLJ 136
ORDER
1. The Supreme Court in Ram Bachan v. State of Bihar, AIR 1967 SC 1404 and this Court in R. Prasad v. State of Bihar, 1967 BLJR 491 have concluded that Section 388 of the Bihar and Orissa Municipal Act does not confer arbitrary powers upon the State Government and that it does not violate Article 14 of the Constitution of India, yet since in Baldev Singh v. State of Himachal Pradesh (AIR 1987 SC 1239) the Supreme Court has considered the provisions in Section 256 of the Himachal Pradesh Municipal Act (19 of 1968) and said: --
"The settled position in law is that where exercise of a power results in civil consequences to citizens, unless the statute specifically rules out the application of natural justice, the rules of natural justice would apply and that before the notified area is constituted in terms of Section 256, the people of the locality should be afforded an opportunity of being heard and the administrative decision by the State Government should be taken after considering the views of the residents."
The petitioners herin have once again questioned the validity of the said provisions. The respondent State has notified and declared that it is necessary to make adminsitrative provisions for the purpose of the Act in the area lying within the villages noted in the notification in the district of Sitamarhi and bounded as described therein. The said notification has been published on 4th August, 1987 (Annexure 1) in exercise of the powers conferred by Sub-section (1) of Section 388 of the Act in the name of the Governor of the State and authenticated by the Joint Secretary to the Government in the department concerned. The petitioners have challenged the said notification alleging that the area notified is comprised of purely agricultural villages; that it forms part of the local Gram Panchayat and administered in accordance with the provisions of the Bihar Panchayat Raj Act; that views of the residents of the area have not been ascertained by the Stale Government and that it has nothing to show that it has acquired the shape of an urban agglomeration. According to the petitioners the notification has been issued in violation of the principles of natural justice.
2. The petitioners have claimed that they are the residents of the villages falling within the area notified and that they have the representative capacity to speak on behalf of the residents of the area. Besides the petitioners, some other residents of the area have intervened and supported the petitioners. Some other persons, however, have appeared to oppose the application.
3. In the return filed on behalf of the respondents, the fact that there was no attempt made to ascertain the views of the residents of the area concerned, has not been disputed. It has, however, been alleged that the petitioners do not have the representative capacity, that the area concerned has since developed into an urban agglomeration and that it is in the interest of the residents of the area, that they are governed by a Self Government created in accordance with the provisions of the Bihar and Orissa Municipal Act, 1922 and accordingly a notification under Section 388(1) of the Act has been issued.
4. Chapter II of the Act contains provisions about the constitution of a Government of the Municipality. Section 4 therein states that the State Government may declare its intention to constitute such town together with or exclusive of any railway station, village, land or building in the vicinity of such town, as a municipality if it is satisfied that three fourth of the adult male population of the town are engaged on pursuits other than agriculture and that the town contains not less than five thousand inhabitants and an average number not less than one thousand inhabitants to the square mile of the area of such towa Section 5 slates that the State Government shall take into consideration any objection submitted through the District Magistrate within six weeks from the date of the publication of a declaration under Section 4 by any inhabitant of the town or area or any rate payer of the municipality concerned. Section 388, however, is a provision to empower the State Government to declare that it is necessary to make administrative provision for all or any of the purposes of the Act in any area specified in the notification issued for the said purpose other than a municipality or a cantonment.
5. An examination of these provisions reveals that while for constituting a notified area by a notification under Section 388(1) of the Act conditions as enumerated in Section 4 of the Act need not be asked for, for creating a municipality the State Government must be satisfied that all the three conditions enumerated in Section 4(1) of the Act which are conditions precedent to constitute a town municipality, have been fulfilled. In coming to the said conclusion the State Government must, if objections are raised as provided in S, 5 of the Act, take into account the objections of the inhabitants of the area concerned. In R. Prasad v. State (1967 BLJR 491) (supra) a Bench of this Court has said :--
"The first condition for declaring an area as a notified area as provided in Sub-section (1) of Section 388 already quoted, is that the area must not be either a municipality or a cantonment. It is well known that notified areas are constituted in those areas which have just begun to develop either on account of the establishment of a factory or headquarters of a district or sub-division, as the case may be. In such areas there may not be appreciable urban population at the time of the constitution of the area except the staff of the factory or Government servants, as the case may be though future growth of the urban population is undoubtedly envisaged.....
