Punjab-Haryana High Court
Suresh Kumar And Others vs State Of Haryana And Others on 24 August, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: AUGUST 24, 2012
Suresh Kumar and others
.....Petitioners
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Arun Jain, Sr.Advocate with
Mr. Amit Jain, Advocate,
for the petitioners.
Mr. Hawa Singh Hooda, A.G., Haryana with
Mr. Randhir Singh, Addl.A.G., Haryana,
for the State.
Mr. Sanjeev Gupta, Advocate,
for respondent No.4.
*****
RANJIT SINGH, J.
Area constituting a Gram Sabha Bhuna, Tehsil and District Fatehabad has been constituted as Municipal Committee by the Government through a Notification issued on 1.4.2011 in exercise of powers conferred by sub-sections (1) and (6) of Section 3 of Haryana Municipal Act, 1973 (for short "Haryana Act"). Aggrieved against this action, Sarpanch and all Panches of Village Panchayat, Bhuna have filed this writ petition to impugn this Notification. CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 2 }:
What can be a grievance for converting a Village Panchayat to a Municipal Committee really cannot be comprehended. Minute analysis of the issue raised would indicate one and only one cause with the petitioners to impugn this Notification and that is that the term of the Panchayat would stand curtailed because of the impugned Notification. The petitioners, however, have made an attempt to give it a different colour by pleading that the move is politically motivated and was in violation of the procedure prescribed for constituting a Municipal Committee. They have, thus, been able to maintain their challenge against this purely administrative decision, which apparently would not appear justiciable.
Let us notice the facts as pleaded in the petition. Gram Panchayat Bhuna was constituted pursuant to the general election held on 12.6.2010 under Haryana Panchayati Raj Act, 1994 (for short "1994 Act"). As per the provisions of the Act, the Panchayat was to have a term of five years from the date appointed for its first meeting. Bhuna apparently is a big village as can be seen from the number of elected Panches, which are 21 in number. It is alleged that Prahlad Singh Gillankhera (respondent No.4) is instrumental in first initiating the process of converting this Panchayat to Municipal Committee and has got the first notification issued on 13.1.2011 proposing to declare the area of Gram Panchayat Bhuna as a municipal area for the purpose of constituting Municipal Committee village Bhuna. The petitioners, being elected Panches and representatives of the village, learnt about this notification and called a meeting of the Gram CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 3 }:
Panchayat. The petitioners constituting all the Panchayat members passed a unanimous resolution that they would not accept the proposal of the State Government to declare the Gram Panchayat as a municipal area. On the strength of this unanimous resolution, Gram Panchayat had taken a decision to oppose the move and to file objections. With this aim, yet another resolution was passed on 21.2.2011 pointing out that residents of village Bhuna are poor persons and constituting Municipal Committee in place of Village Panchayat would neither be in their interest nor is it viable. The petitioners have attributed motives on the part of respondent No.4, the local MLA and it is stated that this move is actuated due to political considerations. It is urged that otherwise constituting a Municipal Committee is not in any manner is in the interest of villagers. Some individuals affidavits, as many as 23 in number, have also been attached with the petition in support of the plea that the residents are opposed to the move. The petitioners have also filed objections against the move to convert village Panchayat into Municipal Committee.
It is alleged that Sub Divisional Officer (Civil), Fatehabad, without affording any hearing to the petitioners or any other resident of the village, submitted his report to the Deputy Commissioner, Fatehabad recommending that it would be in the interest of residents of Bhuna if the Municipal Committee is constituted in place of village Panchayat. Deputy Commissioner, Fatehabad submitted his recommendation to Director, Urban Local Bodies on 1.3.2011. He termed the objections raised by the petitioners to be motivated by CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 4 }:
personal gains and accordingly agreed with the recommendation of Sub-Divisional Officer. On the basis of this report as submitted by the Deputy Commissioner, the Government has gone ahead with issuing notification on 1.4.2011 declaring the village area as a municipal area.
The petitioner is maintaining that earlier village Bhuna was part of Tehsil Tohana, but after de-limitation of the constituencies, the village has come to fall in Tehsil Fatehabad. The local MLA (respondent No.4) being from ruling party in the State has got declared Sabha area of village Bhuna as a municipal area due to political rivalry as the elected members of the Gram Sabha owe allegiance to Indian National Lok Dal, which is the main opposition party in the State. In support, reference is made to some newspaper reports. The petitioners have also averred that Chief Minister, Haryana had announced in December, 2010 itself that Bhuna would be made a Municipal Town as per the request of the local MLA (respondent No.4) while attending Nav Vikas Rally held on 5.12.2010. On this basis, it is stated that the exercise of inviting objections and dealing with those objections was a sheer formality to complete the pre-decided move. The petitioners accordingly would term this exercise to be mechanical one, besides being politically motivated.
