Gujarat High Court
Keshavlal Valjibhai Thakkar And Ors. vs Government Of Gujarat And Ors. on 7 December, 1995
Equivalent citations: (1996)2GLR313
Author: R.M. Doshit
Bench: R.M. Doshit
JUDGMENT B.C. Patel, J.
1. In these petitions, the petitioners have challenged the notifications, declaring certain areas as "transitional areas" and "smaller urban areas."
With regard to Mehmedabad Nagar Panchayat, under Section 5 notification No. KV-154 of 94-NPL-4593-3564-M, under Section 266-B(d) notification No. KV-240 of 94-NPL-4593-3564-M and under Article 243-Q, notification No. KV-73 of 94-NPL4593-3504-M are issued by the State Government which are challenged in Spl. C.A. No. 5774 of 1994.
With regard to Lunawada Nagar Panchayat, under Section 5 notification No. KV-157 of 94-NPL-4593-3564-M, under Section 266-B(d) notification No. KV-243 of 94-NPL-4593-3504-M and under Article 243-4, notification No. KV-73 of 94-NPL-4593-3504-M are issued by the State Government which are challenged in Spl. C.A. No. 5775 of 1994.
With regard to Kheda Nagar Panchayat, under Section 5 notification No. KV-104 of 94-NPL-4593-3564-M, under Section 266-B(d) notification No. KV-191 of 94-NPL-4593-3594-M and under Article 243-4, notification No. KV-72 of 94-NPL-4593-3504-M are issued by the State Government which are challenged in Spl. C.A. No. 5776 of 1994.
With regard to Dakor Nagar Panchayat, under Section 5 notification No. KV-102 of 94-NPL-4593-3S64-M, under Section 266-B(d) notification No. KV-189 of 94-NPL-4593-3594-M and under Article 243-4, notification No. KV-72 of 94-NPL-4593-3504-M are issued by the State Government which are challenged in Spl. C.A. No. 5777 of 1994.
With regard to Harij Nagar Panchayat; under Section 5 notification No. KV-112 of 94-NPL-4593-3564-M, under Section 266-B(d) notification No. KV-199 of 94-NPL-4593-3564-M and under Article 243-4, notification No. KV-72 of 94-NPL-4593-3504-M are issued by the State Government which are challenged in Spl. C.A. No. 5778 of 1994.
With regard to Mansa Nagar Panchayat, under Section 5 notification No. KV-114 of 94-NPL-4593-3564-M, under Section 266-B(d) notification No. KV-232 of 94-NPL-4593-3564-M and under Article 243-Q, notification No. KV-72 of 94-NPL-4593-3504-M are issued by the State Government which are challenged in Spl. C.A. No. 5779 of 1994.
With regard to Halol Nagar Panchayat, under Section 5 notification No. KV-156 of 94-NPL-4593-3540-M, under Section 266-B(d) notification No. KV-241 of 94-NPL-4593-3504-M and under Article 243-4, notification No. KV-73 of 94-NPL-4593-3504-M are issued by the State Government which are challenged in Spl. C.A. No. 5610 of 1994.
With regard to Halvad Nagar Panchayat, under Section 5 notification No. KV-130 of 94-NPL-4593-3504-M, under Section 266-B(d) notification No. KV-217 of 94-NPL-4593-3504-M and under Article 243-4, notification No. KV-72 of 94-NPL-4593-3504-M are issued by the State Government which are challenged in Spl. C.A. No. 6293 of 1994.
2. In exercise of powers conferred by Sub-section (1) of Section 5 of the Gujarat Municipalities Act, +1963 (hereinafter referred to as the Municipalities Act, 1963), Government of Gujarat incorporated with effect from 15-4-1994, certain Nagar Panchayats in place of municipal boroughs as indicated in the notifications and also incorporated Municipalities with effect from 15-4-1995 certain Borough Municipalities as Municipalities, as indicated in the notifications.
3. In exercise of powers under Section 266(B) of the Municipalities Act, 1963, the State Government appointed a person named in the notification to be an "Administrator" to exercise the powers and to perform duties and functions of the said Municipality w.e.f. 15-4-1994 till the elected body takes over.
4. Some of the petitioners have prayed to declare Section 266-B of the Municipalities Act, 1963 as amended by Gujarat Act No. 17 of 1993 (hereinafter referred to as the amended Municipalities Act) as unconstitutional, ultra vires being violative of Articles 243-N and 243-2F of the Constitution of India.
5. With a view to appreciate the question raised in these petitions, it will be necessary to refer to the relevant provisions of Gujarat Panchayats Act, 1961 (hereinafter referred to as the Panchayats Act, 1961).
6. The State legislature enacted the Panchayats get, 1961 to consolidate and amend the law relating to Village Panchayat and District Local Boards in the State of Gujarat with a view to reorganise the administration pertaining to local Government in furtherance of the object of the democratic decentralisation of powers in favour of different classes of Panchayats.
