M D Nadeem Pasha S/O Late Abdul Gani vs State Of Karnataka on 6 April, 2011

[Cites 11, Cited by 0]

Karnataka High Court

M D Nadeem Pasha S/O Late Abdul Gani vs State Of Karnataka on 6 April, 2011

Equivalent citations: 2011 (4) AIR KAR R 67

Bench: B.V.Nagarathna

 

LA)

'Tumkur Municipai Carpdration' and in that regard a-'--r_epd:'t

with regard to the strength of population, 

employment in non~agrii:ultural sector, <.'.i_ni:;3my'e

expenditure at the City and dthe-r"sur:h 'd"eta_:i.isiiMate'--':'alied it

for and it was tentatively pr0p.€;sedA_A_lthatl"*if"

areas were included to the-.,e'><.iV_stintj" a_rea_1tz.ft~he""Ttimkur'l

City Municipality, the Corpe--rayt'ivon"--»..eouildﬁ'be ftsrmed by

upgrading the Tumkur' _lYihr}.iciVpal_laécedncil to "Tumkur

City CorrJoravti_t&>n7f.'  city Municipal
Council   and assented to
the fdrma_t'i'an" iiorporation. Respondent

No.1Zﬁsubseidd"ei'it:liy' yiyssaie-d 'preliminary notification under Section of the Karnataka Municipai Cdr§pdi'ation (hereinafter, referred to as the :di:..._25.1.2010, and objections were called for with 1 establishment of the Tumkur City Cdiitperatidtii It is stated that after consideration of the yyoybjeetvitins a declaration has been made on 251832010 by a Q'-..V':ietit'ication. The said notifications are produced as .. ,_..i\nnexures~E and F respectively. By a subsequent notification dated 29.11.2010, it is deeiared that 'Tumkur City ivitinieipaiity' wduid be named as "Tdmkat City 9 day?' W Corporation". The said notification is produced as Annexure-G. The estabiishment of the Tumkur Mtinicipai Corporation under the provisions of Section Section 503 of the Act has been impug.n_e?d~.::.inifthiésii isvtitv' petition by contending that under the Act has not been4foii'owed_'.a.nd"

notifications itself are defec'ti,:i}'e in Héeiinice, the notification dated in"iotJg'ned in this writ petition.

3. S. statement of writ petition is not maintainabi.e"'"and::'t.hv'ait::ho' relief can be granted to the petitioner_'_'asthe_'p'etiti'o:f_;Ve'rV.has no locus-standi to challenge notificat.ionﬁd_a_ted 25.8.2010 issued under Section 3 » ;'i'e_ad.,Vi/v«i.th.,A:V'Se_ction 503 of the Act. It is stated that the H = :Sta'te"€fi'%:3'=;:_e'rijnn;ient had taken consent of the Cit'; Municipai Cotincii and a resoiution has passed in favour of " es.tabiishment of Municipal Corporation and the petitioner ﬂiisiiiaiso party to the said proceedings and therefore he H cannot now chaiienge the constitution of the Municipai Corporation. it is aiso contended that the notification impugned in this writ petition has been issued in ré the decision of the state government to constitute a municipal corporation has culminated in issuancejot_the notification dated 25.8.2010, which is in accoardanlcerléwidth' law and which does not call for any interferenlce inifthilns W:-'i--.t_ petition, Therefore, respondentlAA'Vl\lo;iV Thais' dismissal of the writ petition. _

4. I have heard iea.rn'ed-I 7.3r.counsel Sri.Jayal<umar.S.Patii Vfjetnivt-i.oner 'Handy learned Additional Advocate_:_ ..~.:.:lvSAAr.i'_;HM.Nataraj for respondent l§io'.Tt:-andtlearned"'eo'ldr;sel_V:V.Sri.M.l\lil<hilesh Rad for the learned counsel 8 ri is «behalf of the petitioner that the State Goli/'er:nrne'ntA"'. Notification dated 25/8/1995 'cdnstitt;.ted._the«V'S'rnaller Urban Area for Tumkur and 'Va.ccorrdi'n.:gigﬂfi._tji.1e Tumkur City Municipal Council was co.rjVstiti;;teci;ijihereafterwards, elections have been held V"»»Aregula,rty and subsequently, by impugned Notification 25/8/2010, the Smaiier Urban Area has been ___i{IOF1S'EitEJted as the Turnkur Municipal Corporation without specifying the larger urban area. Drawing my attention to Article 243(2) of the Constitution of indie read wig Articie Ix? ' figure wouid have been achieved and under the circumstances, such a recommendation was made i<feeping in mind the 2001 census figures. However?~«~~-the:'__'__St:ateg Government did not accept the said recoVrn..m'ein'dation} having regard to the sub~secti1on of wherein, existing municipai area on-lyllean be33i:onvert'ed"'to'*~re a Municipal Corporation, the projected figures which4"hiave"'A % intovconsideration are in total disregard and are only in the realm;_'o'f'eonjei:tures';unidiei?'th.e,:Vfci'rcumstances, the proviso 'negative has not been compliedllllv case. Elaborating his submislsion, that the State Government coulgi..,have'4"taken..'-- in'roVé"'consideratlon only the published fig"u-res?..A'of the 2O'i3Vi"'census, which is the last census which "hVeai_d:_i..since the said figures are in the public dotnaina~an_d}..--therefore', the projected population of Tumkur Municipaii Area based on conjectures could not have been ,Ata.i<ezn into consideration; that such an exercise is in the __r§ealm of assumptions and presumptions and that there is no certainty in the said figures. He therefore, submitted that in the instant case, proviso to subsection (1) of $5 Section 3 of the Act; has not been cornoiied with and therefore the impugned notification may be guashed.~g"'."'--.g

6. Drawing my attention to the notification dated 25/8/2010, ieamed _--s'e'n"iorjv.coo'_nseai_ pointed out that the words "Larger 'm--ea:"

stated in the said notification'§i.ti'iat the'v-rieciara.ti'onfthat--5has r L' to be made by the Governor_ha'e~_to=..be to"epeciAf§I Larger Urban Area and in the""~aibs.e'r1ce§;{.,'of4'th':e.rebeing any such specification ma_o"e,__ the~te"'isf:no"d.eci'aratio'n'and under the circumstanceé; th5e:_n.ot~if:i_cation is not inmterms of the Article V 243--Q rea.d_§Ni.th He therefore, stated that there--.is notwi'ec|'a,ra"ti_on--. of"'Larger Urban Area" in the instant case _h'einc'e:,"""_.»athere is no constitution of the Municihgiwitéogrooration in accordance with law. He that the notification had to be issued in th'e'V..Governor as has been done in the case of thencenatiituétion of the Beiiary Municipal Corporation and 'i].:a'iso._whi'ie constituting the Bruhat Bangaiore Mahanagara whereas, in the instant case; the notification is "--«ir'i'ssued in the name of the Under Secretary of the Deoartrnent of Liiban Deveioprnent Separtrnent and /V ' ~Cofpo'ra--ti:o .,

8. Per centre, learned Atidi. Advocate Generai! appearing for respondent No.1~--State, has taken---,[a preliminary objection to the very filing of the V. by the petitioner in as much as it is conte'n_decl petitioner is a party to the resolutic*§JnilVacc'o..rtii_ng' the conversion of the Tp_nfii<ur4"..i\li'u._nicipa'li'.tyA'"

