Gujarat High Court
Kunal Pradip Patel vs State Of Gujarat Through Additional ... on 7 May, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/7002/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7002 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7003 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7004 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 7326 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8027 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 8138 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
=====================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
=====================================================
KARODIYA VILLAGE PANCHAYAT THROUGH SARPANCH
Versus
STATE OF GUJARAT
=====================================================
Appearance:
MR SP MAJMUDAR(3456) for the Petitioner No. 1
for the Respondent Nos. 2,3
MR. K.M. ANTANI, AGP (1) for the Respondent No. 1
NANAVATI & CO.(7105) for the Respondent No. 4
=====================================================
CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date :07/05/2021
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Heard learned advocate Mr. S.P. Majmudar appearing for the petitioners and learned Assistant Government Pleader Mr. K.M. Antani for the respondent - State through video conference.
1. Rule returnable forthwith. Learned Assistant Government Pleader Mr. K.M. Antani waives service of notice of rule on behalf of the respondent - State. By consent of both the learned advocates for the parties, matters are taken-up for final hearing.
2. By these petitions under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the order dated 30th March, 2020 passed by the respondent no.1 - Additional Chief Secretary, Urban Development and Urban Housing Department of the State of Gujarat, as well as the Resolution dated 8th August, 2019 passed by the Standing Committee of respondent no.3 - Vadodara Municipal Corporation (herein after referred to as 'the VMC'), as well as, Resolution dated 19th September, 2019 passed in General Meeting of the respondent no.3 - VMC. After filing of the petitions, the petitioners have amended the petitions and challenged the notification dated 18th June, 2020 whereby the petitioner Panchayats have been included within the limits of VMC.
Page 2 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT3. As the facts of each of the petitions are more or less similar as the petitioner panchayats have objected to be included within the municipal limits of VMC and have challenged the notification issued by the State Government, the petitions were heard analogously and are being disposed of by this common order. The details of each of the petitions and corresponding village panchayat is as under :-
Sr. Special Civil Name of Village No. Application number Panchayat 1 7002 of 2020 Karodiya Village Panchayat 2 7003 of 2020 Bill Gram Panchayat 3 7004 of 2020 Undera Village Panchayat 4 7326 of 2020 Sevasi Gram Panchayat 5 8027 of 2020 Residents of Bhayali Village 6 8138 of 2020 Vemali Village Panchayat 7 10688 of 2020 Residents of Segva and Syadla Village 10777 of 2020 Panvhayat These seven villages were sought to be included by the respondent no.3 - VMC and accordingly, Standing Committee of the respondent no.3 - corporation passed a resolution dated 8th August, 2019 for including the areas of seven village panchayats in the area of VMC.Page 3 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT
3.1 In the general meeting of VMC, resolution dated 19th September, 2019 was passed to include these villages within the limits of the VMC.
3.2 The respondent no.1 - Urban Development and Urban Housing Department received a proposal dated 4th October, 2019 from the Municipal Commissioner of VMC with respect to inclusion of area of these villages into the limits of the VMC.
3.3 The petitioner gram panchayats raised objections by a detailed representation dated 23rd October, 2019 against the resolution dated 8th August, 2019 and 19th September, 2019 passed by the Standing Committee and in the General Meeting of the VMC.
3.4 The petitioner gram panchayats preferred Special Civil Applications before this Court with a prayer to direct the respondent - State to decide the objections dated 23rd October, 2019 and this Court vide order dated 22nd January, 2020 directed the respondent no.1 to decide the objections dated 23rd October, 2019 in accordance with law before 31st March, 2020. The Development Commissioner, tendered his opinion dated 10th January, 2020 to the panchayat - Rural Housing and Rural Development Department for inclusion of the petitioner gram panchayats into the limits of the VMC. The Deputy Collector, Vadodara also Page 4 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT submitted an opinion for inclusion of the petitioner panchayats into the limits of VMC on 13th January, 2020. The Collector also vide opinion dated 15th January, 2020 endorsed the opinion of Deputy Collector and forwarded the same to the respondent no.1.