By Sub-sections 2(11), (12) and (13), Gram, Gram Panchayat and Gam Sabha are defined while Nagar and Nagar Panchayats are defined in sub-clauses (17) and (18) of Section 2. Section 9(1) of the Panchayats Act, 1961 provides for declaration of Nagar and Gram Panchayat. Any local area comprising of a revenue village or a group of revenue villages or hamlets forming part of a revenue village, or such other administrative unit or part thereof, if the population of such local area exceeds 10,000 but does not exceed 25,000 is declared as a Nagar and if the population of such local area does not exceed 10,000, is declared as a Gram. Section 9 of the Panchayats Act, 1961 is the relevant section, and hence it is reproduced hereunder:
9. (1) After making such inquiries as may be prescribed, the State Government may, by notification in the Official Gazette, declare any local area, comprising a revenue village, or a group of revenue villages, or hamlets forming part of a revenue village, or such other administrative unit or part thereof, -
(a) to be a nagar, if the population of such local area exceeds 10,000 but does not exceed 25,000, and (b) to be a gram, if the population of such local area does not exceed 10,000:
Provided that if in the case of a local area which is eligible for being declared as a nagar under Clause (a), the State Government having regard to the geography, extent of urban development and such other factors in relation to that area as may be prescribed and after consulting the local authority if any, constituted for such local area, is of the opinion that the local area should be declared to be a gram, the State Government may by a like notification declare the local area to be a gram:
Provided further that if in the case of a local area, which is eligible for being declared as a gram under Clause (b), the State Government having regard to the geography, extent of urban development and such other factors in relation to that area as may be prescribed, and after consulting the local authority, if any, constituted for such local area, is of the opinion that the local area should be declared to be a nagar, the State Government may by a like notification declare the local area to be a nagar.
(1A) Notwithstanding anything contained in Sub-section (1) and Section 4 of the Gujarat Municipalities Act, 1963, if the State government having regard to the geography, extent or urban development and such other factors in relation to a municipal borough, as may be prescribed, and after consulting the municipality constituted for such municipal borough is of the opinion that the area comprised in the municipal borough be declared to be a gram or nagar, the State Government may, by notification in the Official Gazette, declare the area comprised in the municipal borough and specified in the notification to be a gram or nagar.
(2) After consultation with the taluka panchayat, the district panchayat and the nagar or gram panchayat concerned (if already constituted) the State Government may by a like notification, at any time -
(a) include within, or exclude from, any nagar or gram, any local area or otherwise alter the limits of any nagar or gram; or
(b) declare that any local area shall cease to be a nagar or gram, or having regard to Clauses (a) and (b) of Sub-section (1), declare the whole area comprised in a gram or the part thereof to be a nagar or two or more grams or the whole area comprised in a nagar to be a gram or split up the area comprised in the nagar into a nagar and a gram or into two or more grams, and thereupon the local area shall be so included or excluded, or the limits of the nagar or gram so altered or the local area shall cease to be a nagar or gram or, as the case may be, the area declared to be a nagar or gram shall be a nagar, or gram as the case may be.
Constitution of Panchayat and their terms are provided in Sections 12 and 13 of the Panchayats Act, 1961.
7. The State legislature has enacted Municipalities Act, 1963 to consolidate and amend the law relating to the Municipalities in the State of Gujarat so as to give them wider powers in the management of municipal affairs. Municipal borough is defined in Section 2(13) and it means a local area declared as or deemed to be a municipal borough under Section 4 of the Municipalities Act, 1963. So far as the declaration of municipal boroughs and alteration of their limits, Section 4 provides for the same in detail. There is a special provision for declaration for nagar as municipal borough, vide Section 4(a) of the Municipalities Act, 1963. What should be the number of councillors in a municipal borough is provided in Section 5 which also indicates the reservation of certain seats to be filled in the manner provided in the said section. Section 266-B indicates the powers of the State Government to make suitable provision by an order when a municipal borough is altered.
8. What would be the effect of conversion of a nagar panchayat into a municipality is indicated in Section 266-B of the Act.
266-B. Where under Sub-section (1) of Section 4A an area comprised in a nagar becomes a municipal borough or under Sub-section (2) or Sub-section (3) of Section 4A an area comprised in a gram or a nagar is declared to be, a municipal borough, then with effect from the date on which such local area becomes or is so declared to be a municipal borough (in this section referred to as "the said date") the following consequences, shall, notwithstanding anything contained in this Act or the Panchayats Act, ensue that is to say -
(a) a panchayat functioning in the local area shall stand dissolved and the Sarpanch and the upa-Sarpanch or as the case may be, the Chairman and the Vice-Chairman and all other members of such panchayat shall vacate their offices.
(b)(i) the member elected by the gram panchayat of the gram shall cease to be the member of the Nyaya Panchayat constituted for a group of grams and the said Nyaya Panchayat shall continue to function in respect of the group of grams excluding the local area unless the number of grams remaining in the group is rendered less than three;
(ii) The Nyaya Panchayat of the dissolved nagar panchayat shall stand dissolved and all members thereof shall vacate their offices;
(iii) The conciliation panch of the dissolved panchayat shall cease to exist.
(c) until, a municipality is constituted for the municipal borough under the Municipalities Act, there shall, notwithstanding anything contained in any law for the time being in force, be constituted for the municipal borough an interim municipality.
(d) the State Government shall appoint an Administrator or Administrators to exercise the powers and perform the duties and functions of the interim municipality until a municipality is constituted for the municipal borough under this Act.
Provided....
9. Parliament by an Act, viz., the Constitution (73rd Amendment) Act, 1992 inserted Part IX providing independent system of Panchayats. Article 243 defines Panchayats and it means an institution by whatever name called of self-Government constituted under Article 243-B for the rural areas. Article 243-B provides for constitution of Panchayat, which reads as under:
243-B Constitution of Panchayats.-
(i) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Act.
(2) Notwithstanding anything in Clause (1), Panchayat at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs.
Article 243-C provides for composition of Panchayat. Article 243-D provides for reservation of seats. Article 243-E provides for duration of Panchayats, etc., which reads as under:
243-E Duration of Panchayat etc. (1) Every Panchayat, unless sooner dissolved under any law for the time being in farce, shall continue for five years from the date appointed for its first meeting and no longer.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in Clause (1).
(3) An election to constitute a Panchayat shall be completed
(a) before the expiry of its duration specified in Clause (1).
