Rajasthan High Court - Jodhpur
Bhanwar Lal Mundra & Ors. vs The State Of Rajasthan & Ors. on 13 May, 2015
Equivalent citations: AIR 2015 RAJASTHAN 97, (2015) 3 RAJ LW 2208 (2016) 3 WLC (RAJ) 255, (2016) 3 WLC (RAJ) 255
Author: Sunil Ambwani
Bench: Sunil Ambwani
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B.Civil Writ Petition No.10491/2009
Bhanwar Lal Mundra & Ors. V/s The State of Rajasthan & ors.
Date of Order::- 13th.5.2015
PRESENT
HON'BLE CHIEF JUSTICE MR.SUNIL AMBWANI
HON'BLE MR.JUSTICE BANWARI LAL SHARMA
Mr.M.S.Singhvi, Sr.Advocate with )
Mr.Hemant Dutt )-for the petitioners.
Mr.P.R.Singh, Addl.Advocate General )
Mr.Dinesh Ojha )
Mr.A.K.Dadhich. )-for the respondents.
ORDER
(Reportable) BY THE COURT (Per Hon'ble Sunil Ambwani, Chief Justice)
1. The petitioners are residents of Mundron Ka Bas, Gram Panchayat Napasar District Bikaner. By this petition, they have prayed for a direction to declare the Notification dated 18.9.2009 issued by the State Government as illegal and to quash the same with consequential directions, by which the Notification dated 6.10.2008 issued by the State Government under the authority of the Governor of Rajasthan declaring the Gram Panchayat Napasar as Municipality (Nagar Palika) Class IV, was withdrawn in exercise of the powers under section 3(1)(a) of the Rajasthan Municipalities Ordinance, 2008, which was later-on enacted as the Rajasthan Municipalities Act, 2009. The petitioners have also prayed for direction to hold elections for Municipal Board, 2 Napasar and not to hold elections for Gram Panchayat, Napasar.
2. The interim relief application for staying the elections was rejected on 17.1.2005 on the ground that the elections were notified on 24.12.2014.
3. The Napasar is situated at a distance of 27 kms. from Bikaner. It has a population of 19500 as per 2001 Census. At present, the population is alleged to have increased to more than 30,000. It is an urban area having industrial set up by the RIICO with several industrial units engaged in the manufacture of wool and woolen products, mosaic tiles, PVC pipes and cement pipes. It has two Senior Secondary Schools, one for boys and one for girls; 20 bedded Government hospital, two branches of nationalized Banks, State Bank of Bikaner & Jaipur and M.G.D. Gramin Bank; a telephone exchange; a Police Station; and offices of the Assistant Engineers of PHED and Jodhpur Vidhyut Vitran Nigam Limited. It is on a railway line with a Railway Station and Bus Stand of the Rajasthan State Road Transport Corporation.
4. Prior to independence of India, the erstwhile Bikaner State had declared the village Napasar as Municipality vide Notification dated 2.3.1944. On the promulgation of the Constitution of India, a Gram Panchayat was established in Napasar, which continued in its existence till 2007. The Director, Local Self Department called upon the District Collector, Bikaner on 22.10.2005 to submit information for the purposes of enabling the State Government to take a decision for constituting Municipal Board at Napasar. A representation was also made by Shri Pareek Jan Kalyan Samiti, Napasar to that effect giving the details of urban 3 development in Napasar to the Minister of the Panchayat Raj Department.
5. The District Collector, Bikaner collected the necessary information and forwarded the same to the State Government, in which he, after getting a report from Tehsildar, reported that the village Napasar has geographical area of 7795 hectares with a population of 19,550 according to 2001 Census. It has one member of Zila Parishad and one member of Panchayat Samiti. In the village, there is a land measuring 24 hectares belonging to Railway Department; 17 hectares for RIICO; 6 hectares for 132 KV G.S.S. Napasar; 54 hectares for PWD; 5812 hectares for agriculture purposes. Apart from this, 299 hectares of land was used as abadi land by Gram Panchayat; 1015 hectares of land belonged to the Forest Department; and 444 hectare is a gochar land. A map of the village was enclosed showing the railway line crossing Napasar from the middle.