3.5 The petitioner gram panchayats were informed by letter dated 5th February, 2020 issued by the respondent no.1 with regard to the date of hearing of the representation dated 23rd October, 2019 to be held on 10th February, 2020. The sarpanch of the petitioner gram panchayats remained present on 10th February, 2020 before the Additional Chief Secretary of the Urban Development and Urban Housing Department for personal hearing and submitted oral and written submissions objecting inclusion of the petitioner gram panchayats into the limits of the VMC. The respondent no.1 by detailed order dated 30th March, 2020 rejected the oral and written submissions made by the Sarpanch of the petitioner gram panchayats. The Government, thereafter passed notification dated 18th June, 2020 to include the areas of petitioner villages within the limits of the VMC.
4. Learned advocate Mr. S.P. Majmudar appearing in all the petitions filed by the six gram panchayats, which are merged into the local limits of VMC submitted that without there being Page 5 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT any justifiable reason, VMC passed resolution in the Standing Committee on 8th August, 2019 without there being any request or opinion by the Municipal Commissioner to include the petitioner villages in the area of the VMC. Learned advocate Mr. Majmudar further submitted that there was no consultation with the petitioner village panchayats and therefore, resolution passed by the Standing Committee, as well as, the General Body of the VMC are passed in gross violation of principles of natural justice as the petitioner panchayats were not heard prior to passing of any of the resolutions.
5. It was submitted that the petitioner panchayats were never heard either by the standing committee or in the general meeting of the VMC before initiating the proceedings for inclusion of area of the petitioner villages panchayats into the limits of the VMC and therefore, such resolutions are unjustified and are passed with malafide intentions.
6. Learned advocate Mr. Majmudar submitted that it is a settled law that the property belonging to the village panchayat including gamtal or gauchar land cannot be acquired or divested without consultation with the village panchayat.
The petitioner panchayats made detailed representation dated 23rd December, 2019 pointing- out that the petitioner village panchayats are Page 6 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT providing all the facilities like road, drainage, clean water, street lights etc. to the villages. It was pointed-out that in the recently acquired village panchayats vide notification dated 5th February, 2019 into the limits of the VMC, no basic facility like road, drainage, clean water etc., are provided and the salary of school teachers are also paid by the District Panchayat. It was therefore, submitted that there is no justification for including the area of the petitioner village panchayats into the limits of the VMC.
7. Learned advocate Mr. Majmudar submitted that the respondent no.1 pursuant to the order passed by this Court on 22nd January, 2020 has granted opportunity of hearing to the Sarpanch of the petitioner panchayats and passed the detailed order considering the submissions made in respect of each of the petitioner village panchayats ignoring the interest of the citizens residing in the area of the petitioner village panchayats who are mainly Adivasi and would face with the burden of higher tax rate which would be imposed by the VMC. It was submitted that the impugned order dated 30th March, 2020, as well as, notification dated 18th June, 2020 are contrary to and in violation of Article 243Q of the Constitution of India. It was submitted that the finding of the respondent no.1 that more than 60% of the population of the petitioner village Page 7 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT panchayats is engaged in activity other than agriculture is not correct and as such the impugned order and notification are required to be quashed and set aside.
8. Learned advocate Mr. Majmudar also submitted that the VMC is facing serious budgetary issue and has failed to provide services in the area which are included into the limits of the VMC before the election of 2010 and therefore, inclusion of new area into the limits of the VMC would cause further burden upon the municipal corporation and the citizens would be deprived of basic facilities and services. It was also submitted that the respondent authority has failed to consider that before the inclusion of new area into the limits of the VMC, the provisions of funds should be made by the State Government. It was also submitted that the merger or extensions of the limits of the corporation should be done at the time of preparing census so that the election wards may not be reshuffled in every election. It was pointed-out that the inclusion of petitioner gram panchayats are merged into the limits of the VMC with a deliberate attempt before the election so as to deprive the village people from electing their own local body for effective governance more particularly when the VMC has failed to cater the needs of the people. Reliance was placed on the decision of this Court in case of Page 8 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT Shah Education Medical College Vs. Jamnagar Municipal Corporation reported in 2006 (2) GLH 198, wherein it is held that requirement of observance of principles of natural justice are imperative and inbuilt when imposition of tax is challenged as it causes adverse civil consequences even if the provisions of the Act do not suggest observance of principles of natural justice, it should be read into it.