The petitioners, however, still could not hold back their real grievance and this apparently is that they were elected as Sarpanch or Panches of the Gram Panchayat on 12.6.2010 and were to continue to hold their posts upto 2015. The impugned notification CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 5 }:
would cut short their tenure and so it is termed as illegal, arbitrary and politically motivated. It is also urged that move is ultra vires of the provisions of 1994 Act as being aimed at dislodging the democratically elected representatives of the village due to political consideration as they are from the main opposition party in the State.
After reconsideration, some additional colour is added to this real grievance, which apparently is the moving force for the petitioners to challenge this action. As an afterthought, it is also urged that after conversion of the village Gram Panchayat into municipal area, the residents would be burdened with some unnecessary taxes and some cesses as well and this fact has clearly not been kept in view while issuing the impugned notification. The petitioners have accordingly filed this petition to impugn this notification.
Initially, a written statement was filed by Deputy Commissioner on behalf of respondent Nos.1 to 3. Reference is made to resolution passed by Gram Panchayat on 20.9.2008 requesting that the Gram Panchayat Bhuna may be constituted as Municipal Committee, Bhuna. This resolution was also statedly passed unanimously by the then Gram Panchayat. On the basis of this resolution, a memo dated 1.12.2008 was received from Director, Urban Local Bodies, Haryana to ascertain whether Bhuna village was fit for being converted to municipal area. A report accordingly was obtained from District Town Planner, Fatehabad and Sub Divisional Officer (C), Fatehabad. The Government thereafter constituted a committee under the Chairmanship of the Deputy Commissioner with CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 6 }:
Addl.Deputy Commissioner, District Town Planner and representative of the Director, Urban Local Bodies, Haryana as members for examining the issue as per the criteria laid down. On 3.12.2010, the committee had made recommendation for establishing a Municipal Committee at Bhuna. On the basis of this recommendation, the Government issued gazette notification dated 13.1.2011 inviting objections and claims, if any, through Deputy Commissioner, Fatehabad. The claims/objections, as filed by the various persons, were forwarded to the Government through memos dated 22.2.2011 and 24.2.2011. Thereafter, Director, Urban Local Bodies, Haryana had requested the office of Deputy Commissioner through letter dated 21.2.2011 for comments on the objections. The comments were accordingly sent to the Director on 1.3.2011. During the intervening period, Panchayat elections to the various Gram Panchayats in the State of Haryana were declared in the month of May, 2010 and election in village Bhuna was conducted on 12.6.2010. The process of establishing Municipal Committee, which was in progress, was completed and notification accordingly was issued on 1.4.2011. It is accordingly stated that the impugned notifications were issued after following the complete process as per the provisions and the present writ petition is liable to be dismissed.
The Deputy Commissioner has seriously contested the allegations made by the petitioners that the decision was motivated due to political considerations. It is pointed out that process to declare village Bhuna as a municipal area had commenced much prior to the elections of the present Gram Panchayat and, thus, the CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 7 }:
allegation that it is actuated with any political motive is rather farfetched. The allegation of malafides attributed to respondent No.4 are also rebutted by him in a separate but short reply filed by him. Respondent No.4 would term these allegations to be baseless and rather being tainted with malafides. It is pointed out that respondent No.4 became an MLA for the first time in October, 2009 and cannot have any connection with the resolution passed by the Panchayat, which was in the year 2008. As per respondent No.4, the perusal of the objections filed by the petitioners to the proposal would clearly reflect that it is only because of their personal benefit that they have challenged this action. This motive is well reflected in their objection that their term is likely to cut short by this action, which as per respondent No.4 otherwise is taken by the Government in the interest of the village population.
It is noticed that on 8.6.2011 Naib Tehsildar, Bhuna was appointed as Administrator of Municipal Committee, Bhuna and pursuant thereto, petitioner No.1 was directed to hand over the charge to the Administrative through a communication dated 27.6.2011. The petitioners moved a misc.application No.8593 of 2011 for staying the operation of these two orders. Notice of this application was issued and operation of these orders (Annexures P- 31 and P-32) was stayed on 8.7. 2011.