Corporation; that subsequently";..V:i:i'e has inthe meetings of the Cofm/_rati.b'n'V' has "received remuneration for _.~\:§VaiAéj_.Drneetings and therefore, the" p'eti1t'ioner aifilaiag/in'gié:'p--a--rti_hei:pa'Vted in the said meeting to the resolution and accordinputSa1iet'iVon:?'foi' conitereion of the Municipality into a CVV:'orporati'OVVi_i,'.iA:_ca>n'not~thereafter file this writ petition and g:ha|len"ge_:V the constitution of the Municipal each of the contentions raised by the leatne'Q.,.i§.en'iV'or ggcounsei for the petitioner; learned Addi. it ':ji.lAd'v--o.cate. Generai submitted that when the power has been egteteised under Section 3 of the Act read with Section 503 it "of the Act white issuing the notification, the mere absence of the words "Larger titban Area" cannot make the said netificatien invaiici. The very fact that under the said ﬂ, e mandatory requirement He submitted that the deitihition ciause defining the word "Population"

applicable to Section 3 of the Act in as much"-as,i tn'ut it mandatory that the figures as are'lAasce:ta.i_ned--l.§_n-thyeii est census have to be taken into consideration fo:r.".i,«?1$Cetta'in'i'ngVF, as to whether the ponulation"'o.f:"*t.he tatg_Ve'r~s is atleast 3 lakhs. He suijnj'itted"thVa-ti'inlathée ins'ta'nt"case, the figures of the population Municipai area have been Xfigures available as per the Vsai'd:,3p':"ojection is based on a scientific"bas.is, figures have been taken intro:considVVe:ra:tioi*i..Vfotascertaining Larger Urban Area and the caninvotlleedtolund fault with. it £in_supoo'i't"'of his submission, he has relied upon Apex Court reported in case of State of u.p,g'%-vislizégabbodhan La! Srivastava [AIR 1957 sc:

*-.912] tovtontend that the applicability of the definition of "'~V'ooo_u'Aiation to Section 3 of the Act is net mandatory. :2. He has aiso drawn my attention to the *1 provisions of Sectien 3 "of the Act prior to 1994 amendment? ta contend that under Sectien 3 as it stood 3;/a

-:14]: :-

prior to the said amendment, the section itseif statedélthat popuiation of 2 iakhs as per the East mandatory requirement, but the said rec;ti,iV_ifen*ie.ifit'_has" been deieted under the proviso to S'eCtiVo'nT been placed by way of definition'V..b1y-._insert.i'_£?ii"ofn'sti'i2}"'- section (26-A) to Section 2 of""th:eAct, \é\';hV_ic'h inwplies that the applicability ofthe dre'fin*i'tionj"o.f poou'l'a't'i'on is not mandatory insofar as Section 3-is ;con:c'ei'_ne'd3_ tzcaiii He hasi..':Va1i§d.tstateci. 243-P(g), the definition oi' the said definition is also aoolii'ca_hI§":::it,;)/ V'lVl5opulation" in Article 243- Q(2) of xthe 'Constritti-t'ien'."---.:_ifle"therefore, stated that in order to ascertain" v'\'I-hether the Larger Urban Area of atieas"t"'3 lakhs of population reliance on __.p'i*e_v"i'oii:s4._ce»n'sii_s':figures is not at all necessary. "He further submitted that the definition of the :""v"fGVcFCi 'lPo"puiation" has to be read in the context of the A gjrearnbie of Section 2 of the Act; which states that the eefinition as stated wiil appiy unless the context otherwise requires and in the instant case, in the context of Section 3'5 '>»¢>;2-'.$' Mtmécioai Corporation by his conduct. He has aiso submitted that the writ petition has to be disrn§ssed'"o,n the ground of deiay as wen as on the ground that...th_e'r_ea:'i;s:°o§> merit.

18. Counsel for the inter§<ene_rst~'ihas~_a'i~~§:§5 sotiméitted that the writ petition has to__t5'e...disrh'%-ssed delay and latches and that tAh_eir:etareuyariousioroyifects which are midway and be reversed by hoiding that theV__noti:fica'tEo'n Viirnootgtiettﬁsithis writ petition is éHegal.:__ petitioner having atten_d_e_d Municipai Corporation is not the constitution of the Tu m ku rV"C_i'ty VCo's'p.orati.o'f_;t. ' V'reo"i'y','Viearned senior counsei appearing for reiterated that the Municipai bodies are iiiljust statutory bodies as in View of the AA amet*s,cirhent made to the Constitution, these bodées are in nature of Constitutiohai bodies; that the very constitution of these bodies have to be En accordance with the Constitution as weti as the relevant statute. That there Es ho discretion with the State Goverhmeot or in erg officer of the State Government with regard to the rnarjrrzer in which the irionicipai Bodies have to be constitutedg:'-fi'iir.ere are objective criteria prescribed under Secttieh Act, as weii as the statute. Therefore, the'Vd'ei"%:r1;itiVo'nv'_c§aase"» under Article 243--E (g) of the Cohst'i'tu~t'ion'~as section (26--/3.} of Section'ii.2"'~of the Act_ i'sV"a«:g;ip!.ice~'ioie% Articie 243(2) as weiias Secst.i.oh'v.3 'o.f'the'Act,__A

20. Having the criteria which are mentioried'jA;V:,i1.;1Vdei*_ASection"AA§'i"'ofVw »Act are by way of proviso, is when the said criteria are rrv1v'a§fvv'ofiahwexception that the existing City iriuVnici;V3a'i constituted into a Large Urban Area. as iriunicipai Corporation. It is not that as and popoiativon of a particuiar Municipai Area it.5-urtiaﬁaesu3.Vi_akhs, mandatoriiy or automaticaiiy, it would Ah-a__vev_t.e Ziieiconverted into a Municipal Corporation but the AA san*ie,_.has to be done as a iegisiative act, having regard to

-the various criteria mentioned both under the Constitution as wait as under Section 3 of the Act. Unless the same are strictiy foiiowed, there can be no constitution of the Murzicipai Coreoratior: Err accordance with iaw and this imoiies that there can be no ciiseretiorz vested with the ,.«r:

State Government and when a declaration is not rnade in the manner known to law or in accordance mandate of the Constitution and the statute"; declaration is bad. He has aiso state-d. 'that Vi§.'2A.ah.d 166 of the Constitution are not case since it is not exerci»se~~._pof e><Vec'u.tiv"e power', but"

exercise of legislative._.powe'r";a}_t:~ilie'-»i,specify*ivng..v'Va Smaller Urban Area into a thereafter, constituting a 4 Niunici V' it 'Z689. He of the petitioner in Corporation or according sanctiylonll for of the Municipal Corporation would not""inj:'ply,'i:ha't the same can be constituted de hors redLj'i'r'eh1ents. The investments which have regard to the various projects for Tumkur CM..dVnic_iVpallViiCorporation cannot be considered to be wasteful AA expenditure in as much as the same would have been in case expended for various projects. He aiso stated fthat the date of the notification is 25/8/2010 and the writ petition is fiied in February 2011 and that in the matter of adjudicating upon the exercise of constitutiogal or .w*"':'$' IN) C.) l statutory? such a passage of time cannot be considered to be a case of deiay so as to result in dismissal of th'e_writ petition.

21. In conclusion, he subr_n.itte_d th-at"so::'_if:>n'd as the". constitution of the Tumkor Mli'FilCii§i_)"a§:C:{;lfl3'0li~§"I?Tl'{jVy3~st,,..l§tij_iin accordance with law; the "oe't~i.l;ioneirv- wo.uld',_noitv«-.haVv.e an-,r_* grievance in as muchﬁas heAi_s_l:Vaiso'~i.nLterested§AAthVat the said Corporation must be instant case, it is not in accQr:da__nce:wit'h::'i:al{li,:,_lsi"nder'i:h'e circumstances, he prayed allowed.

totuherival contentions raised by the coonsell on perusal of the material onAtrecorcl}" i::..noti"ced"that by notification issued by the AStaten.,6o~i{¢rnrne'n't"'on 25/8/1995 under the Karnataka jiyionirjealiit'ies:_j.Act, 1964, Turnkur City was declared as a Alvi.tinici~pall'i4t-yin which is at Annexure "A" to the writ petition. AA The Municipality comprised of Tumkur City and 22 V.i,"vil'i.ages surrounding the said City, Thereafter, elections __§were heid regularly and subsequently was heid on 28/9/2807 and the members of the Municipality had a right to continue for a period of five years with eftéet from s/;'?

he date of the first meeting. The provisions of Section 503 of the Act become applicable, in the event Tumkur"»i:ity Corporation is held to be legaliy constitu«tc=djVV~..__asj' Corporation and elections are held and the_fi_r§C'Vwh1ee'til'ngof_ the Corporation is held. It is also i:lna1t_'i~n_.:

iﬁroviso to sub-section (1) of $ecti--o'n'w--3 of.'vti*ieV"Act',{ Tumkur City Municipality haslacclorded its sariction for the constitution of the C:oi<porat.i'o_n resollution dated 2/11/2009, which is produceci.%inneV§{u.}fe__i5~D-1".

