Punjab-Haryana High Court
Tej Pal Basra And Others vs State Of Punjab And Others on 1 October, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) LPA No. 741 of 2012 ( O&M )
Tej Pal Basra and others
.... APPELLANTS
Versus
State of Punjab and others
..... RESPONDENTS
(2) LPA No. 907 of 2012 ( O&M )
Ajay Kumar and others
.... APPELLANTS
Versus
State of Punjab and others
.... RESPONDENTS
DATE OF DECISION : 01.10.2013
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Dr. Anmol Rattan Sidhu, Senior Advocate, with
Ms. Mandeep Kaur, Advocate,
for the appellants
(in LPA No. 741 of 2012).
Mr. Kanwaljit Singh, Senior Advocate, with
Mr. Ajaivir Singh, Advocate,
for the appellants
(in LPA No. 907 of 2012).
Mr. Ashwani Talwar, Addl. A.G., Punjab, and
Mr. Sunil Kumar Vashishth, Asst. A.G., Punjab.
Mr. J.S. Toor, Advocate,
for applicant - Municipal Council, Pathankot
(in CM No. 430-LPA of 2013 in LPA No. 907 of 2012).
***
Dass Narotam
2013.10.11 13:18
I attest to the accuracy and
integrity of this document
LPA Nos. 741 & 907 of 2012 -2-
SATISH KUMAR MITTAL, J.
1. This order shall dispose of Letters Patent Appeals No. 741; and 907 of 2012, pertaining to Municipal Councils, Phagwara; and Pathankot, respectively. Both these appeals have been filed by the appellants against the common order dated 8.5.2012 passed by the learned Single Judge, whereby three writ petitions (CWP Nos. 14023, 14024 and 21850 of 2011, pertaining to Municipal Councils Pathankot, Phagwara and SAS Nagar, Mohali, respectively), challenging three separate notifications issued by the State of Punjab under sub-section (1) of Section 3 of the Punjab Municipal Corporation Act, 1976 (hereinafter referred to as `the Act') specifying the areas comprising the aforesaid three Municipal Councils to be larger urban areas; and the subsequent notifications issued by the State of Punjab under sub-section (2) of Section 3 read with sub-section (1) of Section 4 of the Act, constituting Municipal Corporations of Pathankot, Phagwara and SAS Nagar, Mohali, respectively, have been dismissed. So far as the dismissal of the CWP No. 21850 of 2011 pertaining to Municipal Council, SAS Nagar, Mohali, is concerned, no Letters Patent Appeal has been filed.
2. The aforesaid notifications were challenged, primarily on the following grounds :
(a) That the Government has specified the areas of three Municipal Councils to be larger urban areas, vide the impugned notification issued under Section 3 (1) of the Act, without following the criteria of population and income derived from Dass Narotam 2013.10.11 13:18 I attest to the accuracy and integrity of this document LPA Nos. 741 & 907 of 2012 -3- the area declared as "larger urban area", as prescribed in the Government Notification/guidelines dated 16.7.1999 (Annexure P-3);
(b) That the areas of three Municipal Councils have been specified to be larger urban areas, without including any other area in the said areas;
(c) That before issuing the impugned notifications, neither the Municipal Councils were consulted nor any hearing was provided to them, particularly when vide the impugned notifications duration of those Municipal Councils has been shortened, and prejudice has been caused to the elected members of the Municipal Council;
(d) That the notifications constituting Municipal Corporations, resulting into shortening of the tenure of five years of the Municipal Councils, has violated the provision of Article 243U of the Constitution of India;
(e) That the impugned notifications have been issued due to political considerations and under the pressure as well as influence of the local MLAs.
3. After hearing learned counsel for the parties, by passing a detailed order on 8.5.2012, the learned Single Judge has rejected all the contentions raised by the appellants, and has upheld the validity of the aforesaid notifications.
4. We have heard learned counsel for the parties and have gone through the impugned order.
5. While referring to the definitions of "larger urban area" and "urban areas", as defined in sub-sections (22-a) and (60) of Section 2 of the Dass Narotam 2013.10.11 13:18 I attest to the accuracy and integrity of this document LPA Nos. 741 & 907 of 2012 -4- Act, respectively, and sub-section (1) of Section 3 of the Act, learned counsel for the appellants submitted that under sub-section (1) of Section 3 of the Act, an area of a Municipal Council can be declared as "larger urban area" for the purpose of the Act, only by adding some more area in the area of Municipal Council. But in the present cases, in case of both the Municipal Councils, the Government has declared the same area as "larger urban area", without adding any further area in the same. According to the learned counsel, vide Notification dated 16.7.1999, the Government has specifically laid down the guidelines which provide that for creating a Municipal Corporation, population of 3 lacs is required, whereas the total population of the areas of Municipal Council, Phagwara and Pathankot, is 98000 and 156000, respectively. Therefore, without adding more area to the areas of these Municipal Councils, the said areas could not have been declared as "larger urban area". It has also been argued that while issuing the impugned notifications, the income criteria fixed by the aforesaid Notification dated 16.7.1999 has also not been followed.