The State also filed an application for vacation of interim order passed on 8.7.2011 and notice of this application was issued to the petitioners. The case was thereafter adjourned for filing replies to the applications filed during the pendency of the writ petition. On CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 8 }:
1.3.2012, the Advocate General appeared on behalf of the State and produced the record for perusal before the court. Record being voluminous, the parties were given liberty to inspect the same. The Addl.Advocate General appearing in this case was also directed to place on record the true translated copies of certain fundamental documents, which may require to be examined to test the validity of the challenge posed to the impugned notification. The said directions were complied with and additional affidavit was filed on behalf of respondent No.2 on 15.3.2012. With this additional affidavit, a communication dated 10.12.2008 initiated by the Deputy Commissioner, Fatehabad for constituting Municipal Committee, Bhuna in terms of the resolution passed by the village Panchayat is also placed on record and so also the copy of the resolution passed by the Gram Panchayat. The proceedings of the meeting held on some different dates have also been annexed with this additional affidavit.
In the additional affidavit, detailed justifications has been given in support of the decision of the Government to convert Gram Panchayat to Municipal Committee. Various factors, which were examined while arriving at this decision, are disclosed in the additional affidavit. It is stated that as per census report 2001, population of village Bhuna was 24919. The census completed in the year 2011 obviously would lead to substantial increase in the population. As per the estimation, the present population of the village was not less than 32000. This estimation was based on the minimum growth noticed which was 16.79%. It is stated that there CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 9 }:
are 850 commercial shops in the village and one grain market having 151 shops. It is pointed out that there are 5 banks in the village, one of which is a Cooperative Bank. Remaining banks are the branches of major nationalized Banks, like, Punjab National Bank, State Bank of India, State Bank of Patiala and a Gramin Bank. There is a Community Health Centre in the village, a Police Station and a Kisan Rest House as also Veterinary Hospital. The village is having very good connectivity by road transport to District Fatehabad, Ratia, Tohana, Jakhal, Hissar, Ambala and Chandigarh. There is one Sub Tehsil in the village, one FCI Godown, one Hafed Godown, a Cotton Factory, Power House, Milk Plant, Telephone Exchange of BSNL and PWD Rest House, besides Educational Institutions. The map of the Municipal Committee as constituted is also annexed with the additional affidavit showing that the village is fully fit and prepared for being converted to Municipal Committee. This move is justified on the ground that there is need to develop sewerage, roads, water works and this could be achieved in a much better manner by constituting a Municipal Committee as there are large number of commercial activities of a non-agricultural nature available in the village.
Even density of population being 6557 persons per square kilometer is given in support of the decision of the Government. The Gram Panchayat was statedly having income of Rs.22 lacs from different sources and the population of Bhuna was expected to be around 40000, out of which 60% was engaged in non-agricultural activities for their livelihood. These were the factors, which were statedly considered by the Government in arriving at a CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 10 }:
decision to convert the Village Panchayat into Municipal Committee.
In the additional affidavit, it is again highlighted that process had commenced much earlier before even the present Panchayat was constituted. The fact that the committee was constituted to examine the issue is again reiterated. It is also pointed out that the present Government came in power in October, 2009, whereas the process had started earlier to declare this Gram Panchayat as Municipal Committee. It is accordingly stated that criteria, like minimum population, urban character of population and density of population were taken into consideration and being satisfied of these parameters, Government had taken a decision to constitute Municipal Committee.
Reference is made to Article 243(Q) of the Constitution of India, which deals with the constitution of Municipalities. As per this Article, every State shall be constituted of 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. A Municipal Council for a smaller urban area; and Municipal Corporation for a larger urban area, in accordance with the provisions of this part of the Constitution. Article 243(Q) can be noticed, which is as under:-
243Q. 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 CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 11 }:
(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 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"
It is also urged that action to convert Gram Panchayat into Municipal Committee is primarily legislative function in nature and open to be challenged on rather limited grounds. In this regard, reference is made to some of the decisions of this Court, which are based on some erudite precedents of the Hon'ble Supreme Court.
Mr.Arun Jain, Senior Advocate has pressed his challenge to the Notification mainly on three grounds. As per the counsel, the decision is purely politically motivated one and was a pre-decided exercise, where subsequent action showing application of a process CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 12 }:
is an eye-wash. The counsel would contend that this will cut short the tenure of the elected Panchayat, which will be to the prejudice to the petitioners. As per the counsel, constituting a Municipal Committee would place extra burden on the general public and Bhuna being a poor town, cannot bear it. The Panchayat, as per the counsel, was providing almost all the facilities.
Ofcourse, all the submissions made by the learned counsel are seriously countered by the Advocate General Mr.Hawa Singh Hooda, who has appeared to represent the State in this case.