In such areas a simpler form of municipal administration may have to be provided and this seems to be the main object underlying the provisions bf Sections 388 and 389 of the Act. When the Legislature in Sub-section (1) of Section 388 expressly excluded a muncipality from the scope of that section and when the same Legislature in Section 4(1)(a) of the Act insisted on certain minimum requirements as regards population, its composition and density before an area could be constituted into a municipality, the reasonable inference is that the Legislature did not intend consultation of the wishes of the people as an essential condition where a notified area is to be constituted."
6. In Ram Bachan v. State of Bihar (AIR 1967 SC 1404) a Constitution Bench of the Supreme Court has taken notice of a similar argument and has observed : --
"regarding the first point the ground of attack was that Sections 388 and 389 give arbitrary power to the Government either to constitute a municipality under Section 4 of the Act or to constitute a Notified Area Committee under Section 388. It would be noticed that the Notified Area Committee Was constituted as long ago as 1942. Without deciding the point, we assume that Mr. B. Sen is entitled to challenge the validity of Sections 388 and 389. It seems to us that there is no substance in this point. Section 4(1)(a) and (b) provides as under:.....
It would be noticed that Section 4(1) contemplates a town containing not less than five thousand inhabitants and a town of a particular density of population and further that three-fourth of the adult male population should be engaged in pursuits other than agriculture. Now these requirements show that the area has reached such a stage of development that the Government should constitute a muncipality in the area. Section 388 would come into picture only if the requirements of Section 4 are not satisfied but yet the Government considers it necessary to make administrative provision for all or any of the purposes of the Act. In our view this gives sufficient guidance to the Government and thus no arbitrary power has been conferred on the Government."
7. This Court in R. Prasad (1967 BLJR
491) (supra) and the Supreme Court in Ram Bachan (AIR 1967 SC 1404) (supra) have held that Section 388 of the Act is not ultra vires Article 14 of the Constitution of India. We have referred to the discussions, in the two judgments about the validity of Section 388 of the Act with reference to Section 4(1) of the Act only to emphasise that while in R. Prasad this Court has almost assumed that Section 4(1) need not be considered for the purpose of applying Section 388 of the Act, in Ram Bachan the Supreme Court has considered the matter in terms of Section 4(1) of the Act relevant for a decision whether the area concerned has reached such a stage of development that the Government should constitute a municipality in the area or not or would constitute a notified area because the requirements of Section 4 are not satisfied.
8. Although it has been always noticed in Article 14 of the Constitution and the Courts described equality guaranteed under Article 14 of the Constitution as an inhibition against discrimination, in E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555 it has been said that equality is a dynamic concept with many: aspects and dimensions and it cannot be 'cribbed, cabined and confined' within -traditional and doctrinaire limits. It has emphasised that equality is antithetic to arbitrariness and that, in fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic' while the other, to the whim and caprice of an absolute monarch. This has been reaffirmed in Maneka Gandhi's case, AIR 1978 SC 597 and the Supreme Court has said : --
"Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence....."
9. In Union of India v. Tulsi Ram Patel (AIR 1985 SC 1416 at p. 1460) Supreme Court has summarised the law in the following words : --
"The principles of natural justice have thus come to be recognized as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that Article. Shortly put, the syllogism runs : violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14; therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of "State" in Article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially."
10. In Baldev Singh v. State of Himachal Pradesh (AIR 1987 SC 1239) (supra) Section 256 of the Himachal Municipal Act is reproduced :--
"256. Constitution of notified area :--
(1) the State may, by notification, declare that with respect to some or all of the matters upon which a municipal fund may be expended under Section 51, improved arrangements are required within a specified area, which nevertheless, it is not expedient to constitute as a municipality.
(2) An area in regard to which a notification has been issued under Sub-section (1) is hereinafter called a notified area.
(3) No area shall be made a notified area unless it contains a town or bazar and is not a purely agricultural village.
(4) The decision of the State Government that a local area is not an agricultural village within the meaning of Sub-section (3) shall be final, and a publication in the Official Gazette of a notification declaring an area to be a notified area shall be conclusive proof of such decision."
