Rajasthan High Court - Jodhpur
Samandar Singh vs State Of Rajasthan on 28 February, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:966-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 20142/2024
1. Motan Das S/o Shri Tiku Ram, Aged About 61 Years, R/o
Ward No. 13, Bhagat Singh Nagar, New Mandi, Gharsana,
District Anoopgarh (Raj.).
2. Sandeep Kaur W/o Shri Harpreet Singh, Aged About 34
Years, R/o Chak 2 Str, Gharsana District Anoopgarh
(Raj.).
3. Rajender Kumar S/o Shri Purkh Ram, Aged About 53
Years, R/o Village 3 Gd, Ward No. 5, P.o. 7 Gp-B, Tehsil
Gharsana, District Anoopgarh (Raj.).
4. Mohan Lal S/o Shri Ashu Ram, Aged About 41 Years, R/o
Ward No. 19, 24 As-C, Gharsana, District Anoopgarh
(Raj.).
5. Mukesh Kumar S/o Shri Banwari Lal, Aged About 36
Years, R/o Village - 3 Gd, Ward No. 5,po- 7 Gd, District
Sri Ganganagar.
6. Satnam Singh S/o Shri Sukhdev Singh, Aged About 54
Years, R/o Ward No. 8 Chak 2 Str, New Gharsana, District
Anoopgarh.
----Petitioners
Versus
1. The State Of Rajasthan, Through The Principal Secretary,
Local Self Department, Government Of Rajasthan,
Secretariat, Rajasthan, Jaipur.
2. The Secretary, Department Of Panchayati Raj,
Government Of Rajasthan, Secretariat, Rajasthan, Jaipur.
3. The Director Cum Special Secretary, Local Self
Department, Government Of Rajasthan, Secretariat,
Rajasthan, Jaipur.
4. The District Collector, Anoopgarh, District Anoopgarh.
----Respondents
Connected With
D.B. Civil Writ Petition (PIL) No. 6097/2023
1. Kripa Ram S/o Aasu Ram, Aged About 39 Years, Balesar
Durgawata, Balesar, Durgawata, Balesar, Jodhpur.
2. Pappa Ram S/o Rupa Ram, Aged About 25 Years,
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Devnagar, Balesar, Durgawata, Balesar, Durgawata,
Jodhpur.
----Petitioners
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Local Self Government, Secretariat, Jaipur.
2. State Of Rajasthan, Through The Secretary, Department
Of Panchayati Raj, Secretariat, Jaipur.
3. The District Collector, Jodhpur.
----Respondents
D.B. Civil Writ Petition No. 6181/2023
Samandar Singh S/o Babu Singh Tanwar, Aged About 52 Years,
Resident Of Ramdevra Tehsil Pokhran, District Jaisalmer,
Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Local Self Department, G-3, Rajmahal Residential Area,
C-Scheme, Near Civil Line Crossing, Jaipur 302016.
2. Additional Chief Secretary, Panchayati Raj Department,
Secretariat, Jaipur.
3. Director Cum Special Secretary, Local Self Department,
G-3, Rajmahal Residential Area, C-Scheme, Near Civil
Line Crossing, Jaipur 302016.
4. District Collector, Jaisalmer.
5. Abhay Singh s/o Shri Kewar Singh aged about 56 years,
r/o Ward no.05, Kesar Singh Ki Dhani, Ramdeora,
Jaisalmer, Rajasthan.
6. Poonam Chand s/o Shri Satyanarayan aged about 29
years, r/o 38, Nai Basti Ramdeora, Jaisalmer, Rajasthan.
7. Hari Ram s/o Shri Gumana Ram aged about 29 years, r/o
Ward No.3,Kumawato Ka Baas, Ramdeora, Pokran,
Jaisalmer, Rajasthan.
8. Guddi w/o Shri Sawai Ram aged about 25 years, r/o
1088, Bhilo Ka Bas, Ramdeora, Jaisalmer, Rajasthan.
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9. Sawai ram s/o Shri Sona Ram Bheel, aged about 28
years, r/o Bheelo Ka Bas,Ward No.6, Ramdeora,
Jaisalmer, Rajasthan.
10. Moola Ram s/o Shri Uda Ram aged about 48 years, r/o
Ward No.1, Kumawato Ka Mohalla, Mawa, Ramdeora,
Jaisalmer, Rajasthan.
11. Barket Ali s/o Shri Rasid Khan aged about 28 years, r/o
Nai Basti, Ramdeora, Jaisalmer, Rajasthan.
----Respondents
D.B. Civil Writ Petition No. 10028/2023
1. Pradeep Kumar Bisnnoi S/o Shri Rajendra Kumar, Aged
About 31 Years, R/o Ward No. 3, Behind Gram Panchayat,
Goluwala Sihagan, 22 Jrk, Hanumangarh (Raj.).
2. Rohitash Kumar Sharma S/o Shri Banwari Lal, Aged About
38 Years, R/o Ward No. 08, Goluwala Sihagan, 22 Jrk,
Goluwala, Hanumangarh (Raj.)
----Petitioners
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Local Self Department, G-3, Rajmahal Residential Area,
C-Scheme, Near Civil Line Crossing, Jaipur, 302016.
2. Additional Chief Secretary, Panchayati Raj Department,
Secretariat, Jaipur.
3. Director Cum Joint Secretary, Local Self Department, G-3,
Rajmahal Residential Area, C-Scheme, Near Civil Line
Crossing, Jaipur 302016.
4. District Collector, Hanumangarh (Raj.)
5. The Sub Divisional Officer And Magistrate, Pilibanga,
District Hanumangarh (Raj.).
6. Panchayat Samiti Pilibanga, Through Block Development
Officer, District Hanumangarh (Raj.)
7. Santosh w/o Shri Aadram, aged about 24, r/o Opposite
Vishwarkarma Temple, Ward No.17, Goluwala, Niwadan,
Tehsil Pilibanga, District Hanumangarh.
8. Manoj Beniwal s/o Shri Shiv Prakash r/o Ward No.1,
Goluwala Sihagan, Tehsil Pilibanga, District
Hanumangarh.
----Respondents
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D.B. Civil Writ Petition No. 19119/2024
1. Dungar Ram S/o Shri Bhaga Ram, Aged About 53 Years,
Resident Of Balesar Devnagar, Tehsil Balesar District
Jodhpur.
2. Bhoma Ram S/o Shri Ananda Ram, Aged About 48
Years, Resident Of Khari Beri, Tehsil Balesar District
Jodhpur.
----Petitioners
Versus
1. The State Of Rajasthan, Through Principal Secretary,
Government Of Rajasthan, Secretariat, Rajasthan,
Jaipur.