6. After considering the submissions made by learned counsel for the parties, we do not find any force in the aforesaid submissions made by learned counsel for the appellants.
7. Sub-section (51) of Section 2 of the Act defines "rural areas" as under :
"means the areas of the City which immediately before their Dass Narotam 2013.10.11 13:18 I attest to the accuracy and integrity of this document LPA Nos. 741 & 907 of 2012 -5- inclusion within the limits of the City are situated within the local limits of a Gram Panchayat established under the Punjab Gram Panchayats Act, 1952, but shall not include such portion thereof as may, by virtue of a notification under section 421, cease to be included in the rural areas as herein defined."
Sub-section (60) of Section 2 of the Act defines "urban areas" as under :
"means the areas of the City which are not rural areas."
Sub-section (22-a) of Section 2 of the Act defines "larger urban area" as under :
"means such area as the Government 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 a notification in the Official Gazette."
Sub-section (1) of Section 3 of the Act reads as under :
"The Government 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 it may deem fit, specify, by notification, in the Official Gazette, any area to be a larger urban area for the purpose of this Act:
Provided that no military cantonment or any part thereof shall be included in such larger urban area :
Provided further that a Corporation may not be constituted for such a larger urban area or part thereof as the Government may, having regard to the size of the area and Municipal Services being provided or proposed to be provided by an industrial establishment in that area and such other factors as it may deem fit, by notification, Dass Narotam 2013.10.11 13:18 I attest to the accuracy and integrity of this document LPA Nos. 741 & 907 of 2012 -6- specify to be an industrial township."
In our opinion, according to sub-section (1) of Section 3 of the Act, any area, whether it is an urban area or a rural area, can be declared as "larger urban area" for the purpose of the Act, while taking into consideration the aforesaid factors. However, there is a limitation that no military cantonment or any part thereof shall be included in such "larger urban area". Even an urban area, which consists of Municipal Committee or Municipal Council, can be declared as "larger urban area" for the purpose of the Act. Under sub- section (1) of Section 3 of the Act, there is no requirement that only an area consisting of a particular population can be declared as larger urban area. It is for the Government to declare any particular area as larger urban area, while having regard to the factors mentioned in this sub-section. In the Act, pertaining to the State of Punjab, the legislation has intentionally not given the requirement of a particular extent of population, as given in the Haryana Municipal Corporation Act, 1994, where it has been provided that to constitute a Municipal Corporation, it is mandatory that population of the area is three lacs or more. But in the Act pertaining to the State of Punjab, there is no such requirement, except that while declaring an area to be larger urban area, the Government may have regard to the population of the area and density of the population therein.
8. During the course of hearing, learned counsel for the appellants emphasises that the said requirement of population of the area to be three Dass Narotam 2013.10.11 13:18 I attest to the accuracy and integrity of this document LPA Nos. 741 & 907 of 2012 -7- lacs or more has been provided by the Notification/guidelines dated 16.7.1999. Therefore, the impugned notifications issued by the State of Punjab are illegal, as those guidelines, which are binding on the State Government, have not been complied with, while issuing the impugned notifications. This contention raised by learned counsel for the appellants has been rejected by the learned Single Judge, while holding that these guidelines, being advisory in character and not of a statute, cannot control the legislative function of the State. We do not find any illegality in the order of the learned Single Judge in this regard. In Narendra Kumar Maheshwari v. Union of India and others, AIR 1989 SC 2138, it was held as under :-
"100.........This is because guidelines, by their very nature, do not fall into the category of legislation, direct, subordinate or ancillary. They have only an advisory role to play and non-adherence to or deviation from them is necessarily and implicitly permissible if the circumstances of any particular fact or law situation warrants the same. Judicial control takes over only where the deviation either involves arbitrariness or discrimination or is so fundamental as to undermine a basic public purpose which the guidelines and the statute under which they are issued are intended to achieve."