9. Reliance was also placed on the decision of Kantilal Dharamdas Kachoriya Vs. Chief Officer, Palanpur Nagarpalika, reported in 1986 (2) GLR 1214, wherein this Court held that municipality being State within the meaning of Article 12 of the Constitution of India, it cannot act arbitrarily or unreasonably against the principles of administration of public properties. It was therefore, submitted that the proceedings initiated by the VMC are bad as the true object is to reach an end different from the one for which the power is entrusted and the action on the part of VMC amounts to fraud on power. It was therefore, submitted that the approval of the resolution passed by the respondent no.1 overruling the objections raised by the petitioner gram panchayats contrary to the wish of the village people is bad in law and therefore, the impugned orders - notifications are liable to be quashed and set aside.
Page 9 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT10. On the other hand, learned AGP Mr. K.M. Antani submitted that the notification dated 18th June, 2020 whereby seven villages are included in the limits of the VMC has been passed by the Government in exercise of powers conferred by Article 243Q (2) of the Constitution of India. It was submitted that the publication of the notification dated 18th June, 2020 is neither an executive function nor administrative one, but it is a legislative process. It was submitted that the Apex Court in catena of decisions has held that the process of excluding or including areas from the limits of the municipal corporation is a legislative one and the only question which may be examined is whether the statutory provisions have been complied with or not. It was therefore, submitted that in the case of legislative act of legislature the question of application of principles of natural justice does not arise. However, an opportunity of hearing was given to the Sarpanch of the petitioner gram panchayats pursuant to the order passed by this Court on 22nd January, 2020 in Special Civil Application nos.20747 to 20751 of 2019. Learned AGP Mr. Antani invited the attention of the Court to the detailed order dated 20th March, 2020 wherein the objections of concerned gram panchayats and the resolutions passed by each panchayat objecting to inclusion of the areas of panchayats into the limits of the VMC is considered. It was submitted that neither the Page 10 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT provisions of Gujarat Panchayat Act, 1993 nor the provisions of Gujarat Provincial Municipal Corporations Act, 1949 provides for applicability of principles of natural justice.
11. Learned AGP Mr. Antani further submitted that the impugned order dated 30th March, 2020, as well as, the notification dated 18th June, 2020 have been passed after considering the opinions by the concerned authority like Development Commissioner, District Collector, Deputy Collector etc.
12. It was submitted that all the petitioner gram panchayats and concerned taluka panchayats and district panchayats has passed a resolution objecting inclusion of the area of the petitioner gram panchayats into the limits of the VMC, but at the same time, the authorities have taken into consideration that in the revenue income of the six villages, the share of the income for non- agriculture activity is on an average 60%. The respondent no.1 while passing the impugned order dated 30th March, 2020 has considered the 2011 census, population, area of the villages under non-agriculture activities, percentage of population having income from non-agricultural sources etc., in consolidated table and thereafter, the objections raised by each of the gram panchayat is dealt with individually in the impugned order. It was pointed-out that the DDO Page 11 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT after referring to the resolution passed by the gram panchayats, Taluka Panchayat and District Panchayat, considered the various factors to form an opinion to include the area of the petitioner pachayats into limits of the VMC so as to extend the benefits of services provided by the VMC to the village people.
13. Learned AGP Mr. Antani thereafter, submitted that following factors have been considered by the respondent no.1 while passing the impugned order and notification for inclusion of the seven gram panchayats into the limits of VMC. (1) Population as per 2011 Census, area of the villages under non-agricultural activities, percentage of population having income from non- agriculture sources etc. (2) Resolution passed by the Standing Committee in the General Meeting of VMC. (3) requirement for establishing proper sewerage and drainage system in the societies in the panchayats and in the areas around the Panchayats. (4) The inclusion is aimed at increasing the number of facilities in addition to the essential facilities which are provided to the residents of the area. (5) The 52 Town Planning Schemes have been approved for the VMC for establishing a proper system and network of road and the VMC being an experienced entity, it would be highly beneficial for the development of the area that have been included within its limits. (6) The VMC prepares and updates the Page 12 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT Master Plans at regular intervals, which enables to deal with the issue of rainwater drainage and resolve the problems of rainwater logging and overflowing of sewerage in the concerned villages. (7) There are greater employment opportunity in the urban areas and with inclusion of the areas of the petitioner gram panchayats within the limits of the VMC, the residents of villages would be able to avail the benefits of various schemes.