23. ,1."i=i§ 5f:_S':.i_:;1at'e:;fﬁnoxgertirnenttook a decision to upgrade. ..l\?iti_n'ic'ipolity»;into a Corporation and on the2._ba--.sis .Voi'V.l::h..e'sa4i"d_:decision, sought for details with regard togtheof population, percentage of _ movegnlivent inV.'r'i~oVnj§:i_ggricultural sector! income generated s4uch__'details and the details were furnished as wherein, the actual population of

--V Turri'i<ur"'V:i}.'iun;icipai as per 2001 census has been given as uh?"<4l"Jp:2;,2:84_{5§V2and the probable increase has been shown up to '3-,!:t2;:OOO; that in respect of S 6 viliages surrounding the "Municipality, the popuiation as per 2001 census was 62,501 and the probaioie increase wouici be 73,408; that the total popuiation of the Municipal Area of Tumkor City E") i\) I and 53 surrounding viiiages woaid be 3,.84,5G1_ basis; on 2/11/2009 based on the census _fi_g,dr-es' _ recommendation was made for surroi_in'd«.in'g S6' xfii-iagVes',_to« be included whereby the, population oftithge' Municipality and the surroun'd..i:n'g viliages'"ii.é}'ouVl'i:im cross 3 lakhs and therefore,would"mm'e.etivthe requirements of Section 3 of the Act. Hoimeiveiiy'?w'he.nll'thegnotification dated 25/1/2010 (AnniexureigA"Ef'jm:'J.wa:Eii.,';'5suecl}; it is noticed that the area c0'nipriswin'g in.._T_uiinkti'r'City'only has been taken 'nto consideriatio'i*::::..,a.ndJhe sairtsimﬁller Urban Area itself as been proposer; to 'ec ared as t e Larger Urban Area.

Therefo--re,.themi'ncl.usio_n*-...o§ 56 surrounding villages as recommended" by'-_tAh--es"EJleputy Commissioner of Tumkur not"---been accepted. Possibly, the said ' recommen;da.tio.n has not been accepted having regard to sci'b4isectio*'n':__V{s1V) of Section 503 of the Act wherein, it is stated that only a Municipal Area for which a City Municipal it Cobb'-ncilll is constituted under the Karnataka Municipalities a£§ct,'A 1964, can be specified by a notification to be Larger uwljrban Area under Section 3 of the Act. Therefore, the area which is under the jurisdiction of Tumkur Municipality has been specified to be the Larger Urban Area under the F J) i-ii":

I of which are specified in Schetiuie "B" and to further specify it to be caiied TUMKUR CITY Corporation having regard tec- The popuiation of the area specified being not iess than iakhs; _ The density of nopuiation in such area--'..beingircnot"ies_s' than three thousand inhabitants to one .sqti'a.re'i<Viiometet ofarea; 'i The revenue generated far iocai.

higher; ._ --

The percentage of _em'p'Foy'ment in«.Vnon~agricuitura| activities beiri'g..V_not less than ﬁfty percent of the total empioyment. * V. _ By-. ,otder"'and"'~iiniithe name of the I " 'iGQVe{n'Gr of' Karnataka ' :1] C.R.RAVINDRA . 'c-'.nder*,Se'cretary to Government " U__r__ban,£Deveiopment Department." it Since: 'ti"i:_eV_'sva.i_:ci*-ncstification is impugned in this writ petition'-»on vai-fioiu._s grounds, it is necessary to answer '"'«._the-':r_:§ai»_i--ciity< A' of """ said notification in the iight of the _'ct:n'_sttirtLitiona'i.__and statutory provisions as weii as rivai co'n__tentiens:iniilthe counsel on both sides. In this regard, it "'._WOUiCf"

necessary to extract Article Z43--Q of the "'--"_Cr3_ns'i7itutien, which reads as foiiows:~ "2.43.Q. Constitution of Municipalities (1) There shaii be constituted in every State-

(a) a Nagar Panchayat {by whatever name caiied) for a transitienai area, % at1mi1ni:ti.:_ratie.n 'from7 such area from tax and non-ta_x' sources in the" v'ear"*i;ri"

the iast preceding census 'iszeing not iess than riiip'ees'~_ R.6.00 Crores per anhtim: o'r3_a 'sum caictiiavted at the ' rate of Rs.2OO per --ca';:z.ita per .annLim-_ w.hi'Ci1e'ver is ' that is to say; an area in transaction from a rurai to an urban area; "

(b) a Municipai Council smaller urban area~;~~-anVd____i' S __ (C) a Municipal Corporation" ' for a larger ur_ba.n'~a.re--aj,' 4 in accor_da»n.c_e _'with'=f; thee' provisionsgof this pairtj" "

Provided that aguvMunicipa'l'ity this'; clause may not be cons'ti.tuted" in such "~u_'ri3a~r."' area or part thereof as.._ the Goverrior may, having regard to, the si2:.e_'of the areawanyd' the municipal services"'a._ein_g pVro'vi.ded'~--Qr proposed to be provided by an g--indus;trl3a|"elstab|_ishment in that area and such' .oth'er:facto'rs_'1.aS he may deem fit, b'y,__pubiic"no1fific'a«tio.n, specify to be an industrial't'awnsh'i--p.a :'(Z,\;1l'l_';l this artijcie,'-*'.a tijavnsitional area", "a sma.l,le'rv..yu'rba,n.._areaf" or....?Ta.»v5larger urban area"

rneansi"'Such 'area the Governor may, having r'ega:rd to'tn'eyplopu«i.at'i--ori 'of the area, the density ofthe popu_lat.i'o.n"the'rei'n, the revenue generated for "iocai adrnin'ist'retion, the percentage of _ --employmei:t Fin non--agricultural activities, the economic"imp_ortance or such other factors as he A many 'deem fit, specify by public notification for th_e«.pu.,rp'oses of this Part."

% _gV_Governor.

25-.~ '_A}--*tiVcle 243-53 of the Constitution is a definition 3-'~.__V"~cAiause'}vﬂtvhich defines a Municipai Area to mean the Vmllteirritloriai area of a Municipaiity as is notified by the government constituted under Article 243~Q. "Population" means the ooouiation as ascertained at the iast ptecéding "Municipality" means an institution of seif- X» 6"

h > OW i census of which the reievant figures have been pubiished. The aforesaid definitions are clause (d); (e) and of Articie 24343 of the Constitution. Intact, the clause begins by stating that the said defin_itiori-..si.s'fo'r IXA of the Constitution and wouidrzhaioipiy'avhiessi otherwise requires.

26. Section 3 of the Karn"at:ai<a Mun~i.cif3a--i-ICorporation Act, 1976; prior to the':a~men_drn_entr._i,e'.'i_priorvVt*o"Vi/6/1994 read as follows: Sections' to the said amendment reiadgas foIii.owgs:--~5 urban area and es_tablishineh_t] of 'Corporation, etc. --- (1) The Gover'noVriismay;j ha\(ing"regaro"'to-- _ i _(a') _ the. iﬁop.tri.at'1on of any area; i (E3) '=.theAde_nsity'of popuiation of such area; *-{(2) - the 'revenue generated for the local A 'administration of such area;

(cl) A"--'th_e___pvercentage of empioymeht in non-

agricuiturai activities in such area; wife"). __ the economic importance of such area; 'V and V such other factors as may be "---- ' prescribed.

seecify by notification such area to be Earger urban area:

erovided that he such area shaii be so specified as a iarger urban area Lihiess:~ {a} such area contains a popuiatieri at not iess than three iakhs;

{t3} the density of popuiatioh in such area is not iess than three thousand inhabitants to one square kiiometer of area; g "7 {C} the revenue generated from such area for the Eocai administration in the year". of the East preceding census is not.'E~eSs.. than rupees six crores per aooun:i_or. Va':':i.V. amount calcutated at the rate e-E__ruoe.e's. -3' two hundred per capita per'~.__ahnurni', whichever is higher; .. « _

(d) the percentage o'F"employrnent :injnorl~.[', ' agrlculturat activ'l=tlesb._is jnot less. than fifty per cent of thetotall"empioy'ment: ~ A Provided further thlat'~t§o such nottﬂcatidnr~shVaF--t be issued except after con'sultli.ng the local _'authority, if any, concerned. -- ' «. '2 (1-A) Any area spectﬁed"~--a_s.iclarger urban area under sub-secti_oh {r.1V's»nali 'o_e,deemed to be a city and a Corporationush-a~ll be_'e.s.tablished for the said city; " * . 1 .