As already noticed, initially on 27.1.2011 the petitioners had only objected to the move on a limited ground that the tenure of the petitioners, which was for five years, would be cut short. Interestingly, petitioners had stated in their objections that Bhuna may not be given a status of Municipality during their respective tenures. Another resolution was passed immediately thereafter on 21.2.2001, where somewhat different colour is added. It is now stated that residents of Bhuna mainly are poor people and they will have to pay house tax if the village is converted to Municipal Committee. This time, it is further stated that laborers would be deprived of benefit of MANERGA Scheme. In addition, it is mentioned that some people due to political consideration are contemplating this move, whereas majority of the people are not in support of the same. It is accordingly stated that this will not be in the interest of the village. All the affidavits of so called inhabitants filed in support of this stand are verbatim the same and operative part thereof in each affidavit is as under:-
CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 13 }:
"That with the constitution of Municipal Council, extra financial burden shall be caused to the general public. Bhuna is a poor town and the Panchayat has provided almost all the facilities".
These affidavits, thus, would appear to be a managed affair to support the cause espoused in the petition.
A communication dated 28.2.2011 (Annexure P-27) initiated by Sub Divisional Officer has noted the names of the objectors, the nature of the objection and its comments. The Sub Divisional Officer (Civil) in its comments has made reference to the population of village Bhuna and has viewed that it is necessary to make Municipal Committee in the village as the development work for such a population to the tune of 40000 can be done in a better manner by the Municipality, rather than the Gram Panchayat. Reference is also made to the resolution passed by the former Panchayat, which wanted the village to convert to Municipal Committee. On the face of this material available on record, it cannot be noticed in any manner that there is any political reason for converting this village from Gram Panchayat to Municipal Committee.
The plea pressed hard by the counsel on the ground that the decision is politically motivated could not really be fathomed or comprehended. There was nothing seen on the record in this regard. The Court accordingly asked the counsel to elaborate as to what political advantage any party would get if a Gram Panchayat is converted to a Municipal Committee. Only answer which this query could get was that the present Panchayat was owing allegiance to CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 14 }: the main opposition party . This line of submission is further pursued by pointing out that the whole action was completed in haste and hurry. In this regard, reference is made to the fact that the proposed notification issued on 13.1.2011, whereas objections were dealt with and forwarded on 28.2.2011. The Deputy Commissioner forwarded his recommendation on 1.3.2011 and notification was issued on 1.4.2011. This action is then linked to the announcement made by the Chief Minister during December, 2010 and, hence, it is stated that this action was just a formality and a futile exercise to complete the predetermined decision. While raising this argument, the learned counsel, in my view, has missed the factual position as is available on record. This plea may have had some tinge of conviction, but for the fact that the process to convert the village into Municipal Committee had commenced much earlier on the basis of a resolution passed by the previous Panchayat, which too was an unanimous and is dated 6.1.2008. The learned Advocate General, has made reference to various documents placed on record clearly showing the action of the Government in this regard had commenced much prior to constitution of the present Panchayat which would take the sting out of this submission and an attempt made by petitioners to give it a political motive. To me, these pleas of the petitioners would appear to be a rather linked to their personal motive and nothing more. The Advocate General, thus, is justified in pointing out that nowhere it is mentioned in the petition that the petitioners fought the election to the Gram Panchayat on a party ticket and they have not placed on record any material to show that they are members of any political CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 15 }:
party or of the main opposition party in the State. If the petitioners are so popular, says the Advocate General, then they can be elected as Municipal Councillors, when even the elections are held.
The allegations made against the local MLA for initiating and completing the process would again appear farfetched. Respondent No.4 was not even elected MLA when the process was commenced in 2008. At that time, the present Panchayat was not even the elected Panchayat. The petitioners have concededly been elected in the year 2010. It is urged that the area of village Bhuna now falls in the constituency represented by respondent No.4, he is responsible for making the grievances or request of the constituents reach the highest echelons of the administration. On what count there can be an objection when a representative of the area pleads for converting Gram Panchayat into Municipality? If such a representation was made to the Chief Minister and this was processed as per law, then no one can be faulted. After all the opposition by the petitioner is also on political lines and they have not shied in any manner to proclaim their affiliation. Despite persistent queries, the counsel could not offer much justification about his plea that the move is politically motivated. One could have appreciated if there is any objection to this move on some legal count or that it will not be for the benefit of village population, but linking it to political motive is incomprehensible. Ofcourse personal interest of 21 elected members is clearly visible and this seems to be the prime reason to term this as politically motivated. It, in fact, may amount to doing disservice to the development of the area of the village. The difficulty CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 16 }:
of the counsel for the petitioners to disclose the aspect of political advantage is not due to any inability on their part, but would be as there really can be no such advantage even visualised. At least, I could find none and none could be so achieved or perceived simply by converting a village Panchayat to a Municipality. The submission on these lines would not appeal to me, though pursued with vigor by the leaned counsel for the petitioners and I would not hesitate to reject the same.