14. Learned AGP Mr. Antani therefore, submitted that as required by Article 243Q(2) of the Constitution of India, all the factors are considered by the concerned authority while giving their opinion for inclusion of areas to the limits of the VMC. It was submitted that the object behind passing the notification dated 8th June, 2020 is to enable the ward based system to be put in place in all seven villages so that there can be better provision of basic amenities and facilities like housing schemes for Socially and Educationally Weaker Sections of the society, construction of Community Health Centers, allotment or development of Commercial Complexes, development of roads etc., which is not possible by the petitioner gram panchayats. It was pointed-out that 15 sq. km. area has already been converted to non-agriculture use and the remaining area is also under process of being converted for non-agriculture use in the all Page 13 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT seven villages and in order to see that they are properly developed, as a plan to formulate the Town Planning Scheme to carry-out the development process in the entire area included in the VMC as per the provisions of the Gujarat Town Planning and Urban Development Act, 1976. It was submitted that the VMC has an experienced man power to provide facilities like proper sewerage network, drinking water facilities, garbage collection and disposal and traffic management, which would assist in creation of master plan for the area to be included in the limits of the VMC for proper systematic and streamline development for the benefit of the citizens of the petitioner gram panchayats.
15. Learned AGP therefore, submitted that impugned notification makes it clear that the Government land which is situated within the areas of the Gram Panchayat and Revenue Villages shall not vest in the VMC and therefore, the contention of the petitioners regarding loss of land of the panchayats is not correct as the Government land would not change post inclusion. It was submitted that considering the facts of the case, when there is an effective consultation with the respective petitioner gram panchayats is enough and in the consent of each of the panchayats is not sine qua non for taking the policy decision by the State Government for inclusion of the area of village panchayat to the Page 14 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT limits of municipal corporation. In the facts of the case, the objections raised by the petitioner panchayats are considered after giving an opportunity of hearing pursuant to the order passed on 22nd January, 2020 and it was only after such hearing that the impugned notification dated 18th June, 2020 was passed. It was therefore, submitted that no interference may be made in the impugned order and notification, which are under challenge.
16. Learned AGP Mr. Antani relied upon the following decisions in support of his submissions.
Sr. Name of parties Citation Proposition Para
no. Nos.
1 Tulsipur Sugar (1980) 2 Principles of 6, 7,
Co. ltd., Vs. SCC 295 natural justice 9 and
The notified inapplicable where 10
Area Committee, the authority is
Tulsipur acting in exercise
of legislative
power.
2 Rameshchandra (1981) 2 Administrative 17
Kachardas Porwal SCC 722 law-natural
& Ors. Vs. State justice-not
of Maharashtra & applicable in
Ors. making a
legislative
instrument.
3 Sudarjas (1989) 3 In absence of 27,
Kanyalal Bhatija SCC 396 express statutory 28,
& Ors. Vs. provision, 30
Collector, principles of and
Thane, natural justice 31
Maharashtra & excluded from this
ors. process and there
is no obligation
to afford
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C/SCA/7002/2020 CAV JUDGMENT
opportunity of
hearing to the
objectors.
(Bombay Provincial
Municipal
Corporation Act)
4 State of Punjab (2002) 2 Declaration of 6 to
Vs. Tehal Singh SCC 7 territorial area 10
& Ors. of a Gram Sabha
and constitution
of a Gram Sabha -
Principles of
natural justice
need not be
observed in the
absence of clear
provisions
stipulating such
observance.
5 Junagadh 2003 (3) The function of 23 to
Municipality Vs. GLR 2663 the Government in 27
State of Gujarat Special establishing a and
Civil Corporation under 36-37
Applicati the Act is neither
on No. executive nor
9243 of administrative.