6. The State Government satisfied with the requirements of the constitution of the Municipality, issued a Notification dated 6.10.2008 declaring the Gram Panchayat, Napasar as Municipality (Nagar Palika) Class IV under section 3(1)(a) of the Rajasthan Municipalities Ordinance, 2008 (later on enacted as Rajasthan Municipalities Act, 2009). By the Government order dated 16.10.2008, in pursuance to Section 3(7)(C) of the Rajasthan Municipalities Ordinance, 2008, it was directed that until elections are held under sub-section (1) or the term of the Municipality is expired, whichever is earlier, the Sarpanch, Up- sarpanch and the Panch or Panchas representing the area of the 4 village so included in or declared as a Municipality, shall be deemed to be the additional members of the Municipality in which such area of the village is included.
7. The Local Self Govt. Department also issued a Government order on 13.2.2009 giving administrative sanction for creation of 39 posts of "Safai-Karamchari" and also sanctioned a budget of Rs.4,83,000 for the said purpose.
8. A Writ Petition No.1490/2009 was filed by Nathi Devi, Sarpanch and Murli Manohar Ojha, Upsarpanch of the Gram Panchayat, Napasar against the declaration of Gram Panchayat Napasar as Municipality Class-IV. The said writ petition was dismissed on 25.2.2009, with liberty to the petitioners to approach the State Government after passing resolution in the newly constituted Municipality, for appropriate decision. In Special Appeal No.383/09, an order was passed on 29.4.2009 that until further orders, the petitioners shall not be unseated from their status as elected representatives. On 18.2.2011, the Special Appeal was dismissed with the following observations:-
"Learned counsel for the appellant submits that this appeal has rendered infructuous on account of certain subsequent events which have cropped up during pendency of the litigation. We accepted the statement and accordingly, dismiss the appeal as having been rendered infructuous."
9. On 18.9.2009, the State Government issued the impugned Notification in exercise of the powers under section 3 of the Rajasthan Municipalities Act, 2009 withdrawing the Notification dated 6.10.2008 by which the Gram Panchayat Napasar was 5 declared as Municipality (Nagar Palika) Class-IV, giving rise to this writ petition.
10. It is submitted by learned Senior Counsel appearing for the petitioners that the order withdrawing the Notification is grossly illegal, arbitrary and is violative of the principles of natural justice. It has been passed against the constitutional scheme as envisaged by the Seventy-fourth Amendment to the Constitution of India providing for constitution of the Municipalities under Article 243Q inserted in Part-IX-A by the Constitution (Seventy- fourth Amendment) Act, 1992 with effect from 1.6.1993. There is no provision under the Rajasthan Municipalities Act, 2009, the Rajasthan Panchayati Raj Act, 1994 and the Constitution of India to de-notify a Gram Panchayat. There was no power vested in the State Government to withdraw the Notification, by which the Gram Panchayat Napasar was declared to be a Municipality Class- IV. The Panchayat can only be constituted under the Rajasthan Panchayati Raj Act, 1994. There are no provisions under the Rajasthan Municipalities Act, 2009 to withdraw the Notification or to de-notify a Municipality and to constitute or re-constitute the Gram Panchayat and no such power exists in the Rajasthan Panchayati Raj Act, 1994, either. After the Notification declaring Gram Panchayat, Napasar as a Municipality Class-IV, some posts were sanctioned and the budget was also sanctioned. The establishment of Napasar as a Municipality Class-IV was complete in all respects, which could not be undone by an executive order.
11. Learned Senior Counsel submits that Section 3 of the 6 Rajasthan Municipalities Act, 2009 provides for de-limitation of the Municipalities. The State Government may declare any local area not included within the limits of a Municipality to be a Municipality, or include any such area in a Municipality, or exclude any local area from a Municipality, or otherwise alter the limits of any Municipality. It has no power to withdraw the Notification declaring a Municipality. The provisions of Section 3(1)(d) providing the cases in which the Municipality can be dissolved, does not include any such event, which may authorize the State Government to withdraw the Notification declaring a Municipality.
12. It is submitted that the transition from rural to urban area, as envisaged in Part IX-A of the Constitution of India amended by the Constitution (Seventy-fourth Amendment) Act 1992 with effect from 1.6.1993 provides for a Nagar Panchayat to be constituted a transitional area, in transition from a rural area to an urban area, a Municipal Council for a smaller urban area and a Municipal Corporation for a larger urban area, under Article 243-Q (1). The path of progress of the residents of a rural area to be constituted as a transitional area, a smaller urban area or a larger urban area, is not provided to be reversed. The withdrawal of the Notification and thereby converting the municipal area into rural area is a retrograde step of the State Government, which is not permissible by the Constitution of India. The urban area of Napasar had all the signs of urbanization. It was progressing on the path of development and was so recognized and notified and declared as Municipality (Nagar Palika) Class-IV by the State Government. There was absolutely no material whatsoever with 7 the State Government nor any representations were made by the elected representatives or any other persons to withdraw the Notification.