A village, which is having 5 branches of major Banks, a Rest House, a Kisan Ghar and has a population of over 40000 with an income of Rs.50 lacs would certainly indicate that it is no more a village which is totally dependent on agriculture alone. There are major non-agricultural activities in this village. It has commercial establishments. It has a Cotton Factory, FCI and Hafed Godowns, a Sub Tehsil Office, Milk Plant, Telephone Exchange and Educational Institutions. Statedly and it is not disputed, there are 850 commercial shops, apart from the grain market consisting 151 shops. Would it be still a village? It is no more a village when it is viewed what this village has. A Police Station has been established here since 1962 and grain market is quite old. There are big size old schools. There is a Sugar Mill and Cotton Mill and people from neighbouring villages statedly come to this village to earn their livelihood. The plea to give it political colour does not carry any conviction.
To understand what is a village, reference can be made to the educative observations of the Hon'ble Supreme Court in State of U.P. And others etc. v. Pradhan Sangh Kshettra Samiti and CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 17 }: others etc., 1995 Supp.(2) SCC 305. It is as under:-
"29. As regards the alleged difference in the definition of "village" in the Act and in the Constitution, we have already referred to the fact that Article 40 of the Constitution does not define 'village' as such. It only refers to the organisation of"village panchayats" as units of self-government.
30. 'Village' has been defined in the Shorter Oxford English Dictionary (1993 Edition) to mean "a self-contained group of houses and associated buildings, usually, in a country area; an inhabited place larger than a hamlet and smaller than a town....... a small self-contained district or community within a city or town, regarded as having features characteristic of a village". The Law Lexicon by P. Ramanath Aiyar (1987 Ed.) states that 'village' includes - (a) a village-community; (b) village-lands; (c) rivers passing through or by village-land;
and (d) a group of villages. The expression 'village' connotes ordinarily an area occupied by a body of men mainly dependent upon agriculture or occupations subservient thereto. When the area is occupied by persons who are engaged mainly in commercial pursuits, rural areas in the vicinity of a town grow into a suburb of the town.
31. The Encyclopedia Americana (1983 Ed.) (Vol. 28) states that village is -
"a type of community, generally small but without exact or commonly accepted size limits. Generally, in the United States, the village is thought to be intermediate between the hamlet (a CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 18 }:
settlement with several families and some form of commerce but no more than 50 people) and the town (generally over 1,000 people).
Dealing with the origin and evolution of village, it states that- "the village is the typical form of rural settlement in most of the world - in Europe (except for Great Britain) in Asia, in Africa, and in much of South America..... It often seems to be the result of the settlement of lands that previously were only thinly occupied by indigenous populations, but probably also derives from the emergence of clear-cut private proprietorship of land. In much a Europe and in many other areas of the world, communal land ownership prevailed in the past, and this property arrangement was one basis for the village form of rural settlement, the community being set amid the tillage and grazing lands."
The Advocate General would point out that once the village is converted to Municipal Committee, its income will increase manifold, which at the moment is stated to be Rs.50.00 lacs. The village will receive substantial aid for effecting or improving the conditions in the village. The expected income to increase by this change would be Rs.4,53,000/- from agriculture land. Rental income from the shops would be 13.50 lacs and income from fisheries and dead animals would be Rs.30.00 lacs. At present, Panchayat is spending approximately Rs.50.00 lacs on the development works. Accordingly, nothing much is seen in the objection as raised against this notification on the ground that it is still a village and should not CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 19 }:
be converted to Municipal Committee. If a village which with such resources and income would not call for this change, then perhaps no village can ever ask for or could seek a change to Municipality.