2002 Where the
legislature in its
wisdom has not
chosen to provide
for any
opportunity of
hearing or
observance of
principles of
natural justice
before the issue
of a declaration
either under
Section 3 or
Section 4 of the
Act, the resident
of the area cannot
insist on an
opportunity of
hearing before the
area where they
are residing is
included in
another Gram Sabha
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C/SCA/7002/2020 CAV JUDGMENT
or local
authority,
6 Ramani Writ Inclusion of 4
Chandubhai Petition village Kothariya
Govindbhai V. (PIL) within the
State of Gujarat No.40 of Municipal
& Ors. 2015 Corporation of
Rajkot,
challenged. The
object sought to
be achieved has
reasonable
relation and nexus
with the inclusion
of Kothariya Gram
Panchayat within
the limits of
Rajkot Municipal
Corporation and
therefore, we find
that there is
valid
classification,
and the
notification
impugned is not
violative of
Article 14 of the
Constitution.
17. Having heard learned advocate for the
respective parties and having gone through the materials on record, it is not in dispute that the petitioner village panchayats have been provided an effective opportunity of hearing pursuant to the order passed by this Court on 22nd January, 2020, which reads as under :-
1. Heard Mr. S.P.Majmudar, learned advocate for the petitioner and Ms. Jyoti Bhatt, learned AGP for respondent Nos.
1,2 and 3 and Mr. Niyant Bhimani, Page 17 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT learned advocate for M/s Nanavati & Co for respondent No.4. Mr. Majmudar, learned advocate for the petitioner submits that objections dated 23.10.2019 lodged by the petitioner to respondent Nos. 1 and 2 against the acquisition of property of the Panchayat by the Vadodara Municipal Corporation are still pending. He therefore, urges that respondent No.1 being the competent authority may be directed to decide them expeditiously in accordance with law.
2. Ms. Bhatt, learned Assistant Government Pleader urges that reasonable time may be allowed to respondent No.1 to consider and decide the objections.
3. In view of the above, respondent No.1 is directed to decide the objections dated 23.10.2019 lodged by the petitioners before taking any decision on the resolution dated 08.08.2019 passed by the Standing Committee, Vadodara Municipal Corporation as well as resolution dated 19.09.2019 passed in the General Meeting of the Vadodara Municipal Corporation in accordance with law as expeditiously as possible but not later than 31.03.2020.
4. With these directions, the petitions stand disposed of.
Notice is discharged. Direct service is permitted."
Page 18 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT18. The petitioner gram panchayats submitted detail representation on 23rd October, 2019 and 10th February, 2020 at the time of personal hearing before the Additional Chief Secretary, Urban Development and Urban Housing Department. The respondent no.1 considered the submissions of each of the petitioner panchayat in detail in a tabular form and thereafter, arrived at a finding that average 60% of the village people are earning through non-agricultural activity and as such each of the village is having more inclination to be an urban area rather than village area. The respondent no.1 considered the provisions of Article 243Q of the Constitution of India and thereafter, considered that the petitioner gram panchayats are abutting to the VMC and considering the experience and the expertise of the VMC to provide waters supply, drainage, road, Sewage Treatment Plant, street lights, gardens, playgrounds, rainy water drainage system, primary education and Town Planning Schemes under the provisions of the Act, 1976 the village people of the petitioner gram panchayats would get better facilities of urban area and would have better quality of life and therefore, it was considered proper to include the petitioner gram panchayats into the limits of the VMC.
19. In order to consider whether the impugned order and notifications are in consonance with Page 19 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT the provisions of Article 243Q of the Constitution of India or not, it would be germen to refer to Article 243Q of the Constitution of India, which reads 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 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 tile 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 Page 20 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT 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."
20. On perusal of the Article 243Q, it is clear that the impugned order dated 30th March, 2020 and the notification dated 18th June, 2020 are issued after considering the factors relevant for inclusion of the petitioner village panchayats in the municipal area so as to provide municipal services after following due process by inviting favourable opinions of the Development Commissioner dated 10th January, 2020, as well as, the opinion dated 13th January, 2020 from the Collector, Vadodara. The respondent authorities have also considered that after deducting the area falling within the gram panchayats, approximately 15 sq. km. area has already been converted to non-agriculture use and the remaining area is also under process of being converted to for non-agriculture use and in order to develop such area and considering the development of outgrowth area on the peripheral boundary of the petitioner gram panchayats, which consists of almost 330 residential societies with other constructions of commercial nature and thereafter the impugned orders and notifications are passed to include such village panchayats into the limits of the VMC.