(b) before the expiration of a period of six months from the date of its dissolution:
Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat.
(4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under Clause (1) had -it not been so dissolved.
Article 243-F provides for disqualification of membership. Article 243-G provides for powers, authority and responsibilities of Panchayats. Article 243-H provides for powers to impose taxes by, and funds of, the Panchayats. Article 243-1 provides for constitution of Finance Commission to review financial position. Article 243-5 provides for audit of accounts of Panchayats. Article 243-K provides for elections of the Panchayats. Article 243-L provides for application to Union territories. Article 243-M provides for parts not to apply certain areas. Article 243-N provides for continuance of existing laws and Panchayat. This part has come into force w.e.f. 20-4-1993. Part IX-A has been inserted in the Constitution by the Constitution (74th Amendment) Act, 1992, which has come into force w.e.f. 1-6-1993. Article 243-P (e) defines "Municipality" means an institution of self Government constituted under Article 243-Q. Article 243-P(f) defines Panchayats and it means a Panchayat constituted under Article 243-B. Article 243-0 provides for constitution of Municipality which reads as under:
243-Q. Constitution of Municipalities.- (1) There shall be constituted in every State,
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;
(b) a Municipal Council for a 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.
(2) 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 of non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purpose of this Part.
Article 243-R provides for composition of Municipalities. Article 243-S provides for constitution and composition of wards, committees etc. Article 243-T provides for reservation of seats. Article 243-U provides for duration of Municipality etc. which reads as under:
243-U Duration of Municipalities, etc. -
(1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer:
Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any- level, which is functioning immediately before such amendment, till the expiration of its duration specified in Clause (1).
(3) An election to constitute a Municipality shall be completed,,
(a) before the expiry of its duration specified in Clause (1).
(b) before the expiration of a period of six months from the date of its dissolution:
Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clauses for constituting the Municipality for such period.
(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only -for the remainder of the period for which the dissolved Municipality would have continued under Clause (1) had it not been so dissolved.
Article 243-V provides for disqualification for membership. Article 243-W provides for powers, authority and responsibility of Municipalities, etc. Article 243-X provides for powers to impose taxes by, and funds of, the Municipalities. Article 243-V provides for Finance Commission: Article 243-2 provides for audit of account of Municipalities. Article 243-ZA provides for elections to the Municipalities. Article 243-ZB provides for application to Union territories. Article 243-ZC provides for part not to apply to certain areas. Article 243-ZD provides for committee for district planning. Article 243-ZB provides for committee +for metropolitan planning. Article 243-ZF provides for continuance of existing laws of Municipality.
10. It appears that in view of the provisions of the Constitution, the State legislature has amended Gujarat Municipalities Act, 1963, by Act No. 17 of 1993, w.e.f. 17-8-1993, Sub-section (7A) of Section 2 of the amended Municipalities Act defines "election" as under:
2(7A) "election means and included the entire election process commencing from the division of wards and all stages culminating into election of a councillor and it is always deemed to have meant and included the entire election process as aforesaid.
Sub-clause (13) of Section 2 of the Municipalities Act is also amended in view of the provisions of the Constitution, and the said section the amended Municipalities Act reads as under:
2(13) "Municipal Borough" means a transitional area or as the case may be a smaller urban area as specified in Clause (2) of Article 143-4 of the Constitution of India and includes other areas already declared to be Municipal Borough prior to the commencement of the Gujarat Municipalities (Amendment) Act, 1993.
Sub-sec. (14) of Section 2 of the amended Municipalities Act defines municipality, which reads as under:
2(14) "municipality" means Nagar Panchayat constituted under Section 5(1) or as the case may be, "Municipal Council" constituted under Section 5(2).
Section 5 of the Gujarat Municipalities Act 1963, has also been substituted by Act No. 17 of 1993, and the substituted section reads as under:
5. Incorporation of Nagar Panchayat and Municipal Council. -
(1) In every transitional area there shall be Nagar Panchayat and every such Nagar Panchayat shall be a body corporate by the name of 'the... Nagar Panchayat' and shall have perpetual succession and a common seal and may sue and be sued in its corporate name through its chief officer;
(2) In every small (sic. smaller) urban area there shall be a Municipal Council and every such Municipal Council shall be B body corporate by the name of 'the... Municipal Council' and shall have perpetual succession and a common seal, and may sue and be sued in its corporate name through its chief officer.
So far as the elected councillors are concerned, Section 6 has been substituted by the amended Municipalities Act relevant provision reads as under:
6. Municipality to consist of elected Councillors.
(1) Every Municipality shall consist of elected councillors.
This section also provides for reservation in consonance with the provisions made in the Constitution. So far as the determination of number of councillors to be elected and determination of wards are concerned, the same are provided by Section 7 of the amended Municipalities Act, which reads as under:
7. Determination of number of councillors to be elected and determination of wards.-
(1) Each Municipality shall consist of councillors chosen by direct election.
(2) Where general election is to be held immediately after,-
(i) the specification of a local area as a "transitional area" or as the case may be, a smaller urban area under Article 243-4 of the Constitution of India is made, or
(ii) the Census is taken under the Census Act, 1948, and the relevant figures of which have been published, or
(iii) the limits of a Municipal Borough are altered:
(a) The State Government shall, by notification in the Official Gazette, determine the number of wards into which the Municipal Borough shall be divided, the number of councillors to be elected to the Municipality and the number of seats to be reserved in favour of the Scheduled Castes, the Schedule Tribes, the backward classes and women as provided in Sub-section (3) of Section 6.