Similarly, in J.R. Raghupathy and others v. State of A.P. and others, (1988) 4 SCC 364, when similar issue came for consideration, the Hon'ble Supreme Court held as under :
"5.......... The decision proceeded on the principle that where guidelines are issued regulating the manner in which a discretionary Dass Narotam 2013.10.11 13:18 I attest to the accuracy and integrity of this document LPA Nos. 741 & 907 of 2012 -8- power is to be exercised, the Government is equally bound by the guidelines. If the guidelines were violated, it was for the Government to offer explanation as to why the guidelines were deviated from. We are afraid, there is no such inflexible rule of universal application. The learned Judges failed to appreciate that the guidelines issued by the State Government had no statutory force and they were merely in the nature of executive instructions for the guidance of the Collectors. On the basis of such guidelines the Collectors were asked to forward proposals for formation of Revenue Mandals and for location of Mandal Headquarters. The proposals so forwarded by the Collectors were processed in the Secretariate in the light of the suggestions and objections received in response to the preliminary notification issued under Section 3 (5) of the Act and then placed before a Cabinet Sub Committee. The ultimate decision as to the place of location of Mandal Headquarters was for the Government to take. It cannot be said that in any of the cases the action of the Government for location of such Mandal Headquarters was mala fide or in bad faith or that it proceeded on extraneous considerations. Nor can it be said that the impugned action would result in arbitrariness or absence of fair play or discrimination."
In that case, the judgment of the High Court was set aside, where it had interfered with the location of Mandal Headquarters, and quashed the impugned notifications on the ground that the Government acted in breach of the guidelines in that one place or the other was more centrally located or that location at the other place would promote general public convenience, or that the headquarters should be fixed at a particular place with a view to develop the area surrounded by it. It was held that the High Court would not have issued a writ in the nature of mandamus to enforce the guidelines Dass Narotam 2013.10.11 13:18 I attest to the accuracy and integrity of this document LPA Nos. 741 & 907 of 2012 -9- which were nothing more than administrative instructions not having any statutory force, which did not give rise to any legal right in favour of the writ petitioners.
9. During the course of hearing, learned counsel for the appellants relied upon decision of this Court in V.K. Kapoor and others v. State of Haryana and others, 2011 (1) RCR (Civil) 15, wherein the declaration of Panchkula Municipal Council as a Municipal Corporation by the State of Haryana was set aside on the ground that the Government had not taken into consideration the determining factor with regard to population of the area being three lacs or more. The said case is not applicable to the instant case, because in the Haryana Municipal Corporation Act, 1994, which was applicable in the said case, there is specific requirement that to declare an area as Municipal Corporation, population of the area must be three lacs or more.
10. Further, in our opinion, action of the State Government to specify an area to be a larger urban area for the purpose of the Act, in exercise of its power under sub-section (1) of Section 3 of the Act; and constituting a Corporation, in exercise of its power sub-section (2) of Section 3 read with sub-section (1) of Section 4 of the Act, is legislative function, which can be challenged only on the ground of it being unconstitutional or ultra vires. No such plea was taken in the writ petitions filed by the appellants. The impugned notifications cannot be challenged, Dass Narotam 2013.10.11 13:18 I attest to the accuracy and integrity of this document LPA Nos. 741 & 907 of 2012 -10- merely being arbitrary, without application of mind and for malafide reasons. In Sundarjas Kanya Lal Bhatija v. Collector, Thane, Maharashtra, 1989 (3)SCC 396, it was held by the Hon'ble Supreme Court that the function of the Government in establishing a Corporation under the Act is neither executive nor administrative, but the said function is legislative in nature. For such a function, no judicial duty is laid on the government in discharge of the statutory duties. The only question to be examined is whether the statutory provisions have been complied with or not. If they are complied with, then the Court would not interfere in the exercise of the said legislative function. The Courts will not sit over such decision. It has also been argued that the Government in exercise of its powers under such proceedings is not subject to the rules of natural justice. The rules of natural justice are not applicable to legislative action plenary or subordinate. Therefore, the Government is not required to hear the parties before issuing notification under Section 3 of the Act. Similarly, in Bhupinder Singh and others v. Union of India and others, 1997(3) PLR 334, it was held that establishment of a Corporation under the Act is legislative process indeed and thus is not subject to the principle of natural justice. The Court can only examine whether the statutory provisions have been complied with and would not say any more. In State of Punjab v. Tehal Singh and others, AIR 2002 SC 533, it was held that the requirement of opportunity of hearing before excluding an area from one Gram Sabha Dass Narotam 2013.10.11 13:18 I attest to the accuracy and integrity of this document LPA Nos. 741 & 907 of 2012 -11- and including it in different Gram Sabha or a local authority depends upon the legislative wisdom and the provisions of an enactment. Thus, in our opinion, the learned Single Judge has rightly dismissed the writ petitions challenging the notifications issued by the State Government, which was a legislative function of the State Government.