The counsel for the petitioners also could not make any submission of substance in response to query whether this issue would be justiciable one or not. To me, it would sound a purely administrative decision taken by the Government for better administration of a particular area which earlier was being managed as a village by the Panchayat and now would be managed by an elected representative as a member of the Municipal Committee. What could be an objection to its decision, purely or otherwise taken for better administration of the area or the population. No doubt, the learned counsel for the petitioners sought to give a different colour by making reference to the provisions of Section 52 of the Gram Panchayat Act, 1994, which deals with dissolution of Gram Panchayat. The counsel for the petitioners would term this resolution to be a dissolution of Gram Panchayat, which could be so ordered on grounds as given in Section 52 of the Act. As per the counsel, the Gram Panchayat could be dissolved if it abuses its powers or is not competent to perform or makes persistent defaults in the performance of its duties under the Act or if it willfully disregards any instructions given or directions issued by the Panchayat Samiti or Zila Parishad or any instructions issued by the competent authority arising out of the audit of accounts of the Gram Panchayat or Inspection of the work. Section 52, in my view, deals with dissolution of a Gram Panchayat and not of a Gram Sabha. The purpose of this CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 20 }:
notification is not to dissolve the Gram Panchayat, but it may be a necessary consequence of constituting a Municipal Committee in place of Gram Panchayat.
This court in the case of Bhupinder Singh Versus Union of India, 1997(3) RCR (Civil) 594, has observed that there can be no gainsaying that the concept of dissolution of gram panchayat and ceasure thereof to exist are two different connotations and concepts. The dissolution of the gram panchayat cannot be raised to the pedestal of it ceasing to exist. The dissolution of the gram panchayat envisages the continuation of the corporate body while ceasure brings about an end to the corporate body itself. This, in fact, would be complete answer to the submission made by the counsel for the petitioners on the basis of Section 52 of the Act.
The Government would have power to constitute a Municipal Committee in place of Gram Panchayat is not otherwise seriously under challenge in this petition. When the necessary consequence of exercise of such power cannot be appreciated or considered by making reference to the provisions of Section 52 of the Act, the power to declare an area as a Municipality has been exercised under sub-section (1) of Section 3 of the Haryana Municipal Act, 1973 and there is no challenge raised in the petition to the power of the Government to constitute Municipal Committee. Even otherwise, the writ court would not test the validity of the decision as such, but would mainly be concerned with the decision making process, if there is no challenge made to the power and jurisdiction of the authority to pass the order. This challenge raised CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 21 }: on the basis of Section 52 of the Act appears to be a red-herring and not in any manner considered viable.
The question still would haunt whether this issue would be justiciable one or not. It is because of this that the counsel has primarily confined his challenge to the decision making process. The learned Advocate General would refer to some of the precedents to submit that the issue may not be strictly justiciable one. In addition, he would also submit that the Gram Panchayat, being a juristic person, is not entitled to raise any objection to alteration of boundaries or conversion of a Gram Panchayat to Municipal Committee. In support, the counsel has placed a view of the Division Bench of this Court reported as Gram Panchayat Village Khaira Versus State of Haryana and ors., AIR 1990 (Punjab) 88, where it is observed that any inhabitant of Municipal area is entitled to raise objections to alterations of boundaries of Municipal Area, but Gram Panchayat, being a juristic person, is not entitled to raise any such objection. Such privilege is with natural persons and not juristic persons like the Panchayat. This would, to a large extent, blunt the challenge raised by the counsel for the petitioners. It primarily is on the ground that the tenure of the members would be cut short.
Reference to the case of Madan Lal and others Versus State of Punjab, 2009 (2) RCR (Civil) 536 may not be out of place here. It is observed that the nature of power exercised by the Government to extend/alter the limits of Municipal Council/Municipal Committee is essentially a legislative in nature and, thus, open to challenge on very limited ground. Relevant paragraphs 17 and 18 of CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 22 }: this judgment can be noticed here for understanding the justiciability of such a cause:-
"17. Even otherwise, the nature of power exercised by the Government to extend/alter the limits of Municipal Corporation/Municipal Council/Municipal Committee is concerned, a Division Bench of this Court, while considering the extension of limits of Municipal Council, Banur, District Patiala under the paramateria provisions of Sub Section (1) of Section 4 and Section 5 of the Punjab Municipal Act, 1911 in C.W.P. No.2273 of 2007, Gram Panchayat Bassi Sekhan v. State of Punjab and others decided on 04.09.2008, after relying on the judgment rendered by the Hon'ble Supreme Court in State of Punjab V. Tehal Singh and others, AIR 2002 SC 533, has held that the power exercised by the Government to alter or extend the municipal limits is essentially legislative in nature and thus open to challenge on very limited grounds. The operative part of the aforesaid judgment dated 04.09.2009 reads as under:-
"There is another aspect of the matter. In our considered opinion the exercise of powers by the State Government under Section 5 of the Act, while proceeding to alter the municipal limits by excluding or including certain areas in the said Municipality, is legislative in nature. This view of ours finds support from a decision of the Hon'ble Supreme Court CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 23 }:
rendered in State of Punjab v. Tehal Singh and others, AIR 2002 SC 533 . In the reported case, their Lordships of the Hon'ble Supreme Court considered the nature of the power exercised by the State Government under Sections 3 and 4 of Punjab Gram Panchayat Act, 1952, providing for establishment of Gram Sabha areas and constitution of Gram Sabhas. Relying upon principles of law enunciated in earlier decision reported as Rameshchandra Kachardas Porwal and others etc. v. State of Maharashtra and others, 1981 (2) SCC 722 and Union of India and another v.