(b) The State Election Commission thereafter shall carry out the determination of the boundaries of the wards and the allocation of seats reserved in favour of the Scheduled Castes, the Scheduled Tribes, the backward classes and women among the wards in the prescribed manner.
11. Chapter XVII-A of the Gujarat Municipalities Act pertains to special provisions for conversion of gram into municipalities. The State legislature amended some of the provisions contained in this part in consonance with the provisions contained in the Constitution of India. Section 266-B pertaining to effect of conversion of a gram panchayat into municipality is also amended, and it reads as under:
266-B. Where an area comprised in a gram is specified as a transitional area, or as the case may be, a smaller urban area under Clause (2) of Article 243-Q of the Constitution of India, then with effect from the dare on which such area is so specified, the following consequences shall ensue that is to say....
Sub-clause (a) of Section 266-B as it stood earlier is to be read even today as the same is not amended. That clause reads as under:
(a) the Panchayat functioning in the local area shall stand dissolved and the Sarpanch and the upa-Sarpanch or as the case may be, the Chairman and the Vice-Chairman and all other members of such panchayat shall vacate their offices;
According to Sub-clause (d) of Section 266-B of the amended Municipalities Act, the State Government is empowered to appoint an officer as an Administrator to exercise the powers and perform duties and functions of the Municipality for such area, until the Municipality is constituted for such area under this Act. Sub-clause (dd) of Section 266-B provides for reconstitution, which reads as under:
(dd) the Municipality shall be reconstituted within a period of six months from the said date in accordance with the provisions of this Act. The duration of such reconstituted Municipality and the councillors shall be the same as provided in Section 8 of this Act.
12. Section 281 of the amended Municipalities Act provides for transitory provisions which reads as under:
281. Transitory provision (Guj. 17 of 1993) - (1) Notwithstanding anything contained in this Act, where the duration of the Municipality has already expired before the date of the commencement of the Gujarat Municipalities (Amendment) Act, 1993, (hereinafter referred to as '"the said date" in this section) or is due to expire within one year from the said date, the election to constitute such Municipality shall be completed within one year from the said date in accordance with the provision of this Act.
(2) Where the duration of the existing Municipality expires after one year from the said date, the election to constitute such Municipality shall be completed before the expiry of its duration in accordance with the provisions of this Act.
(3) Where an area is specified as transitional area or as the case may be a smaller area, under Clause (2) of Article 243-Q of the Constitution of India during the period of six months from the said date, the election to constitute the Municipality for such area shall be completed within one year from the said date in accordance with the provisions of this Act.
(4) Where an election to constitute Municipality could not be completed or it is not possible to hold the election to constitute a Municipality as provided in this section on account of unforeseen circumstances such as natural calamity, riots, communal disturbances, all powers and duties of the Municipality shall be exercised and performed by such officer as the State Government may by order appoint in this behalf.
Thus, where the area is specified as a transitional area, or a smaller urban area, under Clause (2) of Article 243-4 of the Constitution, during the period of six months from the said date, then it is the duty of the authority to see that election to constitute the Municipality for such area is completed within one year from the said date in accordance with the provisions of this Act.
13. Gujarat Panchayats Act, 1961 which we have referred to earlier, has been repealed by Gujarat Panchayats Act, 1993 and has come into force w.e.f. 15-4-1994. This Act has been, enacted so as to bring the provisions in conformity with the provisions contained in the Constitution (73rd Amendment) Act, 1992.
14. When the Gujarat Panchayats Act, 1961 was in force, i.e., on 14th April 1994, in exercise of powers conferred by Clause (2) of Article 243-4 of the Constitution of India, the Government of Gujarat, having regard to the population of the area, the density of the population therein and the economic importance of the area, specified the local area comprised in a gram or nagar as the case may be, declared as such under See. 9 of the Gujarat Panchayats Act, 1961 mentioned in column 2 of the Schedule to the notification (No. KV 72-1994-NPL - 4593-3504-M, Annexure 'A' to S.C.A. No. 5776 of 1994) to be a transitional area mentioned against it in column 3 thereof. Thus, the area declared as a gram or nagar under the Gujarat Panchayats Act, 1961 was declared as a transitional area. For Example, Kheda Nagar Panchayat (S.C.A. No. 5776 of 1995) which was a nagar panchayat under the provisions of Gujarat Panchayats Act, 1961 is declared as a transitional area. In the same way, area declared as gram or nagar under the Gujarat Panchayats Act 1961, mentioned in column 2 of the notification No, KV-73 of 94-NPL-4593-3504-M published on 14-4-1994 is declared as a smaller urban area (vide Annexure "A" to S.C.A. No. 5774 of 1994), Mahemdabad Nagar Panchayat was declared as a nagar under Gujarat Panchayats Act, 1961 became a smaller urban area.
15. As gram or nagar came to the declared as a transitional area under Article 243-4(2) of the Constitution of India, vide notification referred to hereinabove dated 14-4-1994 and as a nagar panchayat was required to be incorporated for the municipal borough, in exercise of powers conferred by sub-sec; (1) of Sec, 5 of +the Gujarat Municipalities Act, 1963, Government of Gujarat incorporated with effect from 15th April 1994 a nagar panchayat for a municipal borough to be known as a nagar panchayat. In view of provisions contained in sub-sec. +(13) of Section 2 of the amended Municipalities Act, the area declared as a transitional area or a smaller urban area or the area declared as municipal borough prior to the amended Municipalities Act are deemed to he a municipal borough or Continued to be a municipal borough.