.--{t~v--4Bj§lAI:._'r'Zhe rta'rT'.e of citfshall, where the local1are;3"'hav%ng tw.o,or'V..nfiiore,' local authorities form the_Vclty_,V as deterrn':ned__ by the Governor] . (2)53 -«,_The 'v.C'ot_poratlon shall be a body ' _ ' ~.feorporat_e"by the name "the Corporation of the"c_1t"y of..." and shall have perpetual . .SUCCéS.Sl};)n and common seal with _ powerjsubject to the provisions of this '~._Act,V to acquire, hold and dispose of moperty and to contract and may, by , .4 the said name; sue and be sued:

_ _"~fProvidecl that the "Corporation of City of A 'Ba"£".ga!.Q¥'.€"" shall he cailed the "Bruhat Bangalore Mali-anaigara PalEl<e"1."'

27. In this context, it wouid be useful to refer to 'relevant portion of Section 503 of the Karnataka Municipal VCorporation Act, which reads as fOilOWS:-

"5G3.f)eciaration of [city mtmicipai area as a iarger urban area] under this ACtr {1} Subject to the provtsions of Section 3,, the Governor e I' 2, {F} is} <ii ml ' I "i.'shallgs'o__f'ar 'as may be practicable, be (ii instituted by or municipal council or any officer of the {K} and untii it is superseded by any appointment, notification, notice, tax", order, scheme, iicence, or imposed under this Act;

ali budget estimates, assessmeifit'iists-,«.__" ' valuation or measurements inade-..o'r "

the .~ --i<a'rnyata.i'<a..

Municipalities Act, "@964 Timmeid..iate'ly._f_ authenticated under before the said date Shialif,be.gdee'nn,ed..to have been made o'i'7au--.t_henticate'd..u:ide.iu,,,, this Act; or * all debts and o'bi..i.gation~s incurred contracts made by or o'ri._beha-if of the city municipal ",co"..i_VriCil 'irnmedivately beforethe said date and subsisting on the sa'-i«dfdat'a si'_iall"'oév»ldee_med to have been incurred' ;an_dfmade by the __Corporation--.. in ._ e,<er'ci'se the powers , co_nfeij'red on :t.4by.['oi: underthe Act; }a.ii proceedings "pend'in'g---prior to the said 'declaration--w._befo're the city municipal '..»councily Vsjhali'*v.ii'be"»5 continued by the *'$orpo.ratiQ'n;' I alt appeals pending before any authority 'dis'pVosedi"-of as if the said area had been "'--inc'lii'ded"*--.in the Corporation when they " ywere--.filed;

"gall prosecutions instituted by or on "'oe.h.alr' of the city municipal councii and all suits or other legai against proceedings the city city municipai council pending at the said date shall be continued by or against the Corporation as if such area had been included in the Corporation when such prosecutions, suits or proceedings were instituted;

aii officers and servants in the empioy of the city municipai councii immediateiy before the said date shaii become officers and servants of the Corporation under this Act and shali, and untii other provision is made in accordance with the provisions of this Act; receive saiaries and aiiowances and we"?

permission-.9 ruie, bi,/e--iaw or form, made or ESSt.i€d__ U.) the' I be subject tn the conditions of service to which they were entitied irrirnediateiy before such date: "

Provided that it shall be competent to Corporation. subject to the previous sanctionidf'the---.__" i.~ Government, to discentinue the services".._o"f va.ny* "

csfficer or servant who, in its dpinie~n--,...._"i'sx 'noti. necessary or suitable for the .e'edt:.irem'ents "of'th'ev.[', service under the Corporation. after giving" yserv'a.rii:_y c such notice as is required to be given the terms oi _ his employment and ever};_officer-Aor=.servari--t. whose "

services are dispensed with "shall be entitled to._Vsec.h ieave, pension provident fund» and ciratuity as he would have been entitled tdta-i<e or recei\re_ on being invalidated out of *'s~e_rvicei,l' as if the city n*i'un'i"cipal council in the emp.l_o.y_o'f_ v\:.5_iiiich=fhe 'was, had not ceased to exist. ' 5' ' v [(4) A €orp{_jratiore. s.hai.l,"--be 'dt.it'y constituted for the larger" urban area under Act within a period,df"s_ix~--..rri7:>nths_._frbmfthe date of declaration referred tr: in su'b~se'<:i':virain"(.1*) and from the date of first.._me'etin'g"1ef_the..Corpdra.tiQn.»~as so constituted the body ei><e5i.'cisiri'g' t_he._'powers and performing the duties ofyth'e.'C3orporatiovn_ shaii stand dissolved. 3(5) The p'r.op.erties, rights and liabilities of the city municiipal coui*ici'l'~.:}f a municipal area declared as ;larger urban area under sub--section (1) shall vest in C0_rporatiovn...ef the said larger urban area with effect from the date of such declarationj"

."W28.iii.'-".fi3y?Vvirtue of the 74"' amendment to the '.VConstituVtienV4'w.e.f. 1/6/1993 Chapter I)<--A has been it ifiniselrted "wherein the Constitutien of the Municipalities has bleenliendnciated in Article 243-Q of the Constitution. In '".wsub~ciause {ft} of Article 243~Q,. it is stated that various types at iiflunicipai bodies have been stated as Nagar Panchayat. a trarisitienai area er an area in transition gem M'???

'J i a rurai area to an urban area, Municipai Councéi for Smaiier Urban Area and a Municipal Corporation for a Larger Urban Area.

29. Proviso to sub--ciause (1); .o.f,__/--Xrticie"24§'§.Q"et'ates_V ii"

that a Municipality under this:'=.«cia_'use 'iir'na;{:"

constituted in such urban airea or part ~ithe = L' Governor may, having regard:p_toV:'th_e~v.size.'ofthearea and the municipal services proposed to be Drovided by that area and such other fit, by pubiic notificati_.o_nV,_ §ppeci;i&e_d_to_:'beV'an vi._ndy<3tria| township. 3o;ktvsobe§i;éifosér{{2»>v'wor Articie 243~Q, which is relevant for" of this case, states that the having r'egar"d to the population of the area, the i.;iensVi:3'::o.f:é%th'er.:pjopuiation therein, the revenue generated for iocai,.acirr:inistration, the percentage of employment in V'-».non~agr,i_cuiturai activities, the economic importance or jV"'V'suVch::I;3ther factors as he may deem fit, specify by pubiic _Mn_otification for the purposes of this Part. Therefore, the Governor of the State is empowered to specify by a notification having regard to the criteria enumerated, a

0.) (JM) l Larger Urban Area which would be a Municipal Corporation.

One of the criteria mentioned in sub-clause (2) Es',":.§é$ith regard to the population ef the area and other criteria ls the density of populatlo,~.,V'_L"-._jrhel.:'term'"T "population" has been defined in to mean the "population" as aseertainedlat the.vl"as.t"cens1us,l of which the relevant figures haliiesilbreen pVob_ll'&si:--ed..d2E

31. In terms of C.o'n,st§--.tutlo'nal Amendment Act, the Act has also 'been arn'e'nde:dV.an.'d«.SeCtéon" 3 has been so amended to 'p1ar_,_.Wl..th 243--Q. of Section 3 of the Act states that the'Gov{Zerne.rlA"'rhaving regard to the factors stated therein" e~m..pon::ered to specify by notification such ' V"are5~-wto be a._LargeVr"'"Uhrban Area. However, before such ""p_o'wjéerl--c,a'n._Jt;err,.e§§.:ercised by the Governor, the following criteria are mentioned tn clauses (a) to (d) of the TV-w__Vp.rovEso"ha§ze to be complied with, namely, H such area contains a population 92' not less than three iakhs ([2) the density of population in such area is net less than three thousand inhabitants to one square {diameter of are ~: 34 ;-

(c) the revenue generated from such area' Zocaf administration in the yearelV_"t;fV l._iels5g«f preceding census is not"liess'_ than Crores per annum er the rate of rupees "two hono'r'eo' p'erft:a;3fta_:l§pelrr annum; whichever ft"/'gher; ~. A