Cynamide India Ltd. and another, 1987(2) SCC 720, and the provisions of Sections 3 and 4 of the Punjab Gram Panchayat Act, 1952, it was held that making of a declaration under Section 3 of the Act, determining the territorial area of a Gram Sabha and thereafter establishing Gram Sabha for that area is an act, legislative in character. In Para 7 of the said judgment, their Lordships stated the principles of law, which read as under:-
"7. The principles of law that emerge from the aforesaid decisions are (1) where provisions of a statute provide for the legislative activity i.e. making of a legislative instrument or promulgation of general rule of conduct or a declaration by a CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 24 }:
notification by the Government that certain place or area shall be part of a Gram Sabha and on issue of such a declaration certain other statutory provisions come into an action forthwith which provide for certain consequences; (2) where the power to be exercised by the Government under the provisions of a statute does not concern with the interest of an individual and it relates to public in general or concerns with general direction of a general character and not directed against an individual or to a particular situation and (3) lay down future course of actions, the same is generally held to be legislative in character. "
Applying the aforesaid principles of law, we find that vide draft notification dated 23.10.2006 (Annexure P-2) under Section 5(2) of the Act and final notification dated 19.12.2006 (not under challenge) under Section 5 (1) of the Act, declaration for inclusion of the area of the petitioner Gram Panchayat within the municipal limits of Municipal Council, Banur does not concern with the interests of an individual or a particular resident of the area but is general in character and relates to an area inhabited by all the residents sought to be included within the municipal limits, and therefore, legislative in nature and not open to challenge on the grounds CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 25 }:
as canvassed in the present petition. "
18. In view of the above settled legal position also, we are not inclined to interfere with the notification dated 03.11.2004 (Annexure P-5)".
In addition, the Advocate General has also pressed into service number of decision of this Court dealing with somewhat similar issues. Reference is made to a decision of CWP No.5424 of 2010(Gram Panchayat Bhadson Vs. State of Punjab), decided on 9.9.2010. Issue in this case before the court also related to a creation of another Panchayat Bhadson by dissolving Gram Panchayat for the same village, which was challenged on the ground of being illegal, arbitrary and having been passed with malafide intention to deprive the elected Gram Panchayat as is the ground raised in the present petition. By referring to the provisions of Article 243-Q of the Constitution of India and Sections 4 and 5 of the Punjab Municipal Act, it is noticed by the Court that as and when such an action is taken by the Government, the approach had generally been made to challenge the same. The court went on to uphold the notification and termed it to be the need of requirement of time.
In Tulsipur Sugar Co.Ltd. Versus Notified Area Committee, Tulsipur, AIR 1980 SC 882, the Hon'ble Supreme Court has observed that declaration of a geographical area into a town area is a legislative act in nature because the application of the rest of the provisions are dependent on such declaration.
A view that this court would have limited function to perform by exercising a judicial review on the available limited CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 26 }:
grounds, thus, would clearly emerge. When finding undisputedly is that creation of a Panchayat or Municipal Committee is a legislative function, the court would then perform a limited function of examining the decision making process and where the same is noticed to have been followed, then the court would keep its hands off and would decline to interfere in such legislative functions. A support can be had from the view expressed in the case of Mrs.Swaran Lata Jain and others versus State of Punjab and others, 2008(4) RCR (Civil)
278. In this case, it is held as under:-
"8. ........ In any case, it is prerogative of the State to decide about the extension of the municipal areas and it is not for the Court to venture unless any action of the State Government or its functionaries is shown to be actuated and influenced by apparent bias and mala fide based upon specific and concrete allegations on the basis of verifiable facts. There is nothing on record. The power of judicial review in such matters has to be exercised with utmost care and has to be circumscribed with constitutional and statutory limitation. Hon'ble Supreme Court in the case of State of U.P. and others v. Pradhan Sangh Kshettra Samiti, 1995 Supp(2) Supreme Court Cases 305 CWP No.5424 of 2010 made following observations : "44. It is for the Government to decide in what manner the panchayat areas and the constituencies in each panchayat area will be delimited. It is not for the court to dictate the manner in which the same would be done. So long as the panchayat areas and the constituencies are delimited in conformity with the CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 27 }:
constitutional provisions or without committing a breach thereof, the courts cannot interfere with the same...."