16. Section 5 of the amended Municipalities Act provides for- incorporation of a nagar panchayat for every transitional area. Notification Nos.+ KV-74 of 94-NPCL-4593-3504-7 to KV-136 of 94-NPL-4593-3504-M were issued on 14th April 1994 for incorporating nagar panchayats with effect from 15th April 1994 for transitional area mentioned in the said notifications,
17. Similarly, as a gram or nagar came to be declared as a smaller urban area under Article 243-Q (2) of the constitution of India, vide notification dated 14th April 1994, and as a Municipality was required to be incorporated for the municipal borough, in exercise of powers conferred by Sub-section (+2) of Section 5 of the Gujarat Municipalities Act, 1963, Government of Gujarat, vide notifications No. KV-137 of 94-NPL-4593-3504-M to KV-160 of NPL-4593-3504-M dated 14th April 1994, incorporated with effect from 15th April 1994 a Municipality-for municipal borough to be known as a Municipality for the smaller urban areas mentioned in notification No. KV-73 of 94-NPL-4593-3504-M.
18. In view of Sub-section (2) of Section 5 of the amended Municipalities Act, for every smaller urban area, there shall be a Municipal Council which shall be a body corporate, known as a Municipality in view of Sub-section (14) of Section 2. Similarly, nagar panchayat constituted under Sub-section (1) of Section 5 of the amended Municipalities Act is also known as a Municipality in view of the said sub-section.
19. On an area being specified as a "transitional area" or "smaller urban area" under Clause (2) of Article 243-4 of the Constitution of India, in view of Section 266(B)(i) of the amended Municipalities Act, the panchayat functioning in the local area stands dissolved. In exercise of powers conferred-under Sub-section (d) of Section 266-B of the amended Municipalities Act, the State Government appointed Administrators for all the Municipalities for transitional areas and smaller urban areas to exercise the powers and perform duties and functions of the Municipality for such area until a Municipality is constituted for such area under the Act. Administrators have been appointed with effect from 15-4-1994 till the elected body takes over for such areas vide notifications No. KV-161 of 94-NPL-4593-3504-M to KV-247 of 94145933504M, Notifications with reference to nagar panchayats for which petitions are preferred are also challenged.
When the area is specified as a transitional area or as the case maybe a smaller urban area, the election shall be completed within the time specified in view of Section 281(3) of the amended Municipalities Act. As Panchayats are not existing for the areas known as transitional areas or as the case may be, smaller urban seas and as Nagar Panchayat for Borough Municipalities (for transitional areas) and Municipalities for Borough Municipalities (for smaller urban areas) are incorporated, the then elected members of dissolved Panchayats cannot say that irrespective of notification issued by the competent authority, whereby a transitional area or a smaller urban area as the case may be is constituted, they shall act as elected members. Irrespective of term, election, is to be held in consonance with the provisions contained in the Constitution and for that purpose provision is incorporated by legislative Act by an amendment Panchayat under the Panchayats Act, 1961 ceased to be a Panchayat on 14-4-1994 for the areas being declared as transitional areas or as smaller urban areas, and election must be held as per the existing provision.
20. Learned Counsel Mr. Vakharia for petitioners submitted that:
(i) the notifications whereby the areas are declared as transitional areas or smaller urban areas, are bad inasmuch as it does not take into consideration all the aspects which are mentioned in Sub-clause (2) of Article 243-Q of the Constitution, and, are, therefore, required to be quashed and set aside.
(ii) as per the said provisions, the powers are to be exercised by the Honourable Governor and not by the State Government and as the notifications are issued by the State Government, the notifications are bad, and are required to be quashed and set aside.
(iii) the provisions of natural justice is to be read in Article 243-Q as well as in. Section 5 of the Gujarat Municipalities Act. It is the bounden duty, as submitted by him, of the State to hear the people living in the area before declaring the area either as a transitional area or as a smaller urban area as the case may be. As no hearing is granted to the persons concerned, i.e., citizens residing in the area so declared, the notifications issued by the State Government in this behalf should be quashed and set aside.
(iv) even if the aforesaid contentions are not taken into consideration, in view of the specific provisions made in Articles 243-N and 243-E, the powers could not have been exercised in the manner in which it is exercised. He submitted that in view of proviso to Article 243-N, a Panchayat existing immediately before the amendment, viz., Part IX of the Constitution, the Panchayats must be permitted to continue till their duration as there is no resolution passed by the Legislative Assembly to dissolve the Panchayats.
21. Taking the last submission first, Mr. Vakharia placed reliance on a decision of this Court in the case of Rasikchandra D. Acharya v. State reported in 1995(1) GLR 36. While considering the contention that the provisions of Section 3 of the Gujarat Local Authorities (Temporary Postponement of Election), 1994 are ultra vires to Parts IX and IX-A of the Constitution, the Court, after considering several provisions contained in the Constitution, held that "the provisions contained in the Act are null and void." The Division Bench of this Court, in the aforesaid judgment, has held as under in paragraph 31 of the judgment:
31. Reading Article 243 together with Article 243-ZE it would follow that if there is no existing law or a Municipality in an urban area, then the same has to be constituted. If the Municipality exists then the same shall continue until the duration of its term under the existing law, unless the same is dissolved by a Resolution to that effect passed by the Legislative Assembly and in the meantime the State Legislature would be required to amend the law to bring it in line with the provisions of Part 1X-A of the Constitution and, thereafter, on the expiry of the terms of the existing Municipality, fresh elections will be held and the composition shall be in the manner provided by Part IX-A of the Constitution.
Reading this paragraph, it clearly appears that if there is no existing law or a Municipality in an urban area, then the same has to be constituted. He further submitted that the above referred course is to be adopted even if the Municipality is existing. Relying on this part of the judgment, learned Counsel submitted that the same analogy will apply to the Panchayat which is existing and, therefore, as observed by the Division Bench in the aforesaid judgment, it can be dissolved only by a resolution passed by the Legislative Assembly.