13. Learned Senior Counsel appearing for the petitioners has relied on the judgment of Kerala High Court, which according to him, addresses all the legal issues, in K.P.Raveendran & anr. V/s State of Kerala & ors. (AIR 2005 Kerala 319), in which a similar Notification of withdrawal was quashed. He has also relied upon the judgment of this Court in Vishwa Nath V/s State of Rajasthan & ors. (1993 WLN 127), in which it was held that in order to establish a new Gram Panchayat of an area, which was part of the Municipality or to add any area to a Gram Panchayat, which was earlier an area covered by a Municipality, the State Government is required to follow the procedure laid down in the Rajasthan Panchayat Act, considering various factors like the population, the inhabitation, the nature of the area being rural or urban and others.
14. Learned Senior Counsel for the petitioners submits that the respondents cannot take help of Section 21 of the General Clauses Act, 1897, as the provisions of Section 21 are not applicable for withdrawing the Notification, which has been issued in exercise of the legislative powers. He submits that in view of the judgments of Hon'ble Supreme Court in Tulsipur Sugar Co. Ltd. V/s The Notified area Committee, Tulsipur (AIR 1980 SC 882) and Baldev Singh V/s State of Himachal Pradesh (AIR 1987 SC 1239), the issuance of Notification is a legislative act, which cannot be reversed under Section 21 of the General 8 Clauses Act.
15. Learned Additional Advocate General appearing for the State submits that the State Government has the power to withdraw the Notification, under Section 101 of the Rajasthan Panchayati Raj Act, 1994 and Section 3(1) of the Rajasthan Municipalities Act, 2009. He submits that Section 3(1)(d) provides for de-limitation of an area of Municipality into an area of Panchayat and in that case, under section 3(1)(d)(iv), the Municipality shall be dissolved. He submits that various Schemes implemented in the village Panchayat had to be discontinued on its de-limitation as Municipality and on which, the State Government considered it appropriate to withdraw the Notification. Learned Additional Advocate General has relied on the judgment of Punjab and Haryana High court in Inderjit Singh and ors. V/s The State of Haryana and ors. (CWP No.3705/2007) decided on 18.2.2014 and the Full Bench decision of Punjab and Haryana High Court in Gram Sabha, Begowal V/s The State of Punjab & anr. (decided on 3rd October, 1980) (AIR 1981 PH 101), in which in a similar case, the Full Bench of Punjab and Haryana High Court upheld the Notification. He has also relied on the judgment of this Court in Girdhari Singh & ors. V/s The State of Rajasthan & ors. (D.B. Civil Writ Petition (PIL) No.11436/2013) decided on 17.1.2014, in which the Division Bench of this Court declined to interfere with the order by which the Sub-Tehsil of village Khatu Kallan, Tehsil Jayal District Nagaur was de-notified.
16. Having heard learned counsel appearing for the parties, we 9 are of the opinion that the reasons given by Kerala High Court in K.P.Raveendran & anr. V/s State of Kerala & ors. (supra) are much closer in support of the arguments of learned Senior Counsel for the petitioners. The transition from rural area to urban area is a gradual process on the path of development. The urban area receives recognition of various facilities such as schools, colleges, hospitals, police stations, industries, opportunities for growth and employment. The Seventy-fourth Amendment of the Constitution of India recognized this path of progress of the rural areas in India and has added Part- IX-A by the Constitution (Seventy-fourth Amendment) Act, 1992, in which, Article 243Q provides as follows:-
"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
(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 10 agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part."