2. Secretary, Local Self Department, Rajasthan, Jaipur
3. Principal Secretary Cum Commissioner, Department Of
Rural Development And Panchayati Raj, Rajasthan,
Jaipur.
4. Director Cum Special Secretary, Local Self Department,
Rajasthan, Jaipur.
5. District Collector, Jodhpur
6. Shri Babu Singh Rathore, Mla, Shergarh District Jodhpur.
----Respondents
D.B. Civil Writ Petition No. 4425/2023
Gram Panchayat Barmer Magra, District Barmer Through
Sarpanch Jogendra Kumar S/o Dewaram, Aged About 27
Years, Resident Of Village Jato Ka Pada, Gram Panchayat
Panchayat Samiti Barmer (Rural), District Barmer
(Rajasthan).
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Local Self
Department, Govt. Of Rajasthan, Jaipur.
2. Municipal Council Barmer, District Barmer Through Its
Commissioner.
3. Zila Parishad Barmer, Through Its Chief Executive
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Officer.
4. District Collector Barmer, District Barmer.
----Respondents
Connected With
D.B. Civil Writ Petition No. 10828/2023
Gram Panchayat Barmer Gadan, District Barmer Through
Sarpanch Smt. Meera Devi W/o Shri Aadu Ram, Aged About
50 Years, Resident Of Village Barmer Gadan, Panchayat
Samiti Barmer (Rural), District Barmer (Rajasthan).
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Local Self
Department, Govt. Of Rajasthan, Jaipur.
2. Municipal Council Barmer, District Barer Through Its
Commissioner.
3. Zila Parishad Barmer, Through Its Chief Executive
Officer.
4. District Collector Barmer, District Barmer.
----Respondents
D.B. Civil Writ Petition No. 20795/2024
1. Jhunjar Singh S/o Baktawar Singh, Aged About 30
Years, Resident Of Lalaniyon Ki Dhani, Gram Panchayat
Barmer Magra Presently Working As Ward Punch Of
Ward No. 03, Gram Panchayat Barmer Tehsil And
District Barmer (Rajasthan).
2. Mula Ram S/o Dalu Ram, Aged About 65 Years,
Resident Of Maya Nadiya, Gram Panchayat Barmer
Magra Presently Working As Up-Sarpanch Of The Gram
Panchayat Barmer Magra.
3. Shankar Lal S/o Hari Ram Sansi, Aged About 45 Years,
Resident Of Village Barmer Magra, Presently Working
As Ward Punch Of Ward No. 1, Gram Panchayat
Barmer.
4. Shiv Ram Prajapat S/o Chokha Ram Prajapat, Aged
About 45 Years, Resident Of Udainagar, Gram
Panchayat Barmer Magra Presently Working As Ward
Punch Of Ward No. 4, Gram Panchayat Barmer Tehsil
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And District Barmer (Rajasthan).
5. Deva Ram S/o Rupa Ram, Aged About 55 Years,
Resident Of Lalaniyon Ki Dhani, Gram Panchayat
Barmer Magra Presently Working As Ward Punch Of
Ward No. 2, Gram Panchayat Barmer Tehsil And
District Barmer (Rajasthan).
6. Ranu Kanwar W/o Sumer Singh, Aged About 38 Years,
Resident Of Lalaniyon Ki Dhani, Gram Panchayat
Barmer Magra Presently Working As Member Of
Panchayat Samiti, Barmer Tehsil And District Barmer
(Rajasthan).
----Petitioners
Versus
1. State Of Rajasthan, Through Secretary, Local Self
Department, Govt. Of Rajasthan, Jaipur.
2. Municipal Council Barmer, District Barmer Through Its
Commissioner.
3. Zila Parishad Barmer, Through Its Chief Executive
Officer.
4. District Collector, Barmer District Barmer.
----Respondents
For Petitioner(s) : Mr. Vikas Balia, Sr. Adv. assisted by
(in WP Nos.20142/24, Mr. Sachin Saraswat.
6097/23, 6181/23 & Mr. Jitendra Singh Bhaleria.
10028/23) Ms. Nidhi Singhvi.
Mr. Surendra Thanvi.
(In WP No.19119/24)
Mr. R.S. Choudhary with
Mr. Sumer Singh Gour.
For Respondent(s) : Mr. Rajesh Panwar, Sr. Adv. & AAG
assisted by Mr. Ayush Gehlot.
Mr. Manish Patel
Mr. Dixit Panwar.
Mr. Divik Mathur.
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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN Judgment Reportable Reserved on 07/01/2025 / 11.02.2025 Pronounced on 28/02/2025 Per Dr. Pushpendra Singh Bhati, J:
1. The instant Civil Writ Petitions under Article 226 of the Constitution of India have been preferred claiming the following reliefs:
D.B. Civil Writ Petition No. 20142/2024:
"It is, therefore, humbly and respectfully prayed that this writ petition of the petitioners may kindly be allowed and by an appropriate writ order or directions:-
(i) The notification dated 07.11.2024 (Annexure P/1) may kindly be declared illegal and ultra vires the Constitution being arbitrary and violative of the principles of natural justice & constitutional directions;
(i)a. The notification dated 17.07.2023 (page 38 of the paper book) may kindly be quashed and set aside with all consequential benefits.
(ii) Any other appropriate writ, order or direction which this Hon'ble Court may deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.
(iii) Writ petition filed by the petitioner may kindly be allowed with costs."
D.B. Civil Writ Petition (PIL) No. 6097/2023:
"It is, therefore, most humbly and respectfully prayed that the present writ petition may kindly be allowed and by an appropriate writ, order and direction:
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1. The impugned notification dated 31.10.2022 (Annx.2) issued by the respondent authorities may kindly be quashed and set aside or in alternative and without prejudice to the aforesaid relief, the respondents may kindly be directed to undertake exercise to consider the various factors specified, as per the provisions of law, in respect to the inclusion of Gram Panchayat into Municipality and after carrying out the feasibility and compatibility report and after providing opportunity of hearing to the petitioners, the notification impugned dated 31.10.2022 be ordered to be amended accordingly."
D.B. Civil Writ Petition No. 6181/2023:
"It is, therefore, humbly prayed that this petition for writ in nature of mandamus may kindly be allowed and by an appropriate writ/order/directions:-
(i) The notification dated 24.04.2023 (Annexure-1) may kindly be declared illegal and ultra vires the Constitution being arbitrary and violative of the principles of natural justice & constitutional mandate and be struck down with all consequential directions;
(ii) Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioner;"
D.B. Civil Writ Petition No. 10028/2023:
"It is, therefore, humbly prayed that this petition for writ in the nature of mandamus may kindly be allowed and by an appropriate writ/order/directions:-
(i) The notification dated 26.06.2023 (Annex-1) may kindly be declared illegal and ultra vires and be struck down with all consequential directions;
(ii) All the proceedings and order pursuant to the notification dated 26.06.2023 passed, if any, may kindly be declared illegal and the same may kindly be quashed and set aside.(Downloaded on 28/02/2025 at 11:36:26 PM)
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(ii) Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioners."