22. Section 5 of the amended Municipalities Act clearly provides that in the transitional area, there shall be a nagar panchayat. Sub-clause (14) of Section 2 of the amended Municipalities Act clearly indicates that if nagar panchayat is constituted under Section 5(1) of the Act, then it would mean a Municipality. According to sub-sec.(13) of Section 2 of the amended Municipalities Act, municipal borough means a transitional area, or as the case may be, a smaller urban area. When by a notification published in exercise of powers under Article 243-Q of the Constitution, area is declared either as a transitional area or a smaller urban area, it cannot be said that what is stated in paragraph 31 of the aforesaid judgment quoted above would apply to the facts of this case. We Would say that the areas have been declared either as transitional areas or smaller urban areas for the first time, and, as Panchayats ate no more existing, this submission has no merit. In these areas, Municipalities as understood in language of Clause (e) of Article 243-P of the Constitution are to be constituted in accordance with the provisions of the amended Municipalities Act which is in consonance with the provisions contained in Part IX-A of the Constitution. Underlined part of para 31 of the judgment referred to hereinabove categorically lays down that if Municipality is not existing it must be constituted. After the amendment in the State Act and after the notifications dated 14-4-1994, Municipalities for the transitional areas and-smaller urban areas have been constituted and hence election according to amended provision is a must.
23. In these cases, what learned Counsel is suggesting is that the legislature should have passed a resolution dissolving the existing Panchayats. Articles 243-E, 243-N, 243-Q and 243-ZF are required to be considered together. In view of the language used in sub-clauses (i) and (2) of Article 243-E, it is submitted that if existing Panchayat is not dissolved under law existing after the date on which Part IX of the Constitution is made applicable, the same must continue to exist till its life or for five years from the date appointed for its first meeting and no longer. Further submission is that +if the law existing on the date on which Part IX of the Constitution is made applicable is amended, such amendment shall not have the effect of causing dissolution of a Panchayat.
24. Articles 243-N and 243-ZF begin with the non-obstante clause "Notwithstanding anything in this Part...'" and these Arts, are as under:
243-N Continuance of existing laws and Panchayats.
Notwithstanding anything in this Part, any provision of any law relating to Panchayats in force in a State immediately before the commencement of the Constitution (Seventy-second Amendment) Act, 1992 which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier:
Provided that all the Panchayats existing immediately before such commencement shall continue till the expiration of their 'duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State.
243-ZF. Continuance of existing laws and Municipalities.
Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, which ever is earlier:
Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State.
25. Parts IX and IX-A of the Constitution of India provide for self-Government at different levels. Both provide participation by Scheduled Castes, Scheduled Tribes, women belonging to such Castes and Tribes, backward class of citizen and women. Office of the Chair Person is also reserved in the manner as the State legislature may provide by law. State Acts are amended in consonance with the provisions contained in Parts IX and IX-A of the Constitution. In view of the provisions contained in Parts IX and IX-A, Gujarat Municipalities Act is amended and Gujarat Panchayats Act, 1993 is enacted by the Legislature, In view of the non obstante clause in Article 243-ZF and 243-N, it is clear that inconsistent law relating to Municipality/Panchayat shall continue to apply until such provisions are amended or repealed or expiration of one year whichever is earlier. Therefore, on the declaration of a transitional area or a smaller urban area, and also in view of the amendment in Gujarat Municipalities Act, Panchayat stood dissolved by an act of the Legislature.
26. By use of non-obstante clause, overriding effect is given to all contrary provisions contained in Parts IX and IX-A as the case may be. In case of Union of India v. G.M. Kokil , in para 10, following observation with regard to the interpretation of non-obstante clause appear:
It is well known that non-obstante clause is a legislature device which is usually employed to give overriding effect to certain provisions over some contrary provision that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.
Thus, law relating to a Municipality is to be amended within the time specified and till then contrary provisions are allowed to continue. Therefore, no grievance can be made for dissolution of Panchayats. If the intention of the Legislature was that the existing Panchayats/Municipalities should be permitted to continue till the expiration of their duration, then there was no need to provide Article 243-N and 243-ZF.
27. It is submitted by learned Advocate General on behalf of the State that 'effect of Article 243-N and 243-ZF is not that the right of the Legislature the enact the provision is taken away and by a Legislative Act the dissolution of the existing Nagar Panchayat is provided, which is not unknown to the Municipalities Act, but it is in consonance with the principles laid down in the Constitution. Learned Advocate General further submitted that when there is an Act of Legislature, there is no need to have a resolution. In our view, an existing body like a Panchayat can be dissolved by an Act of Legislature or by an administrative action under the statute. There are no other modes for dissolution. However, proviso to Articles 243-N & 243-ZF provides that the Panchayat/Municipality which is existing before the commencement of the Act, which may be amended or repealed to make the provisions consistent with the provisions contained in Parts IX and IX-A in the manner prescribed therein, can be dissolved by a resolution that may be passed by the Legislative Assembly as provided in the proviso. By these provisions, existing Panchayats or Municipalities, before amendment in consonance with Parts IX or IX-A can be dissolved only under the provisions as existing. However, before such amendment, Panchayats/Municipalities can be dissolved by a resolution as provided, which otherwise could not be dissolved in view of the provisions existing. In our view, it is an additional mode order the Constitution 'provided for dissolving a Panchayat. In view of the language used in Articles 243-N and 243-ZF, it is clear that the law which is inconsistent is required to be repealed or amended and the effect of the Act may be dissolution of a Panchayat/Municipality and that is not taken away by these Articles.