17. We do not find anything in Part-IX, which provides for the Panchayats and Part IX-A, which provides for the Municipalities, in which a step in forward direction and the progress made by the members of a community living in village marching on the road to progress qualify under Article 243Q(2) of the Constitution of India to be declared a transitional area, and which gradually develops into a smaller urban area and thereafter, a larger urban area, can be stopped and be allowed to move backwards. There is no provision in the Constitution of India, by which a Municipality can be reconstituted by way of a reverse and retrograde process into a Gram Panchayat. The relevant paragraphs of the discussions made in the judgment of Kerala High Court in K.P.Raveendran & anr. V/s State of Kerala & anr. (supra) are quoted as below:
"13. Article 243Q(1)(a) provides for the constitution of a Nagar Panchayat for a transitional area, that is, an area in transition from a rural area to an urban area. Article 243Q envisages two types of urban areas, namely, smaller urban area and larger urban area. There is no transitional area contemplated where the transition is from a smaller urban area to a larger urban area. The constitutional context emanating out of Article 243Q conceives and envisages only the transition of a rural area to an urban area, be it as a smaller urban area or as a larger urban area. It does not contemplate or provides to the contrary, for the transition of an urban area into a rural area. This is what emanates out of a plain reading of Article 243Q(1) of the Constitution. There is no provision in either among Parts IX or IXA, for the transition of an urban area to a rural area.11
14. While Article 243(g) gives no constitutional yardstick for the Governor to ascertain and specify a village, Article 243Q(2) provides yardsticks to identify transitional area, smaller urban area and larger urban area. It has been held by the Apex Court in State of U. P. v. Pradhan Singh Kshettra Samiti, 1995 Supp (2) SCC 305: (AIR 1995 SC 1512) that in specifying villages for the purpose of Part IX, the Governor is not bound by any particular Yardsticks.
Article 243Q(2) provides the yardsticks for the three types of areas mentioned in Article 243Q(2) and the municipal area as defined in Article 243P(d) is the territorial area of a Municipality as is notified by the Governor. These provisions would show that there cannot be a transition of the constitutionally created smaller urban area, larger urban area and a transitional area, to be a village, to fall into Part IX of the Constitution and such an exercise cannot be done under Part IXA of the Constitution. This is because the Municipality, in relation to a transitional area or a smaller urban area, or a larger urban area, on its coming into existence, becomes a constitutional institution and cannot be abolished by an act of the Legislature without specific authorisation in that regard in the Constitution. All that could be clone, if a situation demands, is to exclude any particular urban area from a Municipality to be made part of another Municipality or merger of municipalities or creation of a new municipality, either by the area being excluded or by merging such excluded areas.
However, there cannot be a transition of an urban area as a rural area. I may at once notice that unlike the Municipalities Act, 1960, which had provided for the abolition of Municipalities, there is no such provision in the Municipality Act, 1994. Such provisions would be contrary to the constitutional provisions in Part IXA and hence, obviously, not made in the 1994 Act. However, Section 4(6) provides for handling the situation, owing to such abolition. The said provision is superfluous.
12
15. The aforesaid view that I take is also fortified by the nature of Section 4 of the Municipality Act, 1994 which provides for conversion of village Panchayat into a Town Panchayat or a Municipal Council, for conversion of a Town Panchayat into a Municipal Council and for conversion of a Municipal Council into a Municipal Corporation. This shows that it had never been in the contemplation of even the State Legislature while making the Municipality Act, 1994 that a Municipality could be converted to a village Panchayat. This was because it was wholly impermissible in the constitutional context in which Part IX and Part IXA have been separately provided, to govern two types of local self-government institutions.
17. In my considered view, as rightly urged by senior Advocate Sri T. P. K. Nambiar, this is a context to the contrary, which excludes the application of Section 21 of the General Clauses Act and therefore, even in terms of Article 367, the said rule of interpretation does not apply to the situation in hand. This is so because unless the power to re-transit an area which has become smaller urban area or larger urban area, to be a rural area is not expressly provided for in the Constitution, it will result in conceding a power to re-transit an area from the operation of part IXA to part IX of the Constitution. Had it ever been the intention of the Parliament to provide for such a re-transit, a crucial process, there is no reason why such specific provision does not find a place in the Constitution itself. The very absence of such a provision leads only to the conclusion that such re-transit is impermissible. Therefore, the application of the provisions of the Section 21 will be repugnant to the context and situation governed by Article 243Q(2). In such situations, recourse to the General Clauses Act is not available (See T.M. Kanniyan v. ITO, AIR 1968 SC 637).
19. Therefore, a rural area after its transition to be an urban area, thereby becoming a "smaller urban area" or a "larger urban area" in terms of Article 243Q of the 13 Constitution of India, cannot be converted to be a rural area. Further, no such exercise can be done under the provisions of Part, IXA of the Constitution of India or otherwise. Hence, the impugned "de-linking" of certain urban areas from the municipalities, for being treated as rural areas is unconstitutional and void."