D.B. Civil Writ Petition No. 19119/2024:
"It is, therefore, most humbly and respectfully prayed that this writ petition may kindly allowed and by an appropriate writ, order or direction:
(i) The impugned amended notification dated 23.10.2024 (Ann.11) and amended notification dated 29.10.2024 (Ann.13) issued by the respondent no.4 may kindly be declared highly arbitrary, unjust, unconstitutional and same may kindly be quashed and set aside.
(ii) The notification dated 31.10.2022 (Ann.5) may kindly be ordered to be restored.
(iii) The respondent authorities may kindly be directed to conduct the election of Municipal Board, Balesar Satta as per the wards constitute by the SDO, Balesar.
(iv) Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioners."
D.B. Civil Writ Petition No. 4425/2023:
"It is therefore most humbly prayed that this writ petition may kindly be allowed:-
• That by an appropriate writ, order or direction the notifications impugned dated 21.03.2023 (Annex-8) may kindly be declared highly illegal, unconstitutional and same may kindly be quashed and set aside.
• That by an appropriate writ, order and direction the proceeding initiated by the respondents for alter the limit of Municipal Council, Barmer may kindly be declare highly illegal and unconstitutional.
• That the any other relief, which this Hon'ble Court deems fit to protect and maintain the healthy judicial system in State of Rajasthan, by which the petitioner may get full justice may also be allowed."(Downloaded on 28/02/2025 at 11:36:26 PM)
[2025:RJ-JD:966-DB] (10 of 36) [CW-20142/2024] D.B. Civil Writ Petition No. 10828/2023:
"It is therefore most humbly prayed that this writ petition may kindly be allowed:-
• That by an appropriate writ, order or direction the notifications impugned dated 21.03.2023 (Annex-8) may kindly be declared highly illegal, unconstitutional and same may kindly be quashed and set aside.
• That by an appropriate writ, order and direction the proceeding initiated by the respondents for alter the limit of Municipal Council, Barmer may kindly be declare highly illegal and unconstitutional.
• That the any other relief, which this Hon'ble Court deems fit to protect and maintain the healthy judicial system in State of Rajasthan, by which the petitioner may get full justice may also be allowed."
D.B. Civil Writ Petition No. 20795/2024:
"It is therefore most humbly prayed that this writ petition may kindly be allowed:-
• That by an appropriate writ, order or direction the notifications impugned dated 21.03.2023 (Annex-6) may kindly be declared highly illegal, unconstitutional and same may kindly be quashed and set aside.
• That by an appropriate writ, order and direction the proceeding initiated by the respondents for alter the limit of Municipal Council, Barmer may kindly be declare highly illegal and unconstitutional.
• That the any other relief, which this Hon'ble Court deems fit to protect and maintain the healthy judicial system in State of Rajasthan, by which the petitioner may get full justice may also be allowed."
2. At the outset, for the sake of brevity and convenience, in the present adjudication, a tabular chart depicting the particulars regarding the assailment herein, is as follows: (Downloaded on 28/02/2025 at 11:36:26 PM)
[2025:RJ-JD:966-DB] (11 of 36) [CW-20142/2024] S.N. CW No. Date of Effect of Impugned Impugned Notification(s) Notification
1. 20142/25 07.11.2024 Municipality, Gharsana has been formed by taking the areas of various Gram Panchayats such as 24 AS_C, 3 STR, 2 STR, 2 GD-B & 4 STR.
17.07.2023 Relaxation in the norms fixed for constitution of the Municipal Board, Municipal Council & Municipality as such have been relaxed.
2. 6097/23 31.10.2022 Gram Panchayat, Devnagar has been included in the newly constituted Municipality, Balesar.
3. 6181/23 24.04.2023 Gram Panchayat, Ramdevra has been declared as Nagar Palika.
4. 10028/23 26.06.2023 Gram Panchayats, Goluwala Niwadan & Goluwala Sihagan, have been declared as Nagar Palika.
5. 19119/24 23.10.2024 Gram Panchayats Jalandhar Nagar, Jetsar, Kui Inda, Kui Jodha, Balesar Durgawatan, Khari Beri & Devnagar, which were included in Municipal Board Balesar vide notification dated 31.10.2022, have been excluded from the Municipal Board, Balesar Satta and the limit of Municipal Board, Balesar Satta is delimited upto Gram Panchayat, Balesar.
29.10.2024 Inclusion of Gram Panchayats Jalandhar Nagar, Jetsar & Balesar Durgawata, in the limit of Municipal Board, Balesar Satta.
6. 4425/23 21.03.2023 Village Barmer Magra (Gram Panchayat Barmer Magra) has been included in the municipal area of Municipal Council, Barmer.
7. 10828/23 21.03.2023 Village Barmer Gadan (Gram Panchayat Barmer Gadan) has been included in the municipal area of Municipal Council, Barmer.
8. 20795/24 21.03.2023 Village Barmer Magra (Gram Panchayat Barmer Magra) has been included in the municipal area of Municipal Council, Barmer.
3. The facts and submissions put forth by the counsel on behalf of the petitioners respectively are as follows: (Downloaded on 28/02/2025 at 11:36:26 PM)
[2025:RJ-JD:966-DB] (12 of 36) [CW-20142/2024] 3.1. D.B. Civil Writ Petition No.20142/2024:
3.1.1. In this writ petition, the petitioner has challenged the notification dated 07.11.2024, whereby Municipality, Gharsana has been formed by taking the areas of various Gram Panchayats such as 24 AS_C, 3 STR, 2 STR, 2 GD-B & 4 STR. Further, notification dated 17.07.2023 is also under challenge in the writ petition, whereby relaxation in the norms fixed for constitution of the Municipal Board, Municipal Council & Municipality as such have been relaxed.
3.1.2. Learned counsel for the petitioner submitted that a notification was issued on 19.02.2021 as per Article 243(Q)(2) of the Constitution of India laying down the various parameters for declaration of the transitional areas as Municipalities.
3.1.3. Thereafter, another notification was issued on 17.07.2023 wherein the blanket relaxation has been given in favour of State Government in the matter of declaration of Municipalities despite having the parameters specified in the notification dated 19.02.2021.