7th December, 1995.
28. Article 243-Q indicates that self-Government is to be constituted for urban area, larger and smaller, and for an area in transition from rural to urban. A gram or a borough municipality, which was forming a nagar or gram under Panchayats Act, 1961, ceased to be gram or nagar panchayat in view of notification under Article 243-Q, Sub-clause (2). Municipality is to be constituted for such an area, in accordance with the provisions of laws as existing. The mandate is to constitute a Municipality in accordance with law which should be in consonance with the provisions contained in Part IX-A of the Constitution, Section 7 of the amended Municipalities Act also indicates election to these areas after dissolution of the Panchayat.
29. Even if the transitory provisions contained in the amended Municipalities Act is perused, it becomes clear that Clause (3) of Section 281 mandates that if a transitional area or as the case may be a smaller urban area is constituted, then election must be held in accordance with the amended Municipalities Act. It is in view of this Legislative Act, which is in consonance with Article 243-ZF that election is to be held. Therefore, it cannot be said that in the absence of a resolution passed by the Assembly dissolving the Panchayat as provided in the proviso, election cannot be held and Panchayat must be permitted to continue to function.
In view of what is stated hereinabove, we do not find any substance in the last question raised by the learned Counsel for the petitioners.
30. Learned Counsel for the petitioner submitted that as per Sub-clause (2) Article 243-0, having regard to the population of the area, density of the population therein, the revenue generated for local administration, the percentage of employment for non-agricultural activities, economic importance or such other factors as may be deemed fit, are required to be taken into consideration and are required to be specified by a public notification. It is submitted that if the notification is perused, it becomes clear that while forming a transitional area, all the aspects have not been taken into consideration but only - (1) Population of the area, (2) Density of the population therein and (3) Economic importance of the area are taken into consideration. Revenue generated for the local administration and the percentage of employment in non-agricultural activities and the economic importance are not taken into consideration. Therefore, according to the learned Counsel, there is non-application of mind and the notification must be quashed.
31. "Economic importance of the area" is a different connotation used in the notification. Considering three aspects together, viz., revenue generated for the local administration, percentage of employment in non-agricultural activities and the economic importance, it seems that the phrase "economic importance of the area" is used in the notification. Again, these are some of the factors that are required to be taken into consideration and even if one factor is not considered, the notification would not become bad. It was suggested that if there is less percentage of employment in non-agricultural activities and most of the people residing in the area are agriculturists or depending on agricultural activities, then the area should not be declared as a transitional area or a smaller urban area.
32. Gujarat Panchayats Act, 1961 was in force when Municipalities Act came to be amended in 1993. The State Government could have declared any local area comprising of a revenue village or a group of revenue villages or hamlets forming part of a revenue village, or such other administrative unit or part thereof, if the population of such local area exceeds 10,000 but does not exceed 25,000, as a nagar and if the population of such local area does not exceed 10,000, as a gram. Therefore, when the Municipalities Act came to be amended, that area which has a population exceeding 10,000 is declared as transitional area or smaller urban area looking to the population of the area, the density of the population therein and the economic importance of the area. On behalf of the State, by filing an affidavit, it has been submitted that keeping in mind the aspects referred to in the notification and considering the criteria laid down in the Constitution of India for specifying the local area, gram or nagar as the case may be, notifications in question have been issued. To this, there is no reply filed by the other side. In view of this specific averments, it cannot be said that the criteria referred to in Sub-section (2) of Article 243-0 has not been taken into consideration. Therefore, we do not find any merits in this submission.
33. By an Act Legislature, Honourable the Governor is empowered to exercise the discretion to specify the areas as a "transitional area" or a "smaller urban area" For forming such area, some grounds are indicated and one or ail may lead to form an opinion for exercising the discretion. If the intention of the Legislature was that all the grounds must be considered, then the use of words "may" and "or" would not have been there. The use of words "or such other factors as he may deem fit" clearly indicate that the list is not exhaustive for forming an opinion. Opinion may be formed on one ground or more than one. It does not indicate that opinion must be formed after considering all the grounds mentioned therein. Absence of word "and" before the last ground or clause to be considered and presence of word "or" and use of word "may" is suggesting the use of discretion of the authority and is indicating that while forming opinion for specifying area, one or more than one factor as referred or such other factors may be taken into consideration. In view of these reasons, we do not find any substance in the contention.
34. With regard to the question raised by the learned Counsel that the powers are not exercised by the Honourable Governor but are exercised by the Government, the notifications are bad. It is fairly stated at the Bar that in view of a decision rendered by the Apex Court in the case of State of U.P. v. Pradhan Sangh Kshetra Samiti , it cannot be said that the notifications are bad. In that case, the question was, whether the village is constituted or specified in accordance with the provisions contained in the Constitution or not?
35. The function under Article 243(g) is to be exercised by the Governor on the aid and advice of his Council of Ministers. Considering the provisions contained in Article 163(3) of the Constitution and Section 3(b)(c) of the General Clauses Act, 1873, the Apex Court did not agree with the finding of the High Court and held as under (at P, 1525): "We have already pointed that in view of the provisions of Article 154 and of Article 163 read with Article 166 of the Constitution, "Governor" means the Government of the State and all executive functions which are exercised by the Governor except where he is required under the Constitution to exercise the functions in his discretion, are exercised by him on the aid and advice of the Council of Ministers. Hence, whether it is a notification issued by the Government or a general or special order issued by the State Government, constitutionally, both are the acts of the Governor" In view of the above, the contention raised by the learned Counsel for the petitioners cannot be accepted.