It is noticed in Pradhan Sangh Kshettra Samiti 's case (supra) that needs of the people would change with the development in ecologic, scientific and technological fields, means of transport and communication. The concept of self sufficiency and self- governance would also change. The Hon'ble Supreme court made some observations in this regard, which are as under:-
33. Hence there cannot be any immutable social, political, economic or organisational concept of village as a self-
governing unit. In a developing country like ours, where the population is growing fast, where the society is in ferment on all fronts, where divisive forces of all kinds abound, where the vast majority of population is illiterate and is the victim of ignorance, superstition, blind faith, biases and prejudices, and is shackled by tradition, and irrational customs and practices, there is an urgent need to evolve means to unite and integrate the society, to expose the populace to larger and higher goals, to imbibe in them the wider perspectives and to forge a socially cohesive front for breaking the barriers of race, caste, class, religion and region rather than to pander to the age-old, self- centered physical and mental barriers. ....."
Viewed in the above background, the impugned notification would sound fully justified as it would meet all the parameters laid down by the Hon'ble Supreme Court in the above noted far reaching observations made above. As is noticed, CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 28 }:
population is growing fast. The society is in ferment on all fronts and vast majority of population is illiterate. The concept of grass root level of administration, therefore, necessarily has to change with the advance and progress at all levels. It is accordingly noticed that the purpose of their constitution and functioning for that purpose have to be in conformity with the larger, social, political and economic course.
The counsel appearing for the petitioners made an attempt to distinguish the judgments cited by the State counsel on the basis of some differently worded provision contained in Haryana Municipal Act, where specific requirement of dealing and hearing with the objections so filed is provided unlike other statutes, on which the judgment cited by and on behalf of the State are statedly based. In my view, provisions of Section 3 sub-section (5) would not make any substantial difference as is being pleaded by the counsel for the petitioners. What this section provides is the manner of dealing with the objections. It would be of interest and importance to notice the exact words used in this section, which are as under:-
"3. Procedure for declaring municipality.--(1) The State Government may, by notification, propose any local area to be a municipality under this Act:
1[----] (2) Every such notification shall define the limits of the local area to which it relates.
(3) A copy of every notification under this section, with a translation thereof in such language as the State Government may direct, shall be affixed in some CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 29 }:
conspicuous place in the court-house of the Deputy Commissioner within whose jurisdiction the local area to which the notification relates lies, and in one or more conspicuous places in that local area.
(4) The Deputy Commissioner shall certify to the State Government the date on which the copy and translation were so affixed and the date so certified shall be deemed to be the date of publication of the notification. (5) Should any inhabitant desire to object to a notification issued under sub-section(1), he may, within six weeks from the date of its publication, submit his objection in writing through the Deputy Commissioner to the State Government and the State Government shall take his objection into consideration.
(6) When six weeks from the date of the publication have expired, and the State Government has considered and passed orders on such objections as may have been submitted to it, the State Government may, by notification, declare 1[the local area for the purpose3s of this Act, to be a municipality] (7) The State Government may, by notification, direct that all or any of the rules which are in force in any municipality shall, with such exceptions and adaptations as may be considered necessary, apply to the local area declared to be a municipality under this section, and such rules shall forthwith apply to such municipality without CIVIL WRIT PETITIOIN NO.7756 OF 2011 (O&M) :{ 30 }:
further publication.
(8) 2[----] (9) 3[----] (10) A committee shall come into existence at such time as the State Government may, by notification, appoint in this behalf".
This in my view is an enabling provision to entitle an inhabitant to file his objection to the notification issued in writing, through the Deputy Commissioner, which the State Government is to take into consideration. The objections were duly invited and there is nothing on record to show that these were not considered before issuing the notification. The requirement is only for considering the objections and not that they have to be dealt with and are to be accepted or rejected by passing any speaking or reasoned order. Once it is held that constituting a municipal council is a legislative function, it would be too farfetched to urge or to hold that for exercise of legislative function, some objections are to be invited and these would call for examination. These are required to be considered only. After all this is a function which is of legislative nature and can be exercised. If it is so held, it would be adding too much into the provision of this section and would not appeal to me in any manner.
Thus, there is no ground to interfere with the impugned notification on any of the grounds as urged and the writ petition is accordingly dismissed.
August 24, 2012 (RANJIT SINGH ) ramesh JUDGE
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