3.1.4. Further letter dated 18.07.2024 was issued by the Director & Joint Secretary, Department of Local Self Government, Government of Rajasthan, Jaipur to all the District Collectors in which there were proposals for declaration of the Municipalities from Gram Panchayats and the District Collectors were directed to call for the public objections as per Section 101 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'Act of 1994') while giving the particulars relating to parameters indicated in the notification dated 19.02.2021. In the said letter, there was no (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (13 of 36) [CW-20142/2024] mention of District Anoopgarh/Ganganagar in which Gharsana Tehsil falls.
3.1.5. Finally, vide notification dated 07.11.2024, the Municipal Board, Gharsana was formed pursuant to the budget proposal for the year 2024-25 by taking the areas of various Gram Panchayats such as Gram Panchayat Gharsana, 24 AS-C, 3 STR, 2 STR, 2GD-
B and 4 STR, etc., as mentioned in the said notification, while exercising the powers given under notification dated 17.07.2023, only on the basis of population criteria without giving any notice. 3.2. D.B. Civil Writ Petition (PIL) No. 6097/2023:
3.2.1. Learned counsel for the petitioner submitted that by this D.B. Civil Writ Petition, the petitioners have challenged the notification dated 31.10.2022 whereby the Gram Panchayat Devnagar has been included to Newly constituted Municipality Balesar. The petitioners sought relief of quashing the notification dated 31.10.2022 and for declaration thereof as unconstitutional;
or in alternative the impugned notification be amended further by fulfilling the requisites as contemplated in law. 3.2.2. Learned counsel further submitted that the provision contemplated under Article 243Q of the Constitution of India and the parameters enshrined therein have not been followed. 3.2.3. Learned counsel also submitted that the entire exercise under Section 3(1)(A) of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as 'Act of 2009') has been undertaken purely on the basis of collective population of various Gram Panchayats which is unsustainable in the eyes of law. (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (14 of 36) [CW-20142/2024] 3.2.4. Learned counsel also submitted that no public notice was issued prior to one month of issuance of amended notification and that no objections were invited by the concerned authorities. Learned counsel additionally pointed out that the important features of the concerned village that were not considered and the parameters were not complied with.
3.2.5. Learned counsel, in support of the above submissions relied upon the judgments rendered by Hon'ble Supreme Court in the following cases:
(a) Champa Lal v. State of Rajasthan, AIR 2018 SC 2352
(b) Baldev Singh v. State of Himachal Pradesh, AIR 1987 SC 1239.
3.3. D.B. Civil Writ Petition 6181/2023:
3.3.1. Learned counsel for the petitioner submitted that on 19.02.2021 the State Government issued a notification and laid down certain parameters pertaining to population, population density, etc., to be followed for converting Gram Panchayat to Municipality. This notification was mandatory in nature. The petitioner challenged the validity of notification dated 24.04.2023 whereby Gram Panchayat Ramdevra has been converted into Nagar Palika. Meanwhile, the Sub Divisional Officer, Pokran, District Jaisalmer preferred a communication to the District Collector, Jaisalmer which according to the petitioners showed that the parameters are not being met with.
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[2025:RJ-JD:966-DB] (15 of 36) [CW-20142/2024] 3.3.2. The petitioners sought relief of quashing the notification dated 24.04.2023 and to declare it unconstitutional; and restore the Gram Panchayat with all associated benefits. 3.3.3 Learned counsel for the petitioners, submitted that the constitutional mandate under Article 243-Q(2) of the Constitution of India has not been complied with and the same is apparent from the impugned notification dated 19.02.2021 itself. In support of this submission, learned counsel relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Champa Lal (supra) and thereby further submitted that the parameters prescribed in said notification ought to be followed. 3.3.4. Learned counsel also submitted that there has been violation of Section 101 of the Act of 1994 and that, no objections were sought from the public.
3.3.5. Learned counsel further submitted that the government issued similar notifications wherein it considered the required mandate. However, the same was not done in the case of the impugned notification, thereby the same stands vitiated. 3.3.6. Learned counsel, in support of such submissions, relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Baldev Singh v. State of Himachal Pradesh (1987) 2 SCC 510, wherein it was held that even if there is an absence of any provision under the municipal statute, opportunity of hearing should be granted in case of its conversion to municipality. 3.3.7. Learned counsel also referred to the judgment rendered by the Hon'ble Apex Court in the case of State of Rajasthan v. Ashok Khetoliya (2022) 12 SCC 185 and submitted the same (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (16 of 36) [CW-20142/2024] has not dealt with the parameters to be provided under Article 243-Q(2) and further submitted that the afore-quoted judgment relied on the judgment rendered in the case of Parmar Samantsinh Umedsinh v. State of Gujarat (Civil Appeal No. 706/2021, decided by the Hon'ble Supreme Court on 24.02.2021) which pertains to Article 243-R and Article 243-S and not Article 243Q. The counsel thereby submitted that a two-judge bench cannot overrule a decision given earlier in an identical case by a Division Bench.
3.4. D.B. Civil Writ Petition 10028/2023:
3.4.1. This petition lays a challenge to notification dated 26.06.2023, whereby Gram Panchayats, Goluwala Niwadan & Goluwala Sihagan, have been declared as Nagar Palika. 3.4.2. Learned counsel for the petitioner submitted that vide notification dated 19.02.2021 the criteria for upgrading Panchayats was outlined. Thereafter, on 09.05.2023, the District Collector instructed the SDO to ensure compliance with public notice and objections. Whereafter, on 16.05.2023, the SDO directed compliance of Section 101 of the Act of 1994 and Article 243Q of the Constitution of India but failed to initiate public notice. After which, on 23.05.2023, the Panchayat Samiti recommended upgradation and consequently, on 02.06.2023, the SDO forwarded recommendations, resultant to which vide notification dated 26.06.2023, the Gram Panchayats Goluwala Niwadan and Goluwala Sihagan were upgraded to Nagar Palika. (Downloaded on 28/02/2025 at 11:36:26 PM)
[2025:RJ-JD:966-DB] (17 of 36) [CW-20142/2024] 3.4.3. The petitioners sought relief of quashing the notification dated 26.06.2023 and to declare it unconstitutional; and restore the Gram Panchayats with all associated benefits. 3.4.4. Learned counsel also submitted that neither any mandatory public notice was given nor any objections were invited as per Section 101 of the Act of 1994.
3.4.5. Learned counsel further submitted that there has been non-compliance of the notification dated 19.02.2021, which mandates consideration of parameters like population density, revenue generation, and economic activities. 3.4.6. Learned counsel also submitted that there has been a breach of Article 243Q(2) of the Constitution, requiring consideration of specific parameters by the Hon'ble Governor. 3.4.7. Learned counsel further submitted that there has been violation of principles of natural justice by excluding public participation.