18. In K.P.Raveendran & anr. V/s State of Kerala & anr. (supra), learned Single Judge discussed in detail the provisions of the Municipalities Act of the State of Kerala and observed that there was nothing in the provisions of the Act which may give power to exclude any area from the municipal area and to re- transit the municipal area so excluded, to be a rural area. He held that the rural areas coming into being under Part IX of the Constitution by virtue of the exercise of notifying the villages, do not survive after its transit to an urban area, and further that Section 21 of the General Clauses Act is not attracted in view of the judgment of Supreme Court in Baldev Singh V/s State of Himachal Pradesh (supra).
19. Section 101 of the Rajasthan Panchayati Raj Act, 1994 has no application to the present case. The impugned Notification was not issued in exercise of the powers under section 101 of the Rajasthan Panchayati Raj Act, 1994. It was issued with reference to Section 3(1) of the Rajasthan Municipalities Act, 2009. Further, the power under section 101(1) of the Rajasthan Panchayati Raj Act, 1994 can be exercised only after giving one month's notice as prescribed in the Rules. In the present case, no notice was given to the Municipality or the residents of Napasar. We also find that Section 101(1)(a) of the Rajasthan Panchayati 14 Raj Act, 1994 speaks of a local area whether whole or a part within the limits of a Municipality to be declared by a Notification as Panchayat Circle, and not the whole of the area of the Municipality. Once the village Panchayat is notified as Municipality, the provisions of the Rajasthan Municipalities Act, 2009 and not the provisions of the Rajasthan Panchayati Raj Act, 1994 will be applicable to such Municipality.
20. Section 3(1) of the Rajasthan Municipalities Act, 2009 is quoted as below:-
"3. Delimitation of Municipalities.- (1) The State Government may, by notification published in the Official Gazette, declare any local area not included within the limits of a Municipality to be a Municipality, or include any such area in a Municipality, or exclude any local area from a Municipality, or otherwise alter the limits of any Municipality and when-
(a) any local area is declared as, or included in, a Municipality, or
(b) any local area is excluded from a Municipality, or
(c) the limits of a Municipality are otherwise altered, by amalgamation of one Municipality into another or by splitting up a Municipality into two or more Municipalities, or
(d) any local area ceases to be a Municipality, the State Government may, notwithstanding anything contained in this Act or any other law for the time being in force, by an order published in the Official Gazette provide ,-
(i) in a case falling under clause (a), that the election of the members for the area or the additional area shall be held within a period of six months from the appointed day;
(ii) in a case falling under clause (b), that the members who in the opinion of the State Government represent the area excluded from the Municipality shall be removed;
(iii) in a case falling under clause (c), that until the term of 15 the Municipality in which another Municipality is amalgamated expires under this Act, the Chairperson, Vice-Chairperson and members of such another Municipality shall be deemed to be the members of the Municipality in which such another Municipality is amalgamated and where a Municipality is split into two or more Municipalities, that the members representing the area included in the newly constituted Municipality shall be deemed to be the members of such new Municipality and such new Municipality shall continue, unless dissolved sooner, until original Municipality would have continued;
(iv) in a case falling under clause (d), that the Municipality shall be dissolved.
Explanation.- In this sub-section, "appointed day"
means the day from which a change referred to in any of the clauses (a) to (d) takes effect."
21. The provisions of Section 3(1) do not support the submissions of learned Additional Advocate General that any local area which is declared as or included in the Municipalities can be de-notified as village Panchayat. Section 3 provides for delimitation of Municipalities. The State Government may in exercise of power under sub-section (1) of Section (3) declare any local area not included within the limits of a Municipality to be a Municipality, or include any such area in a Municipality, or exclude any local area from a Municipality, or otherwise alter the limits of any Municipality. It cannot withdraw the Notification by which a Municipality was constituted nor it can withdraw the entire areas of Municipality and as a consequence allow the village Panchayat to revive. The manner in which learned Additional Advocate General has read the provisions of Section 3 16 (1), cannot be sustained.