(d) the percentage /'o'r'* 'fen5;:>/._oyme';1't* "in non-- agricultural 'activities -less than fifty percent of zfhe--vto:tai en3piey'_n*{en':"§ Eats}. The seeettnclltlt.;:;iro'vls.o'further states that any such notificaoti..{p.nto..tl5e:'1:1~s:suedﬂtndei*--.suVb§section (1) of Section 3 of the act; l::a.nVlaej-.orll!.y4"aite--r'consulting the local authority i.e., the Mu.nilcE,pal'ity.?4'*eo"ne_erned. Sub~section (1--A) and (1- B) stiates that a"ny_arefc: specified as larger urban area shall be a city and a Corporation shall be l.estah'lis.h'erj:..for"the said city The name of the city shall, g where. t'he.'local area having two or more local authorities fro'rn_.éthle city, be as determined by the Governor. it mé"Z€l:>3¢ Subsection (2) states that the Corporation shall be at body corporate by the name the Corporation of the City and shail have perpetual succession and commen seal with power; subject to the provisions of this ACE; to acquire hold éae and dispose of property and to contract and may, by the said name, sue and be sued:

33. Before answering the contentions r_aised' _ petitioner, it would be necessary to..an_swer'the"-o_rel'irnVi"nai*§,{ "' objections which have been raisedlby i§:_he're'soon_den'tsio'--wiith:

regard to the maintainability'of"t.he wry: rnuch as the focus standi of theVAg_o:eititionuer t§«.i¢nalViVenge the impugned notificatlonyhasbeen In this regard, it would be necessary to Vo.e't'itloner, who was a sitting has no doubt _as.se_n'tefd of the Municipality to a Munlci'pai*- 'thereafter, he has attended various nlieetingls of'Vt'h'e:Clo'r.poration as a corporater. It is onV«t:hati'*basis"'t.h:avt____the respondents contended that the ' oeti,tio.n_ve«r no right to challenge the constitution of the Hi»/lo'nicioailfijogrooration and therefore, he has no locus stand?' the this writ petition;

34. At this stage; it would be of reievance to note .. ,,_._that any act of the State Government or any notification issued for that matter is deemed to be iegal and in accordance with iaw unless a competent Court of law 5;

i M.) C':

I strikes it down or quashes it. Moreover! the mere tatitthat the petitioner has taken part in the various the Corporation cannot impiy that he has aCqg'i"€L.é.Ce:q"~§ﬁ formation of the Municipal Corpoi;ation"a_nd_ has:_'th_e.tef'oVreV"« estopped from challenging the impogned. noti>fi';<:ati»on.'V petitioner cannot contend tha't--it.g}.c:i>1--e TuVrn'i<.ti'r'ii.Cji't3iéV"iiiiVonicipai Council cannot be forrnedgat aiiminh»Vi.ajsVnii;Ach asit isa poiicy decision of the State aiso been a party to the r_ei3joiiitior;iAVVa'ccedir§:g:'t_o_Vgthelivormation of the Corporation-."' imply that the Detitione--r----~«CéA'f'"ih'o:t':::fi.:I&ue'§?ioVn it t~he..<émanner in which the corporatior-1 In other words, though the petitiohert canVnot'ieXp;ress any grievance with regard to the..i3;constitutiV.o'ii.»_of__.the Corporation as such, can .nev,ertheiAeVs--s::'izhailenge the manner in which it has been as if the petitioner is able to establish _ that"----the._':Cor':poration is not estabiished in accordance with :_."Eaw,_. then in that case; petitioner cannot be heid to be . cieo-aired from doing so. Hence there being no focus stand! Wgfg th€ Betitioner to fiie this writ petition or the fact that he i' is estopped from doing so, cannot be accepted. Therefore; the contention with tegaro to the petitioner lacking focus 5 I VJ "ml starieli to file this petitioner or that he is estoppedﬁriom fiiing the same is rejected

35. The other contention whiy;h_ has'bee'nfreVis:eVtl.Vbe "

the respondents is with regard to dielayieih' iiirei.rrgr.of petition and therefore; it haswiiaeen con.tehded'vthat...tVhe.13/vrvilt petition has to be dismissed erit.'r_wV:\g\:zi':thoVi;it going into the merits of it In my considered view,_the would not come in the of the petitioner on merits oiuestiloln touching upon the constit:£itlion'_AOtto.' ishielevated to the status of a constituVt'io_nalV'*be considered in accordance with the Con'sti_tut§o'n as well as the statute and the filing of 'xi"=the"':th}rit.A'-rpetitpion elft'e"r"Va few months after the issuance of "i';hp'vu:gr€edo::"notification cannot be dismissed on the or latches. If the petitioner is successful fin mekihg out the case whereby, the very constitution of A Cftheﬁiorporatioh is unconstitutional and ultra vires the Act; ' theenlthis Court is not only empowered but is also under a duty to consider such constitutional question under Article 226 of the Constitution despite the writ petition therefore safe,' being ﬂied five mts, thereafter. Therefere, en the cseestien of detay, the writ petition cannot be dEsmissed.__ -VV: "'ﬂ"~e..V"'A 3S(a} In this context; reiiance can be pEace.d,'§e.VVéejCisio:% the Apex Court in the case of and Another v. State ofAn_dhré*._F5radesh"«%- [AIR 1934 sc 121], where'iL'r":;_V"vin fche" cofjcext Veielayed challenge to a Iegisla*:i_§5':n, Ehat "mere lapse of time dpes noAtV_lehAd to a provision which is run in favour of /egis/a tior} . ,_ V ,;':'e'it'« eahhot gain legaf strength from wyers to perceive and set up its" said case, the constitutional vaiigﬁtyf of' ti*..e'Ai'xrh1'dh.Ea ﬁradesh Buiidings [Lease, Rent and AEii'%e.tieij} "Central 1960, was chatienged after 23 years. V'¥TheAT's.=}§ne a'.p.p1E~ies by way of anaéogy to the present case aisicz, AA Having cieared the preiiminary objections, it is 'erieeessary to consider at this stage, the nature of the functions exerdsed by the Governer in the issuance sf the rsetificatians since any answer to the said question wouiﬁ £3"

/\'t/\ determine the answers to be given to the ce'nvte{nt'i'ci,ns raised by the petitioner in this writ petition. 372 On a reading of Constitution read with Section 3 a's.rtiell asSe.ctio'n the Act, it is noticed that o'n:t'ite basis 'oi?TcertaivncriteriaV enumerated in Article.2.43jQ"'a:§':_:':ue*i»lri_as ﬁS'ei:--tio.ri§ 3 of the Act, the Governor ofutiie'Stateiivisﬁeyninowered to make a declaration tha't,_ an:yV":'i"'i%rea is to be constituteda»s<_'a'::.:ﬂl;é7irgver said deciaration is infact n_ot téradministrative act but esserittiallyi of the Governor. Therefore, havingi'regard2tot',/A'thégriature of functions which the Go\_;'ern_or plerforrnts viihile making such a declaration is the oféitmhieing legisiative in character will also In other words, though in the instant case, notification is issued under Section 3 of the Act, " a statutory instrument nevertheiess the said Al.d:e'c'i_aration is not purely an executive or administrative act that the Governor but it is of a legislative character and therefore; aii the characters of a iegisiative act would have to aooiy to such a deciatation. Therefore, the notification ea.

the rates ef naturai justice, because the ruies of e'e_f:urai justice do net run in the sphere of legislation,_p"%EVff:-eke'ezf defegated.