3.4.8. Learned counsel also submitted that RTI responses from SDO, Zila Parishad and Gram Panchayats confirmed that no public objections were invited or addressed. Further, both the Gram Panchayats admitted that only a proposal was passed without notice or consultation.
3.4.9. Learned counsel further submitted that the impugned notification has severely impacted residents of the concerned area, as the same has led to loss of rural benefits to them such as NREGA and other schemes critical to their agriculture-based livelihoods; in this regard learned counsel also pointed out that (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (18 of 36) [CW-20142/2024] villagers raised objections via multiple representations, but the same were ignored.
3.5. D.B. Civil Writ Petition 19119/2024:
3.5.1. Under challenge in this writ petition, are the notifications dated 23.10.2024 & 29.10.2024.
3.5.2. Learned counsel for the petitioner submitted that the respondent department has made mockery of mandate of the Constitution of India, the Act of 1994 and the Act of 2009 because firstly, the SDO, Balesar conducted the survey and prepared the report as per the Article 243Q of the Constitution of India and recommended declaring the Gram Panchayats namely, Balesar Satta, Jalandar Nagar, Jaitsar, Kui Inda, Kui Jodha, Balesar Durgawata, Khari Beri and Dev Nagar as municipal areas. On the basis of the aforesaid exercise, a notification was issued on 31.10.2022, whereafter the wards were constituted and master plan was also proposed, however, without following due process of law the impugned notification dated 23.10.2024 was issued whereby the 7 gram panchayats were excluded from the boundary limits of the municipal board, Balesar Satta but within period of 7 days with malafide intention and under the political pressure another notification was issued on 29.10.2024 whereby three gram panchayats were included in the municipal area, 7 out of which reflect the malafide on part of the respondent, as well as the misuse of law and power.
3.5.3. Learned counsel for the petitioners submitted that the said notification has been issued without following due process of law as the respondents were first duty bound to follow the procedure (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (19 of 36) [CW-20142/2024] prescribed in Section 101 of the Act of 1994 and to issue one month's notice before exclusion of Gram Panchayat Kui Jodha and Devnagar from the Municipal Board, Balesar Satta and to declare the urban area of the municipal limit Balesar Satta to be a Panchayat Circle.
3.5.4. Learned counsel further submitted that the notification dated 23.10.2024 has not been issued after following due process of law prescribed in Section 101 of the Act of 1994; and that, the notification dated 31.10.2022 has been withdrawn without considering the fact that the municipal board has been constituted after following due process of law, as prescribed in the Act of 1994 and Article 243Q of the Constitution of India. Thus the impugned notification dated 23.10.2024 is highly arbitrary and contrary to provisions of the Act of 1994 and Article 243Q of the Constitution of India.
3.5.5. In support of the such submissions, learned counsel on behalf of the petitioners relied upon the judgments rendered in the following cases:
(a) Baldev Singh and others v. State of Himachal Pradesh, AIR 1987 SC 1239,
(b) Vishwa Nath v. State of Rajasthan and ors., AIR 1983 Raj 188,
(c) Champa Lal (supra).
3.6. D.B. Civil Writ Petitions No.4425/2023, 10828/2023 & 20795/2024:
3.6.1. In these petitions, challenge is laid to the notifications dated 21.03.2023, whereby Village Barmer Magra (Gram (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (20 of 36) [CW-20142/2024] Panchayat Barmer Magra) has been included in the municipal area of Municipal Council, Barmer ; Village Barmer Gadan (Gram Panchayat Barmer Gadan) has been included in the municipal area of Municipal Council, Barmer and ; Village Barmer Magra (Gram Panchayat Barmer Magra) has been included in the municipal area of Municipal Council, Barmer, respectively. 3.6.2. In regard to these petitions, learned counsel for the petitioners submitted that the arguments advanced in the above-
said other writ petitions may be considered for the purpose of adjudication of these writ petitions as well, looking into the commonality of the legal issues so involved.
4. Submissions made on behalf of the Respondents 4.1. Qua the case of the petitioners vis-a-vis violation of Article 243-Q of the Constitution of India, Mr. Rajesh Panwar, learned Senior Counsel assisted by Mr. Ayush Gehlot; Mr. Manish Patel; Mr. Dixit Panwar; Mr. Divik Mathur, appearing on behalf of the respondents in D.B.C.W.P. Nos. 20142/2024, 6097/2023, 6181/2023 and 10028/2023, submitted that the notification in question is in fact a notification of the State Government. Since the local Government falls in Entry 5 of List II of the Seventh Schedule, it is the State Legislature alone which is competent to legislate in respect of the Municipalities with only one limitation that the provisions of the State Act cannot be inconsistent with the mandate of the scheme of Part IX-A of the Constitution. Thus, the State Government is competent to divide the Municipalities in the State into classes according to their income or other factors (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (21 of 36) [CW-20142/2024] like population, importance of the local area and, the Notification came to be issued by determining the category of the Municipal Corporation/ Municipal Council/Municipal Board. 4.1.1. It was further submitted that the reference to the notification exercising powers under Article 243-Q issued by the State Government vide notification dated 19.02.2021 and creation of Class IV municipality vide notification dated 20.05.2022 already finds its presence in the impugned notifications. Learned counsel therefore submitted that the State Government has already complied with Article 243-Q of the Constitution of India. 4.1.2. It was also submitted that it is pertinent to note here that Article 243 Q (2) of the Constitution does not mandate the Hon'ble Governor in regard to issuance of any notification for the reason that ample discretion has been provided to the Hon'ble Governor vis-a-vis issuance of notification. Further, in case a notification is issued by the Hon'ble Governor, then, it would confer vide powers upon the Hon'ble Governor to determine factors as it deemed fit for setting parameters for constitution of municipality, and therefore, the notifications have been issued in strict compliance of Article 243-Q of the Constitution of India. 4.1.3. In support of such submissions, reliance has been placed upon the judgment rendered in the case of Ashok Khetoliya (supra).
4.2. As regards the maintainability of writ petition, learned Senior Counsel submitted that the instant writ petition is not maintainable by virtue of Article 243-ZG of the Constitution of India. Article 243-ZG has been inserted in Chapter IX-A of the (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (22 of 36) [CW-20142/2024] Constitution by 73rd amendment therein and is analogous to Article 329 of the Constitution of India and Section 30 of the Act of 2009 which bars the Courts from entertaining the writ petition(s) wherein delimitation of wards or election dispute is sought to be questioned.
4.3. On the issue of applicability of Section 3 of Rajasthan Municipalities Act, 2009, learned Senior Counsel submitted that Section 3 of the Act of 2009 provides that the State Government may by notification published in the Official Gazette declare any local area not included within the limits of a Municipality to be a Municipality. While taking such action, there is no condition in Section 3, that any notice to be issued for the purpose of inviting objections from the residents.