11. It is a provision which has clearly spelled out a notified area shall be constituted when it is not expedient to constitute it as a municipality but no area shall be made a notified area unless it contains a town or bazar and is not a purely agricultural village. This has sufficient element of such consideration which excluded arbitrary exercise of power by the State Government inasmuch as it cannot notify any area unless it contains a town or bajar and is not a purely agricultural village. In Section 388 of the Bihar Act, even such guidelines are not there to govern the discretion of the State Government in the matter of constitution of a notified area. In Section 256 of the Himachal Act the Supreme Court has noticed the rule of natural justice in the following words :
"Ours is a democratic polity. At every level, from the villages up to the national level, democratic institutions have been introduced. The villages are under Gram Panchayats, urban areas under municipalities and corporations, districts are under Parishads; for the State there is a Legislature and for the entire country, we have the Parliamenty People residing within Gram Panchayats have their electoral rights to exercise and in exercise 6f such right they have elected their representatives. Citizen's of India have a right to decide what should be the nature of their society in which they live-agrarian, semi-urban or urban. Admittedly, the way of life varies depending upon where one lives. Inclusion of an area covered by a Gram Panchayat within a notified area would certainly involve. civil consequences. In such circumstance, it is necessary that people who will be affected by the change may be given an opportunity of being heard, otherwise they would be visited with serious consequences like loss of office in Gram Panchayat and an imposition of a way of life, higher incidences of taxes and the like."
12. In State of Orissa v. Sridhar Kumar Malik, AIR 1985 SC 1411 certain provisions of Orissa Municipal Act have been noticed. It appears that the Bihar and Orissa Municipal Act has been repealed and in the matter of the constitution of notified area also such provisions have been made by the Orissa legislature which require ascertaining the views of the residents and then only to impose a notified area. Legislature of the State of Bihar has, however, not yet seen through this aspect. But any doubt that would be entertained as to whether such be the requirement before a notification under Section 388 of the Act is issued, is removed if we read in Ram Bachan v. State of Bihar (AIR 1967 SC 1404) (supra) the Supreme Court laying down the law that it is in the process of testing whether the condition precedent for constituting a municipality in terms of Section 4(1) of the Act are satisfied or not, that the State Government may decide whether to constitute a municipality if all the conditions are satisfied or to constitute a notified area because all the conditions are not satisfied nonetheless the residents desire and deserve constitution of a notified area and extension of the provisions of the Bihar and Orissa Municipal Act, 1922, or not.
13. We, accordingly, find no conflict in the two judgments of the Supreme Court and hold that as a rule of natural justice conditions as enumerated in Section 4(1) of the Act be considered relevant for a decision whether a notified area should be constituted or municipality should be constituted. The State Government's discretion shall thus be guides satisfying as held in Baldev Singh's case (AIR 1987 SC 1239) the rule that the views of the residents are obtained before a decision is taken to constitute a notified area. Denial of such opportunity will not be in consonance with the scheme of the rule of law governing our society.
14. Though we read in Section 388 such requirements, in our view, it shall not be necessary while inviting objections to give oral hearing to the objectors or to give elaborate judgment discussing each objection and deciding whether to accept or not. Natural justice is a variable concept. It has been varied for the reasons of exigency from case to case, situation to situation and circumstance to circumstance. For the same reason, method of obtaining the views may not be as elaborate as one may desire before a decision is taken to constitute a municipality. In case of a decision to constitute a notified area; it would be enough if due publicity of the intention to constitute a notified area is made and those who desire to object are allowed to file their objections to the District Magistrate who may, after obtaining such objections, forward them to the Govt. of the State. The Government may, in a given case, be persuaded on account of the objections to abstain from notifying the area concerned and not to extend the application of the provisions of the Act to such area. Notwithstanding the objections it may still hold that the area concerned should be put under a committee which should govern in accordance with the provisions of the Act. The Government may have information by way of such objections which may influence its administrative decision and thus it may come to a definite conclusion.
15. In the instant case no publication was made in the area concerned of the intention to constitute either a municipality or a notified area. No objections were invited. Petitioners herein may not be genuinely complaining about the wishes of the residents of the area but still because no opportunity was afforded to raise objections, the State action in notifying the area is violative of the principle of natural justice and to that extent of Article 14 of the Constitution of India.
16-17. The area has, however, been notified and the provisions of the Bihar and Orissa Municipal Act have been extended to it. It is however, possible to direct for inviting objections and deciding in accordance with law whether to notify the area or not without nullifying the notification as contained in annexure 1. This can be achieved by a direction to the respondent-State to ascertain file views of the residents of the areas ex facto.
18. We, accordingly, direct the respondent-State to complete the formality of inviting objections etc. by following the procedure as envisaged for constituting a Municipality within three months. Having done so, the respondent-State is directed to decide whether to recall the order constituting the Notified Area Committee as contained in Annexire 1 or not and accordingly, issue a notification either cancelling the said notification or affirming it.
19. In the result, the application is allowed to the extent indicated above. In case the State Government shall fail to carry out the direction as above, the Notification as contained in Annexure 1, shall automatically stand cancelled. There shall be no order as to costs.