11. An argument has also been raised by learned counsel for the appellants that while constituting Municipal Corporation in place of Municipal Council, tenure of the Municipal Council, which was five years, has been reduced, therefore, it violates the provision of Article 243U of the Constitution of India. This argument has also been rejected by the learned Single Judge, while relying upon decision of the Hon'ble Supreme Court in State of Maharashtra and others v. Jalgaon Municipal Council and others, (2003) 9 SCC 731. We also do not find any substance in this argument. Article 243U of the Constitution deals with duration of Municipalities. It provides that 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. It means that unless the Municipality is dissolved under any law for the time being in force, it shall continue for five years from the date appointed for its first meeting. But in case, a Municipality is dissolved by operation of law, then its term can be shortened. This issue was considered by the Hon'ble Supreme Court Dass Narotam 2013.10.11 13:18 I attest to the accuracy and integrity of this document LPA Nos. 741 & 907 of 2012 -12- in Jalgaon Municipal Council's case (supra), wherein it has been held as under :
"21. Having heard the learned counsel for the parties at length on this aspect, we are of the opinion that the hiatus is an unavoidable event which must take place in the process of conversion of a Municipal Council into a Municipal Corporation. Reliance on Article 243-U by the learned counsel for the respondents in this context is misconceived. The use of the expression "a Municipality' in sub- article (3) of Article 243-U in the context and in the setting in which it is employes suggests and means the duration of the same type of Municipality coming to an end and the same type of successor Municipality taking over as a consequence of the terms of the previous Municipality coming to an end. Article 243-U cannot be applied to a case where the area of one description is converted into an area of another description and one description of a Municipality is ceased by constituting another Municipality of a better description. Article 243-U(3) cannot be pressed into service to base a submission on that an election to constitute a Municipal Corporation is required to be completed before the expiry of duration of a Municipal Council.
22. The constitution of Municipal Corporation would require notification of larger urban area and Municipal Corporation to govern it. The area shall have to be divided into wards with the number of corporators specified and reservations made. The Corporation would need to nominate Councillors. The territorial limits may need to be altered. The State Election Commission cannot conduct election without specifying numbers and boundaries of wards. New rules, bye-laws etc. shall need to be framed and municipal tax structure may need to be recast. The statutory provisions do not contemplate a situation where the same area may be called smaller and large area simultaneously and process of Dass Narotam 2013.10.11 13:18 I attest to the accuracy and integrity of this document LPA Nos. 741 & 907 of 2012 -13- constitution of a Municipal Corporation being commenced and completed though the Municipal Council continues to exist. Such an action would result in anomaly and confusion if not chaos."
In view of the aforesaid authoritative pronouncement, it cannot be said that by the impugned notifications, tenure of the Municipal Council has been illegally curtailed.
12. An argument has also been raised by learned counsel for the appellants that as per proviso to Article 243U (1) of the Constitution, a Municipality is to be given a reasonable opportunity of hearing before its dissolution, but in the present case, since no such opportunity of hearing was given, action of the State Government is illegal and violative of the provision of the Constitution. In our opinion, this contention is also not tenable. The aforesaid proviso is applicable, when a Municipality is dissolved in ordinary way, but if a Municipality has been dissolved by operation of law, which is a legislative function, then no such opportunity of hearing is required. In sub-section (1) of Section 3 of the Act, there is no provision to provide opportunity of hearing to the residents of the locality or the Municipality, before such area is included within the larger urban area. Similarly, in sub-section (2), there is no provision for providing an opportunity of hearing to the Municipal Council before constituting a larger urban area to be a Corporation. Thus, the contention raised by learned counsel for the appellants, on the basis of the aforesaid proviso to Article 243U (1) of the Constitution, is without any substance. Dass Narotam 2013.10.11 13:18 I attest to the accuracy and integrity of this document LPA Nos. 741 & 907 of 2012 -14-
13. No other argument was raised or advanced by learned counsel for the appellants.
14. In view of the above, there is no merit in these appeals and the same are, hereby, dismissed.
( SATISH KUMAR MITTAL )
JUDGE
October 01, 2013 ( MAHAVIR S. CHAUHAN )
ndj JUDGE
Dass Narotam
2013.10.11 13:18
I attest to the accuracy and
integrity of this document