4.4. Qua the overriding effect of the non-obstante clause, learned Senior Counsel on behalf of the respondents submitted that Sub- section (10) of Section 3 of the Act of 2009, clearly provides that, "the provisions of Section 3 shall have effect notwithstanding anything contained in the Act of 2009 or in the Rajasthan Panchayati Raj, Act, 1994 (Act No. 13 of 1994) or any other law for the time being in force". In such circumstances, Section 3 has overriding effect over anything contained in the Act of 1994, thus, Section 101 of the Act of 1994 will not apply and the procedure prescribed will not have to be followed.
4.5. Qua the non-applicability of Section 101 of the Act of 1994, learned Senior Counsel submitted that Section 101 of the Act of 1994 provides for situations, wherein the limits of Panchayat Circle are altered or caused to be altered or, as the case may be, for it to (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (23 of 36) [CW-20142/2024] be included within the limits of another Panchayati Circle, the procedure, as provided under Section 101 has to be followed. A bare perusal of the said provision will make it evident that the said provision will only apply in the cases where alterations are made in Panchayat Circles. In the instant matter, though different Gram Panchayats have been declared and included in a Municipality and for that purposes, it has ceased to be a rural area. In such circumstances, Section 101 of the Act of 1994 will not apply to the instant matter and therefore, there is no requirement of publishing one month notice and inviting objections as provided under Section 101 of the Act of 1994. It is clarified here that only in the case of Dungar Ram bearing D.B.C.W. No. 19119/2024, it was a case, whereby, gram panchayats were made and excluded from the Municipality. Therefore, under these circumstances, the State Government after issuing a notification under Section 3 of the Act of 2009, issued a notification under Section 101 of the Act of 1994 in the case of the Dungar Ram. However, as far as the present cases are concerned, it is clarified that Section 101 is non- applicable on account that there is no creation of gram panchayat/ panchayat circle.
4.6. Qua the waiver of the requirement of doctrine of audi alteram partem, learned Senior Counsel in support of his submissions, relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Ashok Khetoliya (supra), wherein it has been held that the power of the State Government to make a declaration under Section 3 of the Act of 2009 is legislative in character because the application of the rest of the provisions of (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (24 of 36) [CW-20142/2024] the Act to the geographical area which is declared as a town area is dependent upon such declaration and therefore, it was envisaged that the maxim of audi alteram partem does not become applicable to the case by necessary implication. 4.7. Qua the conflict between two non obstante clauses, learned Senior Counsel relied upon the judgment rendered Hon'ble Supreme Court in case of Kotak Mahindra Bank Limited v. Girnar Corrugators Private Limited and others, (2023) 3 SCC 210, wherein it has been held as follows:
"at this stage, it is required to be noted that Section 26-E of the SARFAESI Act which is inserted in 2016 is also having a non obstante clause. Even as per the submission on behalf of Respondent 1, two enactments have competing non obstante provision and nothing repugnant, then the non obstante clause of the subsequent statute would prevail over the earlier enactments."
4.7.1. As per the settled position of law, if the legislature confers the later enactment with a non obstante clause, then its presence enunciates the intention of the legislature that the same should prevail over any former conflicting non obstante clause. 4.8. Learned Senior Counsel, in addition to the aforementioned submissions, submitted that after filing of the petitions before this Hon'ble Court, no interim order was passed therein and therefore the notifications at this stage have been executed and the concerned municipalities are fully functioning. At this juncture, in the interest of justice, the said fact also needs to be considered for the reason that this Hon'ble High Court in case of Bhanwara Ram v. State of Rajasthan, (D.B. Civil Writ Petition No. (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (25 of 36) [CW-20142/2024] 6659/2023, dated 16.05.2023) and others has dismissed the stay application and thereafter the Hon'ble Supreme Court also dismissed the Special Leave to Appeal filed against the same. 4.9. In support of such submissions, learned Senior Counsel for the respondents also relied upon the judgments rendered in the following cases:
1. Kotak Mahindra Bank Limited v. Girnar Corrugators Private Limited and others, (2023) 3 SCC 210
2. Bhanwara Ram v. The State of Rajasthan and ors., SLP (C) No. 17495/2023 dated 18.08.2023) 4.10. Apart from the above, learned counsel representing the respondent No.8, submitted that the present respondent is an agriculturist and resident of Panchayat Goluwala Siyagan and was not initially a party to the petition, however, he had filed an application for being impleaded as a party to the present case and the same was allowed by this Court vide order dated 07.10.2023. 4.11. It was further submitted that the present case in nature of a PIL is not maintainable more for the reason that it alleges the process enumerated under Section 101 of the Act of 1994 which provides for inviting objections or providing opportunity of hearing have not been followed by the State.
4.11.1. In this regard, it was submitted that the contention as raised by the petitioner is not maintainable as the State Government has constituted Municipal Board Goluwala as per the procedure prescribed under Section 3 of the Act of 2009 for which (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (26 of 36) [CW-20142/2024] there is no requirement of inviting any objections or providing opportunity of hearing to local residents of the area. 4.11.2. It was also submitted that the differentiation between the Act of 1994 and the Act of 2009 is writ large. The first difference being in the definition itself, that is under the Act of 1994, Panchayati Raj institution as defined under Section 2 (xvii) means an institution of self government established under this Act and for that purpose establishment procedure is provided under Section 101 of the Act of 1994 which provides for publication of notice in the prescribed manner followed by a notification of establishment.
Whereas, under the Act of 2009, a Municipal Area means territorial area of municipality as notified by the State Government from time to time and for the said notification as required there is no prerequisite to be followed, even Section 3 of the Act of 2009 which deals with creation of Municipalities, which states that the State Government may by notification published in Official Gazette declare any local area to be municipality meaning thereby no prior procedure to give notice or call for objection etc., is required and there is directly a notification required to be published by the State for the purpose of creation/delimitation of municipality. 4.11.3. It was further submitted that the present petition has been filed with malafide and vested interest of the petitioners who are relatives of Sarpanch of Goluwala, Siyagan and they wanted to be Chairperson of the Municipal Board but could not succeed in their endeavours.
4.11.4. It was also submitted that even a specific resolution passed by the Gram Panchayat Goluwala Niwadan and Goluwala (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (27 of 36) [CW-20142/2024] Siyagan on 21.04.2023 regarding the constitution of the Panchayat into Municipal Board thereafter a detailed proposal was prepared by SDO and sent to the District Collector, Hanumangarh on 02.06.2023 for the same.