39(2)) In the Case of State of Pgzﬁjab. V and others (AIR 2002 sc afte'r., referr§'e:g..1 '§e._ various decision, the Apex CL;--s.;:_iﬁ:..V_heid i:hus:;

"The principles oVf-«lee?-_theLt enﬁerge from the eforeVs'a.,}E:' __- (1) where provisions_Qf'e__sfeiete-"'pfo*Q:fde for the fegi5i;efi§'e aiictiyigti./; of a !egis!a'tfx<e _ 0;-f" ,r:;}Qn71JIg/ation of ge(7er*e{ {lmiev dz" declaration Gevernment that p/Vae5e«.ei'v4ereeV...sha/I be part of a Gre'm4_VSabi7_e4VVarijfon issue of such a "o'ec/arafieeeu V' certain other statutory bfovisiens eehée into an actin forthwith _ {jrevfde for certain consequences; ' }'«-".'1g'.-fiiefe the power to be exercised by tee Iﬁevernment under previsions of e .E;.z?.§£'ute does not concern with V " the interest of en individua! and it re!ai"es ﬁe pubiie: ﬁn genera er Cencems with e general direction of e genera! character and not directed against an individue! er ie 3 paréiculer sifuetien ane {3} lay down future CGLIFSS sf ectiens, {be same is ﬂ"

din ix 7 i generaiiy heia' to be iegisiative in character. "'

40. At this stage, it wouid be reievant though Articie 243~Q of the Constitution <:i§Vege"hQt:.Ag'iv4eiariia specific details of the criteria meif:itiorietj«iVii'e__s'iib<§:ia;.;ee' in proviso to sub-section (;i;)_to Seetiien 3 t'h'e"Act,A"the'iag detaiis are mentioned in ae are specified either t'h'e..figtiresVAVvor having regard to the basis -Savviici-i.i'f:ig'eres have to be arrived at. his power under »i:he.'i>».',A:ct.':tit/vjigiélé'constituting a Larger UrbariHeireat:,5'hae'.:E:'3.tVe deteirrhine as to whether the criteria'*ri*iehtioh.e'ti:.i:i'hieuihiﬁiause (2) of Articie 243~Q of the Coristitiitiori ._as'vv'eil."-asiiithe proviso to sub--sectioh (1) of cSetctioih* 3"U,ef the iiii have been compieted. In that an administrative decisieri which the <3e.ver_n-er_:haS to take. Once the same is taken, then a ggdeciaratioh is made as per sub--section (1) of Section 3 of

-,.VVth.e..3Aet aha the said deciaratiori is iegisiative in character. _..§i'herefere, nature of the power exercised by the Governor under Sectieri 3 of the Act is composite in nature in as 4: vii} :~» much as it is an administrative power which is iegisiathze in character.

41. The contention of the Adah that Article 166 read with 154 theCo'ast4ituti4o--n'~-ﬁietigit'; appiy in the instant case isof-._no rei.e\ranc:e1_»'i'n*}riei.i~: c}'r""ti':e"'i, action initiated under Section'vi3-of the ect,é_VV:iis':hei'ij to be of a iegisiative nature. '

42. Having raised in this writ awnsinlered. One of the contesi'i'ti'o'ns: ~'by"th'eV'iearne--d'}senior counsel appearing for the instant case when the deciaration, is ma'de'«...~in Annexure "F", there is no Si5§tif;icVati,pn of"La--.rg.er Urban Area in as much as Schedule 'B' which are appended to the said .'no'tii'ficaéti'o?ri_tomprise of Tumkur City and 22 viiiages surrotmdivng Tumkur City which originaiiy was part of A .fi;ij'i~ni<ur City Municipaiity and the very same areas have to the constituted as a City Corporation, provided there is a definite intention to specify and deciare that the said areas wouid constitute a Larger Urban Area. In the absence of such a deeiaratien, it is contended that the notification issued is not in terms of Section 3 of the Act;

43. The answer given by the Add'! Advocate i3-enerai in this regard is that when power has been exercise'd:.ft:--nd.er Section 3 read with Section 503 of the Act, that the purpose of issuing the""'said noti:fica,r'i_o¢n.,'.iis 'tot specify and declare the Larger even in the absence of such'nro*~:ds being' foiuvnd'-:i:n"'tiie said" ' notification, the validvitggof it..c'anr.n:ot'VVbezimodg'ned':

44. The rivai to be answered in the made in the impugned' in nature and therefore, the and clear. But on a readiriﬂ. tori' the fact that the areas com_prised'~..u'nder._ Turniiur Municipai Councii has been as'"a~-----Larger Urban Area does not become ' atLa:i%. It only states that the areas which have been speeifiiied in scheduie "A" and "B" constituted as Tum~!<_ni: City Municipai Council would now be part of .V'i't}if;rii<ur Municipai Corporation. The intention of issuing 'such a notification is not to constitute the Corporation which in any case is a statutory consequence but the intention must be to declare that the area is constituted as a "Larger Urban Area", The said decéaration of a Larger ft}, 0 er' urban area is a condition precedent for the establishment of a Municioai Corporation. In the absence of the words f"LaTrger Urban Area", in the notification, it cannot be het«d._i4hat*4the':'7e is a deciaration in terms of sub-se<:tion (1) of Act.

45. In this context, reference tzoold made notification dated 28/9/2004"vﬂssued."ir:...the the' Governor wherein, areas wh.éC'n Vgerue-»e.'specifi'e'd in the said notification were held to 'dconstiﬁite a'La'rge:i Urban Area and the said area.y§a--s "ass-.__tl1veyC'ity Corporation of Bellary.

-------- "<::,_Go--t2$5.!zrvA%EA!.7i.Ci= KARNATAKA w.5a._uD::*128"%'»'fr .. ' ifarnataka Government Secretariat, Muitistoried Buiiding, Bangafore, Dated: 2809,2004 NO TIFICA new _ % r~.14/herettttthe draft of the Notiﬁcation No.UDD 128 3 T. dated 12.11.2002 specffying the smaller urban City Mtznicipal area of Beiiary specified in Son'etluie--A and Scheduie~B as a Iarger {urban area to x cafied City Corporation of Beﬂary was pubiished in exercise of powers conferred by Section 503 and read with Section 3 of the Karnataka Municipaf Corporation Act, 1976 (Karnataka Act No.14 of 19??) in part~I\/' of the Karnataka Gazette extraordfnary dated 2231,2802, inviting objections from the persons Kikeiy g"

Seu£'h:(5) Andre! vi/iage (7) Paéhra Budihaz' vii/age (8) Part of Pathra euqggaai w.Izag*e- » Li; A (9) Part of Bel/ary v;'f;age,'J'rzaia;<af;j2dé"wizégei J T (10) Entire Mundrig! v/'ﬁ'a_cjeV_ A West: (11; Ha//acfaiwg Vi//age V (1.2) Be//ary x_{}'i?age.._» .' (13) }}§_\'ir'.€0u/_iam_ North: _j('1_4) iséklaqg gr;/egg ~ ' V _ vBhe'\kiV'village

5) p;;;;za;se;;ary vi!/age V " '('Baethri'\_/eefammaha/Ii vi//age) . Kollegai vi//age '.CHE£>ﬁ'I.E-B _Vi\;':)ri;'2.v--.~ *-.%f * * * * ' *9 * * * * * «P/555:3- >s< >4< >>< >:< wk >s< After the above extension, the area limits of V' -zﬁeflary City Municipai Corgoratfon wiif be 20,249.60 acres (81.95 sq. kms.) 83/ order and in the name of the Governor cf Karnetaka 50:?-

Uhder Secretary to Govemmezzé, when Beyefqemeni Deeerémené.

9%/ea Z1t§{afj{ A reading of the said notification dated makes it aoparent that the intention was toHco'nstittite _ V' areas specified in the scheduie:'iaAobended notification as a Larger Urban Area.1'-_V_Theref_nr'e.! absence of the said words,'--v..§'t"'~..cannV.ot..be i_ieiV'oift'ha't a it declaration has been ,---made,i-"onderi"-»sub~se'ction'4 (1) of Section 3 of the Act. "i"he_"contentio"n-tot:the petitioner in this regard is thus =i'aiid;:'a'n:ci' V'

46. ii'.he--iﬁ__next.iiicontentionwhich has been raised is with notification dated 25/8/2010 not being issuedV:b§f_ijV~the--._:Goiz~ernor in his own name but it has been issued in'V-the name of the Governor of the State by the Under Secretary to the Government. ' 'Oivriiberusai of the record, it is noticed that the said"'Vinotitic'a:_tion has been issued in the name of the

--V Gov'e';'no'-t_V "bat the actuai issuance being under the 'AV"ﬂ--.si'g;ciature and seai of the Under Secretary of the Eiieoattment of Urban Beveiopment. In my considered "view, the actuai issuance of the notification in the name of V the Governor by the Under Secretary wouid not make it ineaiid. intact, the issuance of the notification is a 55:» ministerial act/function but the deciaratéon to be made is a Eegisiative function; when once a prior determinationhas been made and on the basis of the said deter~m4'i_na_tio'n;' action is taken by issuance of a notification i.n_tiie 'name or' i the Governor by any other authority the said notification is énvaiid, In the-instant c,a7se.,v"ti«'ie 'said ' notification is issued in the of theGotirernowrmafter obtaining the orders toifdo trom the records. Therefore, :§\i;ﬁ€c_'.i;-Jetitioner that the issuance of Secretary to the Development is invalid rej'e'cf,éd.