36. Learned Counsel submitted that in any case, without hearing the citizens residing in the area, the decision is taken to convert the gram/nagar into a transitional area or a smaller urban area. It was pointed out that in Section 4-A as it stood earlier in the Municipalities Act, 1963, there was a provision for consulting the nagar panchayat before converting into a municipal borough. It was further submitted that in view of a reported decision of the Apex Court in the case of Baldevsing and Ors. v. State of Himachal Pradesh reported in 1987 SC 1239, as reconstitution of an area involves Civil consequences, opportunity of hearing to the residents of the locality must be afforded. It was submitted that though there was no clear provision in Section 256 of the Himachal Pradesh Municipal Act, 1968, the Apex Court held (in paragraph 4) that:
Citizens 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 circumstances, it is necessary that people who will be affected by the change should be given an opportunity of being heard, otherwise they would be visited with serious consequences like loss of office in Gram Panchayat, an imposition of way of life, higher incidences of tax and the like.
In the case of State of U.P. v. Pradhan Sangh Kshetra Samiti, (supra) the Apex Court, considered the question with regard to affording a reasonable opportunity to residents of an area since the change in the area and local bodies results into civil consequences (See Para 13, P. 1530). Several judgments were considered. In the, facts of that case, there was no dispute of bringing more villages under one gram panchayat when they were earlier under separate gram panchayats, involving civil consequences. In the instant cases, learned Counsel for the petitioners was not in a position to point out a single instance whereby two or more than two villages were clubbed or parts of villages were clubbed together and one transitional area or one smaller urban area was constituted. In the case of Baldevsing (supra), Panchayats were constituted far different villages under the relevant statutes and attempt was made to constitute a notified area as provided under Section 256 of the Himachal Pradesh Municipal Act, 1968 by including portions of four villages for such purpose. Thus, it is clear that in that case also, forming part of different villages were to be clubbed into one notified area. In the instant case, nothing has been pointed out indicating the division of area or clubbing more than the gram/nagar into one for notifying as a transitional area or a smaller urban area.
37. Learned Advocate General submitted that specification of a transitional area or a smaller urban area, is under Article 243-a. It was submitted that by an Act of the legislature, Municipality is constituted for the area known as a transitional area or a smaller urban area as the case may be. There is no question of observing the principles of natural. Justice or opposition on the ground of violation of that principles when there is an Act by the legislature. As a matter of fact, Article 243-Q of the Constitution in Part IX-A mandates that Nagar Panchayat shall be constituted in every State by whatever name called for a transitional area, i.e. to say an area in transition of rural area to an urban area. This article further mandates that a Municipal Council shall be constituted for a smaller urban area, and a Municipal Corporation for a larger urban area in accordance with the provisions of part IX-A of the Constitution. The manner of constitution of Municipalities, constitution and composition of wards committees etc. and reservation of seats etc. are also provided in this Part. The Apex Court's judgment in the case of Baldevsing (supra) clearly indicates that opportunity of hearing was required to be given before clubbing part of different villages in one notified area, but in the cases on hand, there is no question of clubbing parts of different villages in one transitional area or one smaller urban area.
38. Apart from that, learned Advocate General pointed out that the Election Commission has already issued notification on 27-11-1995, declaring its intention to hold elections in accordance with the provisions contained in the relevant rules. Copy of a notification is placed on record and the same is ordered to be taken on record. The Court, however, make it clear that these petitions are not decided on this ground.
39. In the result, the Court conclude that the impugned notifications cannot be quashed and set aside on the grounds urged in the petition and it is not possible to accept the view canvassed by the learned Counsel for the petitioners that Section 266-B of the amended Municipalities Act is ultra vires the Constitution. Hence, all these petitions are dismissed. Status quo granted earlier stands vacated. Rule discharged in all the petitions.
40. Learned Advocate Mr. Thakkar has adopted the submissions made by learned Counsel Mr. Vakharia.
41. Learned Advocate Mr.Mehta, colleague of learned Counsel Mr. Vakharia submitted that as the question regarding interpretation of the provisions contained in the Constitution is involved, this Court may issue a certificate under Article 134-A of the Constitution and status quo granted earlier may be continued for a period of eight weeks. On behalf of learned Advocate Mr. Thakkar, a similar request is made.
42. Mr. Mehta, learned Advocate submitted that these petitions were filed in the year 1994 (i.e. 19-4-1994). The petitions came to be amended on or about 14-2-1995 challenging the vires of Section 266-B of the amended Municipalities Act. He further submitted that these are not the matters which are filed at a belated stage or that the petitioners have slept over their rights but they have knocked the door of the Court without delay, According to him, because of non-appearance of the Government Pleaders on several occasions, the matters could not be taken. There may be several reasons, It appears that the learned Advocate General was served only few days before the matters were taken up for final hearing. It is the practice of this Court that when section of a statute is challenged, notice is issued to the Advocate General as provided in the Civil Procedure Code. (Vide Order 27-A Rule
43. Learned Advocate General pointed out that these matters pertain to a local act and challenge is to Section 266-B of the Gujarat Municipalities Act as amended by Act No. 17 of 1993. He further pointed out that the election machinery is already set in motion and elections are to be held for all the areas on 31-12-1995, It is required to be noted that since 15-4-1994, Administrators are appointed for the area declared as a transitional area or a smaller urban area to exercise powers and perform duties and function of Municipality or Nagar Panchayat for the areas.
44. The Court is of the opinion that elections are required to be held, and it would be in the interest of the public at large to hold elections so that the administration is in the hands of elected representatives of the people instead of Administrators appointed by the Government. The Court do not find any cogent reason to stay this order and hence we reject this request. The Court also reject the request for issuance of certificate under Article 134-A of the Constitution of India.