Page 21 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT21. The respondent no.1 in the further affidavit of reply has made the following averments:
"11.5 It is further submitted that presently, the total population of the villages is approximately 1,20,000. The projected population of the whole area is about increase at a fast pace in the next few years. The whole objective behind including the said areas within the limits of the Vadodara Municipal Corporation is to enable the ward base system to be put in place in such villages so that there can be better provision of basic amenities and facilities, for instance, housing schemes for Socially & Educationally Weaker Sections of the Society, construction of Community Health Centres, allotment or development of Commercial Complexes, development of roads etc. It is pertinent to note that the respondent corporation has greater resources, infrastructure and manpower as compared to the Gram Panchayats that have limited resources, infrastructure and manpower and are not able to cater to all the needs of this growing and developing outgrowth area.
11.6 It is further pertinent to note that for this area consisting of 7 villages which have been included in the limits of the Vadodara Municipal Corporation, there is a plan to formulate a Town Planning Scheme. All the development that is proposed to be carried out in the said area which has now been included in the limits of Vadodara Municipal Corporation shall be after necessary deductions as per the Gujarat Town Planning and Urban Development Act, 1976. Some of the Page 22 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT facilities that are urgently required to be provided to the said areas are as follows :
11.7 SEWERAGE LINES: Furthermore, presently in such areas, there is a facility of only two (2) MLD mini plant for water treatment and management.
However, the capacity of such plant for handling the drainage is insufficient for such a large developing area. It is submitted that the capacity of sewage and drainage lines, that have been laid down in the said villages is not sufficient to cater to the needs of the growing population in the said area. As a matter of fact, that the said sewerage lines have a tendency of being over-filled and the waste materials are being discharged into the nearby water bodies and leading to an increased in the population in the said area. At this juncture, the deponent would like to highlight one such instance which is occuring in Undera village, where the drainage pipeline of the Undera Village has insufficient capacity and the water and waste materials of such drainage line are being discharged into the gutter lines into one of the societies which are on the boundary of the respondent no.4 corporation.
11.8 DRINKING WATER : It is further pertinent to note that the respective Gram Panchayats are unable to provide any facility in the outgrowth areas and each society is forced to have its own bore facility for supply of water. Such water is not potable and is hard, and it is not possible for the Gram Panchayats to even fulfill such needs in the future.
11.9 GARBAGE COLLECTION AND DISPOSAL :
The Vadodara Municipal Corporation has the Page 23 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT facility of door-to-door collection of garbage and disposal of the same in the land fill sites whereas the Gram Panchayats do not have any such facility. Due to lack of proper waste disposal mechanism in these areas, there is a high probability of occurrence of various medical and health hazards.
11.10 TRAFFIC MANAGEMENT : At present in these areas, there are total 35,000 two-
wheelers and 5000 four-wheelers and approximately 500 to 700 tractors which shall increase in the future. This will lead to creation of problem of traffic management and without a proper network of roads, junctions, traffic signals, pedestrian crossing, sign boards, the problems for managing the population would only increase. The Vadodar Municipal Corporation will also be responsible for constructing bridges as and when required."
22. From the above details submitted by the respondent no.1, it cannot be said that the impugned order and notification are contrary to the settled legal position with regard to the to inclusion of the gram panchayats into the limits of the Municipal Corporation so as to ensure that there is proper systematic and streamline development of the area.
23. The Apex Court in case of State of Punjab Vs. Tehal Singh & Ors. reported in (2002) 2 SCC has held that declaration of territorial area of a Gram Sabha and constitution of a Gram Sabha - Principles of natural justice need not be Page 24 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT observed in the absence of clear provisions stipulating such observance.