22. The judgment of Punjab and Haryana High Court in Inderjit Singh & anr. V/s The State of Haryana & ors. (supra) was based upon the interpretation of Section 8 of the Haryana Municipal Act, 1973 applicable to the State of Haryana, which gave express powers to the State Government to abolish the Municipality declared under section 3 of the Act. The reasoning in the judgment thereafter on the exercise of the power to abolish the Municipality is not persuasive to be accepted. The Division Bench of the Punjab and Haryana High Court did not consider the scheme of the Constitution after Seventy-third and Seventy- fourth Amendment, which does not provide for a Municipality to revert back to village Panchayat. We may further observe that the Division Bench in Inderjit Singh's case (supra) also took into consideration that village Sadhaura was a small village with few houses and shops. It had a population of 13176, out of which, 2589 were Scheduled Castes living in the radius of one kilometer. The village did not have significant development and that the burden of taxes on constitution of Municipality would have been excessive on the residents of the village.
23. In the present case, we find that the Gram Panchayat Napasar has matured itself into an urban area and with almost all the urban facilities available in Napasar, it has moved on the path of urbanization and was declared as Municipality Class IV by the State Government. The right to development has been recognized to be included in the right to life guaranteed under Article 21 of the Constitution of India. It is a component of right to life. It 17 cannot be treated as a mere right to economic betterment and includes within it an umbrella of fundamental human right such as civil, political, cultural and social process, right to health, education and for decent and clean environment, vide N.D.Jayal V/s Union of India ((2004) 9 SCC 362), in which reliance was placed on Samatha V/s State of AP ((1997) 8 SCC 191) and Madhu Kishwar V/s State of Bihar ((1996) 5 SCC 125). In Election Commission of India V/s St.Mary's School ((2008)2 SCC 390), it was held that the right to development is a valuable human right.
24. In the reply filed by the State Government, the only reason to withdraw the Notification given is that the implementation of the various schemes in the village, such as, MANREGA would be discontinued. The relevant paragraph of the reply filed on behalf of the respondents no.1-4 is quoted below;
"(C) That representations were made to the Hon'ble Chief Minster and Hon'ble Minster for Urban Development and Housing for declaring Napasar, Khajuwala and Lunkaransar as Gram Panchayats again, so that the benefit of the Schemes like National Rural Employment Guarantee can be extended to these villages, so that the rural unemployed people of these villages may be benefited under the said schemes. In these circumstances, it is in the larger interest of the public in general and the villagers of Napasar in particular the notification Annex.11 is passed. Hence, the petitioner is not entitled for any relief from this Hon'ble Court and the writ petition deserves to be dismissed."18
25. In our view, the reasons for withdrawing the Notification are wholly absurd. A village, which has progressed and has organized facilities of schools, hospitals, industries, industrial areas, commercial areas, electricity and water, cannot be allowed to revert back to rural life only for the sake of continuance of some of the schemes such as National Rural Employment Guarantee. A Municipality cannot be dissolved to back track to become a Village only for the purpose of benefit of some of the schemes, which are village specific. There is no material nor any pleadings in the reply that the resolution to the effect of dissolving the Municipality was passed or any public notice or hearing to the residents of Napasar was given before the Notification dated 18.9.2009 was issued. The difference between Eleventh and Twelfth Schedule for the development of rural and urban area amply demonstrates that the requirement of an urban area is entirely different to meet the aspirations of the people, who have collectively worked together and marched to development towards more promising future for themselves than living in a model village with schemes of rural employment and upliftment. The constitutional scheme does not permit such a retrograde step of governance. The narrow autocratic political considerations cannot be allowed to subvert the constitutional scheme and violate the fundamental rights of the citizens of the country.
26. For the aforesaid reasons, we are of the considered view that the Notification dated 18.9.2009 issued by the State Government withdrawing the Notification dated 6.10.2008 declaring village Panchayat Napasar as Municipality Class-IV, is 19 illegal, arbitrary and has been issued by the State Government with oblique and retrograde purpose, for which it did not have any power to advice the Governor to issue such Notification. The impugned Notification is declared unconstitutional being violative of Article 21 and Article 243Q in Part-IX-A of the Constitution of India as inserted by Constitution (Seventy-fourth Amendment) Act, 1992 with effect from 1.6.1993. It is also declared to be a retrograde step of governance by the State Government, which cannot be sustained in law.
27. The writ petition is consequently allowed and the impugned Notification dated 18.9.2009 is quashed. The State Government will take consequential steps. There shall be no order as to costs.
(BANWARI LAL SHARMA),J. (SUNIL AMBWANI),CJ. Parmar