4.11.5. It was further submitted that the Goluwala Mandi which is the main kingpin of the controversy is about 50 years old and is highly populated and therefore it was divided into 2 Gram Panchayats. Learned counsel further highlighted that this Mandi overtime has evolved into almost a small town, thus it was felt that proper organization and development for regulation is the need of the hour and also a fundamental right of petitioner as enshrined Article 21 and Directive Principles of State Policy of the Constitution of India.
4.11.6. It was also submitted that due to limited budget and financial constraints, development of area was also stagnated, the problem of improper roads, street lighting, sanitisation, drainage, water logging etc. became writ large and the present respondent as well as other residents were being adversely affected and therefore the constitution of Municipal Board is justified as the same has led to the better organization and equipped administration for the place.
4.11.7. It was lastly submitted that in addition to the aforementioned, the State has a corresponding duty to provide for the same and any attempt to stop the same by the persons having vested interest is nothing but taking the municipality back from the path of development.
(Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (28 of 36) [CW-20142/2024]
5. Heard learned counsel for the parties as well as perused the record of the case, along with the judgments cited at the Bar.
6. At the outset, this Court observes that that record of the case and the facts pleaded in the instant petitions clearly reveals that broadly the controversy involved in all the present petitions is common, and therefore for the purpose of the present analogous adjudication this Court deems it appropriate to set out the following issues:
(i) Whether the impugned notifications are violative of the mandate of law required under Article 243-Q of the Constitution of India?
(ii) Whether the modus operandi of issuing the impugned notifications by the State Government is in accordance with the statutory mandate provided under the Act of 1994, Act of 2009 and the Principles of Natural Justice?
7. This Court observes that in the instant case, the vires of the aforementioned impugned notifications is under challenge and to determine the validity of the same, it becomes pertinent to determine if the same are intra vires the mandate and the parameters laid under Article 243-Q of the Constitution of India.
8. This Court further observes that by way of the 73 rd and 74th Amendment Act, 1992, Part IX and IX-A were added to the Constitution of India, which provided for the local self governments. These were introduced as part of bringing into reality the dream envisioned by the father of our nation to set up local self governments and ensure grass-root democracy. (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (29 of 36) [CW-20142/2024]
9. This Court also observes that for the purpose of this case, it is relevant to refer to Article 243-P(e) of the Constitution of India which defines the term "Municipality" to mean an institution of self-government constituted under Article 243-Q.
10. Article 243-Q of the Constitution of India reads as follows:
"243-Q. Constitution of Municipalities. - (1) There shall be constituted in every State-
(a) Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural to an urban area;
(b) a Municipal Council for smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:
Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit by public notification, specify to be an industrial township.
In this article, "a transitional area", "a smaller urban area"
or "a larger urban area" means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non- agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part."
11. This Court is conscious of the judgment rendered in the case of Champa Lal (supra), relevant portions of which are reproduced as follows:
(Downloaded on 28/02/2025 at 11:36:26 PM)
[2025:RJ-JD:966-DB] (30 of 36) [CW-20142/2024] "Article 243-Q contemplates the constitution of three different categories of bodies known as (1) Nagar Panchayat for transitional area (2) Municipal Council for a smaller urban areas, and (3) Municipal Corporation for a larger urban area. It is declared under Article 243-Q(2) that the expressions "a transitional area", "a smaller urban area" and a "larger urban area" (hereinafter collectively referred to as "Areas") would mean such areas as may be specified by the Governor by a public notification for the purpose of Part IX-A of the Constitution of India. Article 243-Q(2) further obligates the Governor to have due regard to the various factors mentioned therein before specifying the Areas i.e., the population of the area, the density of the population, the revenue generated in the area for local administration, percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit.
8. It, therefore, appears from the scheme of Article 243-Q(2) that the Governor is not free to notify "Areas" in his absolute discretion but is required to fix the parameters necessary to determine whether a particular AREA is transitional area or a smaller urban area or a larger urban area with due regard to the factors mentioned above. It is implicit that such parameters must be uniform for the entire State. It is only after the determination of the parameters, various municipal bodies contemplated under Article 243-Q(1) could be constituted."
12. This Court is also conscious of the judgment rendered in the case of Ashok Khetoliya (supra), wherein while explaining the scope of legislative power vis-a-vis Article 243-Q, the Hon'ble Supreme Court held as follows:
"16. Since the local Government falls in entry 5 of List II of the Seventh Schedule, therefore, it is the State Legislature alone which is competent to legislate in respect of the municipalities with only one limitation that the provisions of the State Act cannot be inconsistent with the mandate of the Scheme of Part IXA of the Constitution. The scheme of Part IXA of the (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (31 of 36) [CW-20142/2024] Municipalities Act does not contemplate a separate notification under Article 243Q of the Constitution and thereafter under Section 5 of the Municipalities Act. As Section 5 of the Municipalities Act is not inconsistent with any provisions of Article 243Q of the Constitution, therefore, two notifications are not contemplated or warranted under the Scheme of Part IXA or the Municipalities Act as reproduced in the table above. "
13. This Court in light of the aforementioned observes that discretionary power has been vested in the Hon'ble Governor under Article 243-Q(2) of the Constitution of India and a bare perusal of the same, highlights that, it does not mandate issuance of any notification merely on count of ample discretion having been conferred. Further, in case such a notification is to be issued, wide powers in this regard have been conferred upon the Hon'ble Governor, to determine factors as deemed fit for setting parameters for constitution of municipality. Thus, the impugned notifications are in compliance of Article 243-Q of the Constitution of India. Thus, the aforesaid Issue (i) stands answered accordingly.
14. This Court is also conscious of the judgment rendered in the case of Ashok Khetoliya (supra), wherein the Hon'ble Supreme Court discussed the case of Champa Lal (supra) and settled the question of law vis-a-vis discretionary power of the Hon'ble Governor by referring to the judgment rendered by a three-Judge Bench in the case Parmar Samantsinh Umedsinh v. State of Gujarat & Ors. (2022) 15 SCC 364, relevant portions of which are reproduced as follows:
"13. In Champa Lal, this Court had struck down a notification issued by the Governor of the State of Rajasthan holding that (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (32 of 36) [CW-20142/2024] in the absence of notification which meets the requirement of Article 243Q(2), the entire exercise undertaken by the State of Rajasthan in upgrading the Napasar Village Gram Panchayat to be a Nagarpalika is inconsistent with the requirements provided thereof under the Constitution. "14. We find that such judgment is not in tune with the scheme of the Constitution and is contrary to a three-Judge Bench judgment of this Court reported as Parmar Samantsinh Umedsinh v. State of Gujarat & Ors.7 wherein the vires of the Gujarat Provincial Municipal Corporation Act, 1949 were subject matter of challenge on the ground that the State law has provided more than one representative from a single Ward and, thus, this provision is inconsistent with the provisions of Article 243R and Article 243S of the Constitution. This Court held as under:
"19. The power of competent Legislature, i.e., State Legislature in the light of enabling provisions provided in the Constitution with regard to framing of laws concerning Legislature cannot be whittled down by way of restrictive interpretation as contended by the appellants. The State Legislature in federal set up specially in the matter of local Government are to enable enough seats to adopt the reservation based on local body.
xxx xxx xxx
35. The ratio which can be culled out from the above judgment is that power of the State to legislate within its legislative competence is plenary and the same cannot be curtailed in the absence of an express limitation placed on such power in the Constitution itself."