48, other contention to be consititevreci nan'dev!.§{,VV__t_he fact that the criteria stated in the prox/i_so.,to«.suh'esection (1) of Section 3 of the Act have not been'co'rnti_'iLiede::"with in the instant case in as much as

--V popoiation hot the Tumkur Municipality was iess than 3 div"H§,aiki1is._5A per the ascertained figures in the preceding

- cenisois which have been pubiished nameiy "ZOO: Census"

and aiso the fact that the density of popuiation is aiso not considered in terms of the "Z001 Census" and hence, the yffw notification constituting the Municipal Coroorationu'is"ii»n3;tajiiii._.f' _ is the contention of the tounsei for the petiti--oi'ie«tfL~.. V ' it

49. In this context, it was SfitibVi"T'i'i<?T.i§$Cl' ti}atV't't_ie:wordi"--~g "population" in Clauses "a" and "b"a'ofi'th"e pro"a<lso.V be interpreted in terms of th€r't't_§Effiﬁl.fiOR '%i:po.'§;i'iatijon'' '' under subsection (26--A}. of S.e'c--ti.o_n 2:-.of theerztahd that from the records, it is""bo.rne'r_otiVtv population of Tumkur Municipality i.e., the last Census was ;iess_.'tha.n la'l<h's--.'-»anVr:i therefore, the declaration n1ad'"e'_g.i.'n"the illegal. In reply to the said :"l'e.ai'ned"_""Addl. Advocate General submitted that of population being not less than 3 lakhsris 'a requirement but the fact that

-'Vthe._'sa.id;_..upopolation~----h--as to be ascertained in terms of the last"eegn'susl,;'reievant figures of which have been pubiished isnoti a irriandatory requirement. In other words, the 'tontelrition alas that the definition of popuiation as given ilgindletpgsulbesection (26-A) of Section 2 of the Act is not aiippilieable to Section 3 of the Act.

59. Before answering this contention! it wotiio' be of reievance to note that the word "population" interafia in ﬁr Section ? of the Act dealing with constitution of the Corporation and more particuiariy with regard.) to reservation for SC and ST.

51. Section 3 mentions the».word"'V"'o'o;§.oi ationi' in clause (a) and (b) of sub~section (1) ?}jsf~iais--o~.i_n and (b) of the proviso to sotésection off») the Act. Therefore, both in t)h.e-2:'rnain_(('section,_as_.t§veIl as in the proviso, the wortdift.poouieti.on"«oioitmentioned. The criteria enumer_§3te_d in"su'b «.of»'Sﬁection 3 of the Act are mentioned in sub----

ciauseV_(2.)V "'i7hiieV_o§roviso to sub--section (1) of Sec.tio*n' the particuiar figures which he§Je_4.te.(bVé complied with before issuing a noitific'ation %oa=.a_i+_?toer Urban Area.

-- -T'rr.er'eforei both in the main section as weii as in t'he'4'VVoto>.ti--so--",.'tithe word "popuiation'"' is mentioned. The criteriafnentioned in subsection (1) of Section 3 of the ("are the very same criteria which are mentioned in sub~ ciiause (2) of Articie 243-Q, The proviso to subsection (1) to Section 3 of the Act however prescribes the specific figures which have to be rnanciatortiy complied with before %, issuing the notification for a Larger Urban Area. in this context, it is alse of reievance to note that Section '3p'i3«irioi' to 1994 amendment aiso referred to "population"'*-not.._t§elinVg~~. less than 2 Acres at the last preceding CE3fiSii.S'v_A4?§SVV the l determinative factor and has },')t'i§3 '4o'f-ii conditions for declaring any; local area as sVce3iistituti'i3g"'ia Corporation. The same has hoi'w:eve_r be'en'A_VVde'iete:d by the 1994 amendment andiiin-steaild, "Poptilat:ion" has been defined in the defi_ni_tio_n lc_l_'ai:ise"~bi,/insertion of Clause 26-A to Section' the A:::t';':

_i't..is on----be_h'alf of the State that the fact that the main section has been new inco'i:por'ated__tin" definition clause makes a diffeiience in 'a's-V.m__qch as deietion of the criterion of »populati_or.': a_s"'vd_etermined in the last preceding census in the.'-maVi.n' and by placing it in the definitien ciause 'V wou2l"d..imply"that the said definition is not appiicabie as it is 'igniotiiinandatory and that the population figures that have to

-- taken into consideration under the proviso need not be iii terms of the ascertained figures of the preceding 5, C€E"iSi..iSt

54. The decision of the Apex Court, referred to supra has been cited in support of the submission tha't»ione has to differentiate between a mandatory requi..renjen_t a directory requirement and that in the said definition of popuiation is not to the present case. In this <:onte';><t, itﬁ§<v.oi:id 5:e.'"oi"'g reievance to note that the d'e'i'i.Tn_"ition of both under the Constitution'-as .i'i:nr:ier Act is an exclusive or exhausti'ye:"toe.f'i_Vnitio-net.'ir§£hic.!ri means only population as" ai§eé'rtai:neo5; in t'he:V»i'ast..__p.receding census of which, reiéx{ant"'ifVigu.resshave' 'bve'en"»§pijblished and therefore, the fig'Vures"w~h§_ch be the basis for ascertaining as to whetherthe'!\{i_.unjViciip'a..i:i:ty. has crossed 3 lakhs population has Ate, be a4scerta.ii1ed'-only in terms of the census figures.

"'-iNo"i'rcioL:»-bt, the definition ciause states that the definition of i._.";popVuia:tign""fwiouid be appiicabie "uniess the conditions woziid o~t~h_ejr.wise require" and there are instances where the devfoinition ciause may be made appiicabie to certain x"'."s'e.<:ti:ons of an enactment but the same may not be Waripplieabie to certain other sections. The appiicabiiity of the definition wouid therefore depend upon the context of the eection of an enactment. if the appiicabiiity of the ff' l U':

til» definition clause to a section wouid feed to an absurdity, then in such a case the definition clause wouici...Vnot7.be applicable. However this is only by way of rather than as a norm. However; in the inst'anti:<:ase, virhaat '* is noticed is that the word "popula:t,1ionf-5islnet .oinl"y the subsection (1) of Sectieh-.__3 butgis" We proviso to sub-section (1). =:egaré'to_:t:heVVVfi'act that the word "popuiation" issniotpgI_rily{--_'tot;~.g3¢ii:'risub--clause (1) of Section 3 as welias be construed that the to the proviso to sub-section? IV'i:'ift!'C'E, Oil 8 COHSPGCTUS readingiof_Vs_ub;'seCt:ron '(:1')"'-.io'f.S_ection 3 and the proviso, it mandates that the of a Municipal area should not less th-a'n'"3" iakhs and the said figure has to be latieteitnwihled in terms of the ascertained population in Ai:he«."_pre'eee.ingfj'Census, the relevant figures of which are puhi'-i4she§i'.'Therefore, the basis to determine the ii.""'-..VVV'i:;opiulati'e--n is not oniy based on the figures ascertained in ,"th_e'p--receding census but also the fact that the said figures .are published, intact; a reference to clause (c) of the "(proviso would also make it clear that the revenue generated frem such area for the ieeai acirninistration in 2:

;/"/:7r l C Ii tn the year of the iast preceding census is taken as a basis in as much as it shoeid not be fess than 6 Crores ptZ*'tV.'c}!":i'i"iVt,iViT] or an amount caicuiated at the rate of Rs. H per annum whichever higher: Therr'e«fo«re,7_ byd§::erisiVderin'igv--.' the revenue generated by the mu.'f:iVcit§'ali"larea* for_t."«)e' administration also the figures.,:o'f~.the iast preo'edVi''av'§j'''Census '' have to be taken into c;o.nsideVra~tiVon--. 'V'Tth.e taﬁCt'~t.hai:j there is a categorical reference' census in clause (C) of t,l'ii?i:is:<0vi$:t5V' Clear that the statute the basis for ascertavini-ngA'VAt'h:e t?aifi.ou'a.V>C--ti'ter'iamentioned in the proviso. Under the applicability of the definition of "popuiat4i_onf' 3 being directive and not mahdjiatory Vcaninoti_b_e_accepted. That apart; no material iiaS'»bee.h'pila4eed.__to demonstrate as to how the applicability of'thedefihfitjtio'hlVelause to Section 3 of the Act would make [the su;e{:t'i'eVn.Vabsurd or lead to any anomalous result. The ii.f8;5§:5liE'Cdabill'§ty of the definition clause cannot be on the

-- t5;fVl':i§F'1"iHS and fancies of any authority, which is determining criteria tinder Section 3 of the Act. The fact that "popuiatiee" is a defined in a particuiar manner and based an a referehee ta a eartiealat eerieei wouid 0i"E§'}i mean that e yer »~: 56 :' population has to ascertained with certainty.....A4fifhVer"efo.re,lit -«.. cannot be oh the basis of the fig't;res.,fo{t:ie'h> or which are determined Vhy__ way"L_oi' asst2'n7roti4ons:';and_°; conjectures by persons entrus'teel_V"vv'»ri_th the r'esVpon'sibility of making available the Vilxvhich are enumerated in Section A V

55. On' which have been made it is seen that the populagtiohlv per 2001 census is stated is the projected population i.e., A7.4,6794"'too_:'rnalr:eAthevtotal population of 3,23,608 and ~'"~..a.£N5:.§éio."rrprbjectedé"population is of the year 2009, From t.th'is_.,'it l§Veeiohnes:'_ielear that 30% of the projected population is so as to comply with the proviso to Section 3 the However; the State Government is also j""r;o~n,soi'ous of the fact that the delimitation of constituencies .i:.'_pw_ould have to be maintained in respect of the census figures of 2001.

55; In fact; in reply to a Communication addressed by the Eeeretary, Revenue Department and State Census Nodai Gffieer, Government of Karnataka; through gthe tit"

¢,,»«e:'"'« i an l Ministry of Heme Affairs, Gevemment of indie, ih-.>jthe context of Census ef tedia~2Ci11 Classification], by ietter dated 2e/6/2o1o vihieijjmiﬁtrig Home Affairs has stated that thev'Ji?l>uihici.pel l-i:'eiVt's._h.e've to remain under a Larger Urban, Area 'c3FiCi--._I'iO changes ce.h"*be'--.. effected til! the 2011 census e"iire:eittere:ii".._V_

57. In the 'Vé;§,tV_hveds.Got«ti"PlAeader has also filed a merho projection of population, iheehitak'ehV'i'hto.._.c:ehsideration for the purpose of; of Section 3 of the has produced the statistilts_is'sued.V.Vl5i;.i:Vtrhe' of Economic and Statistics, based, gr: rﬁvathemeticevl formula. The said projection is aVisei:.b3af'sedl'i.o_n thievlllcehsus figures of 2001. Hewever, the segirii'pv.r:oj.ei:tVeclv'figures are not published as census figures ai"i*Cl__ wVh~i<:h.i'.VaAre not in the public domain, The projected figures...:do not comply with the requirement of the

-..V}:iefi.hitien ef population in section 2 of the Act. The said V. figures has been considered for the purpose of determining as to whether the Smaller Urban Area copid be cenverted into a Larger Urban .3-treat The said exercise has been cl rze ea/i (fl CO l by the State Gevernment in order to comply with the requirement of 3 iakhs population as envisaged in forevtso to sub-section (1) of Section 3 but in my view:.~t~h'e«'Vis'ain5ie:';.s not in accordance with what is prescribedin--...st,i:E:}'=isect§c:='rn_éV7 (26-A) of Section 2 of the Act. casie that the applicability of the;definiti--on=.to Seciigien "3 Act would lead to any absurd'1"G!;_lanomal'G.tJ§§' said definition would be nian.sc_:latijri'l':y'VA llvtilisvvlreiterated that the a section in an enactment is'*'oiit.y{1'whe_n lzVOUld result in an anomalous:_sit.tJ'a'tiV.o:i'e..r anomalous situation has instant case, the only conclLiVs*i«o'n'- definition of "population" is mand_atorllj/' aipplicaolie Section 3 of the Act, Therefore, exerxcisewoeing made by the State Govt. to have of the population based on the last census; it is in total disregard of what is Apresc'r'.i,t§ed under sui3--section (26--A) of Section 2 of the Therefore, the projected figures of the Tumkut City 'ii/iunicitaal Council for the purpose of determining the Larger Urban Area without taking into consideration the definétien ef the "po;3uiat§en"' in the Cienstitution as weii as é {fl KL') I in the Act, is not in accordance with iawi Unoehthe circumstances, it is held that as per the ascertain~eij_é'f'i§ut'e:s of 2001 Census, which has been oui::lished,i_ of the Smaller Urban Area of Councii was less than 3 ial<h.s_ and"hen.ce, on "that figure, the requirement of the of Section 3 in the instanet"'case_«'lh'a:sVi cotnpwlyyied with.

Therefore, the   thereby
constituting  is not in
accordance    ' circumstances, the

notificatilony in/ltivtllwloletition is declared to be illegal 558i l;l'auviAn'gr.'"'held so, the question that has to be "'constid.ei°e'd isas to viilhéether the consequence of declaring a as-.v:'.i~~iiegai has to be taken to its logical conei_usion~ .Vliinias much as it was contended by the 3""'.__V"reAsponcle..tits that despite any declaration being made that rt--he-..notification is iiiegai or not in accordance with iaw, hevertheiess since August 2010, the Turnkur City Corporation has been functioning and therefore, the saio state of affairs neeo not be interfered with'

59. In this context, counsei for the intervenecaiso suggested that any order passed by this Court given effect to untii the census i'igures_....nf"~..2'(§.i:'1._aig published. Counsei for respondent that since many officers andV.of_ﬂciaiAs'haive bee't:VV.ap:poi'i;ited and aiso various pubiic works'V"C'ate' in priogress, this Court need not intervene in the said notific:ation. counsel for the respondents'iiAs:note.d, the investment of funds, and various projects under netfertheless when it comes to a question' the Constitution of India or the constituitionaiitt/' oi-anihact, this Court cannot hold itself . .°'back: 'Canard simply deciaére that the notification is non--est in effect to the said decision. Intact, this CoAu~-sit v§iii~f:VC'b~'ei faiiing in its duty if after deciaring the notification to be iiiegai and non--est, wouid also A same breath hoid that the Ttzmkur City Corporation it ...;Aiiwich has been constituted by virtue of the said impugned it notification couid nevertheiess continue to functien untii 3 2811 Census figures are deciaredt Qne redeeming featirie would have to be continued. The direction issued in the said case was on the premise that the constitution.T'of,jthe Corporation was iegai and in accordance withéV.i..i_a4'w.;"i-4'fi'he:g fact is that an order is passed by this Coo.rt"'d.i:ifecti~ni'c; idtisei State Government to conduct the;Jeie»cti'o.Vn's_Tto City Corporation wouid not have any"bearing.";in"so f'ar"*as'-, the validity of the constito't'i»o.n» of tii~e"'*C.orp.°o_ratVion is' concerned. Now that-._thi's.WVCodrt§:.ii'has heiiidi that the constitution of the Corpoi?atio.n'is in accordance with iaw, the" o'i'jgfe.ctiohs issiieti» :i'n':."W._P:fNo.8936/2011 and automaticaliy have no effectafo r . ' ~ 61:"i.._;Vn notification dated 25/1/2010, whichyis prodijc--ed____at. Annexure "E" as welt as notification ' wdat.ed..¢_2'5i/'8[§:Q__10, which is produced at Annexure "F" are deciiared-".asVA'nLiii and void and non~est in the eye of iawi Ho4iee\}'eVr,.'I4'iberty is reserved to the respondents to initiate 2 AiVa'in";isA action in so far as Constitution of Tumkur City "Corporation is concerned, in accordance with the Constitution of India as weii as the Act. 3 /"L"

\ C>'\ L J 1

62. In the result; thiﬁ writ petition is aifowed. 35;;

*mvs

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