15. This Court therefore observes that in the present case, the legislature is competent to enact any legislation within its competency and the power of the legislature cannot be whittled down or curtailed in absence of any express provision in that regard. Therefore, the provisions contained in the Act of 1994 and the Act of 2009 are well within the legislative power of the legislature and any administrative/executive action pursuant to (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (33 of 36) [CW-20142/2024] the same will also be intra-vires the constitutional scheme and the principles of natural justice.
16. This Court further observes that the legality of the impugned notifications and the scope of non-interference in the instant case, depends upon the compliance with provisions of the Act of 1994 and the Act of 2009.
16.1. The relevant provisions in the present case are Section 3 of the Act of 2009 and Section 101 of the Act of 1994, which are reproduced as hereunder:
"3. Delimitation of Municipalities. - (1) The State Government may, by notification published in the Official Gazette, declare any local area not included within the limits of a Municipality to be a Municipality, or include any such area in a Municipality, or exclude any local area from a Municipality, or otherwise alter the limits of any Municipality and when (a) any local area is declared as, or included in, a Municipality, or (b) any local area is excluded from a Municipality, or (c) the limits of a Municipality are otherwise altered, by amalgamation of one Municipality into another or by splitting up a Municipality into two or more Municipalities...
(10) Save as otherwise provided in this Section its provisions shall have effect notwithstanding anything contained in this Act or in the Rajasthan Panchayati Raj Act, 1994 (Act No.13 of 1994) or any other law for the time being in force."
"101. Alteration in the limits of a Panchayati Raj Institution.- (1) The State Government may, at any time, after one month's notice published in the prescribed manner either on its own motion or at the request made in this behalf, and by notification in the Official Gazette- (a) declare the whole or a part of any local area included within the limits of a Municipality to be a Panchayat Circle; or (b) include in a Panchayat Circle and such local area or a part thereof, or as the case may be, any local area included within the limits of another Panchayat Circle; or (c) otherwise alter the limits of a Panchayat Circle by amalgamating one Panchayat Circle into another or by splitting up a Panchayat Circle into two or more Panchayat Circles; ... (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (34 of 36) [CW-20142/2024] (7) Save as otherwise provided in this section its provisions shall have effect, notwithstanding anything contained in this Act or the Rajasthan Municipaities Act, 1959 (Rajasthan Act 38 of 1959) or any other law for the time being in force."
17. This Court observes that, the bone of the contention in the instant case, lies in the applicability of the Act of 1994 and the Act of 2009. The relevant provisions in the present case are Section 3 of the Act of 2009 and Section 101 of the Act of 1994. Section 3 does not expressly provide for any requirement vis-a-vis notice, however, Section 101 presents the requirement of one month's notice.
17.1. This Court further observes that both these provisions which expound different requisites contain non obstante clauses respectively, which ousts the applicability of the other Statute and corresponding relevant provisions within it. Therefore, for resolving the controversy at hand, it becomes pertinent to first answer the question as to which out of the two provisions will prevail if both of them have a non obstante clause. 17.2. This Court in this regard, observes that as per the judgment rendered in the case of Kotak Mahindra Bank Limited (supra), the position of law is that, when two enactments have competing non obstante provisions and nothing repugnant, then the non obstante clause of the subsequent statute would prevail over the earlier enactments and therefore the non obstante clause in the Act of 2009 would prevail over the non obstante clause in the Act of 1994.
17.3. This Court therefore observes that, in such a scenario Section 3 of the Act of 2009 would prevail over Section 101 of the (Downloaded on 28/02/2025 at 11:36:26 PM) [2025:RJ-JD:966-DB] (35 of 36) [CW-20142/2024] Act of 1994, and in such a case, the requirement of one month notice as enshrined under Section 101 is not necessary to be complied with.
18. Further, with regard to the submission made on behalf of the petitioners regarding the failure to fulfil the principles of natural justice, specially the maxim of Audi Alteram Partem, this Court is conscious of the ratio laid down in the case of Ashok Khetoliya (supra), relevant paras of which are reproduced as follows:
"11. This Court in Tulsipur Sugar Co. Ltd. held as under:
"7. We are concerned in the present case with the power of the State Government to make a declaration constituting a geographical area into a town area under Section 3 of the Act which does not require the State Government to make such declaration after giving notice of its intention so to do to the members of the public and inviting their representations regarding such action. The power of the State Government to make a declaration under Section 3 of the Act is legislative in character because the application of the rest of the provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration. Section 3 of the Act is in the nature of a conditional legislation. Dealing with the nature of functions of a non- judicial authority, Prof. S.A. De Smith in Judicial Review of Administrative Action (3rd Edn.) observes at p. 163:
"However, the analytical classification of a function may be a conclusive factor in excluding the operation of the audi alteram partem rule. It is generally assumed that in English law the making of a subordinate legislative instrument need not be preceded by notice or hearing unless the parent Act so provides." xx xx xx
9. We are, therefore, of the view that the maxim "audi alteram partem" does not become applicable to the case by necessary implication."(Downloaded on 28/02/2025 at 11:36:26 PM)
[2025:RJ-JD:966-DB] (36 of 36) [CW-20142/2024]
19. This Court in light of the aforementioned, observes that in the instant case the maxim "audi alteram partem" in absence of any express provision, is not applicable merely by necessary implication and therefore, the impugned notifications do not suffer from any illegality on that count as well. Thus, the Issue (ii), as aforesaid, stands answered accordingly.
20. This Court observes that the notifications impugned in the present writ petitions were issued in accordance with Article 243- Q of the Constitution of India & Section 3 of the Act of 2009 and without any deviation from the principles of natural justice. Resultantly, the impugned notifications do not suffer from any illegality, so as to warrant any interference by this Court in the present adjudicatory pursuit.
21. In light of the aforesaid observations, this Court does not find it a fit case so as to grant any relief to the petitioners herein, and the judgments cited at the Bar on behalf of the petitioners do not render any assistance to their case herein.
22. Consequently, the present writ petitions are dismissed. All pending applications stand disposed of.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J SKant/-
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