24. This Court in case of Junagadh Municipality Vs. State of Gujarat, reported in 2003 (3) GLR 2663 has held as under :
"23.Mr. K.B. Trivedi, learned Additional Advocate General appearing for the respondents submits that as per the Provision of Articles 154, 163 and 166 of the Constitution, it is the satisfaction of Council of Ministers on whose aid and advice the Governor exercises all his powers and functions under the Constitution barring a very small area of exercise of his own personal discretion, wherever it is so expressly provided under the Constitution. In this view of the matter, wherever the Constitution requires the satisfaction of the Governor for the exercise of any power or function by the Governor, the satisfaction required by the Constitution is not the personal satisfaction of the Governor but is the satisfaction of the Governor in the constitutional sense under the Cabinet System of Government and that therefore executive action taken in the name of the Governor is the executive action of the State. He has therefore submitted that the exercise of the power under Art. 243Q(2) of the Constitution for declaration of any larger urban area is not a matter of the Page 25 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT personal discretion of the Governor but is the exercise of the said power in the constitutional sense in the Cabinet System of the Government i.e. the satisfaction of the Council of Ministers on whose aid and advice, the Governor is to exercise the said power. He has further submitted that despite this Constitutional Provision, as far as the present case is concerned, the whole matter was in fact placed before the Governor and he has considered and thereafter, the Notifications were issued. In support of his submission, Mr. Trivedi has relied on the decision of the Hon'ble Supreme Court in the case of SAMSHER SINGH V/S. STATE OF PUNJAB AND ANOTHER, 1974 (2) S.C.C. 831 wherein it is held as under :-
"The Governor is the constitutional or formal Head of the State and he exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.
Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Page 26 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government.
It may be noted that clause (2) or clause (3) of Art. 166 is not limited in its operation to the executive action of the Government of the State under clause (1) of Article 166. The expression "Business of the Government of the State" in clause (3) of Art. 166 includes all executive business.
The Executive is to act subject to the control of the Legislature. The executive power of the Union is vested in the President. The President is the formal or constitutional head of the Executive. The real executive powers are vested in the Ministers of the Cabinet. There is a Council of Ministers with the Prime Minister as the head to aid and advise the President in the exercise of his functions and in this respect Art. 74(1) is mandatory.
The fundamental principle of Page 27 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT English Constitutional Law that Ministers must accept responsibility for every executive act is incorporated in our Constitution.
Therefore, wherever the
Constitution requires the
satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the Governor in the constitutional sense in the Cabinet system of Government, but is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under Rules of business made under any of the two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of a Minister or officer under the Rules of Business is the decision of the President or the Governor."
24. Mr. Trivedi has further relied on the decision of the Hon'ble Supreme Court in the case of STATE OF U.P. AND OTHERS V/s. PRADHAN SANGH KSHETTRA SAMITI AND OTHERS, 1995 SUPP. (2) S.C.C. 305 wherein it is held as under :-
Page 28 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT"Section 2(t) not only speaks of villages recorded in the revenue records as such but also includes in the definition any area which the State Government may by general or special order declare to be a village for the purposes of the Act. The concept of village is not foreign either to the Constitution or to the State legislation. There is nothing wrong if the Governor specifies the revenue villages as villages and in addition also those villages and settlements which are not so recorded in the revenue records as villages for the purpose of constituting village panchayats. The "revenue village" is, therefore, a documented ready-made concept of village and the Governor while acting under art. 243(g) for specifying the village may adopt the same as village. No restriction has been placed by Art. 243(g) on the Governor for accepting the revenue village as a village for the purposes of constituting village panchayat. In fact, the Governor has been empowered by the said constitutional provision to declare even a group of village as a village. Therefore, the Act cannot be said to be violative of the Constitution when the State Govt. declares any area including a revenue village as a village. In any case, the court cannot substitute its concept of village for that of the State Page 29 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT Government.
It is also not true that under the Act the State Government cannot declare the village by special or general order as required by Section 2(t) because Article 243(g) of the Constitution requires the Governor "to specify the village by a public notification". The general or special order issued by the State Government is always published in the Official Gazette. In any case, the order declaring the villages for the purposes of Section 2(t) in the present case was gazetted. There is a hierarchy of legal instruments such as law, ordinance, order, bye-law, rule, regulation and notification. It is recognised even by Art. 13(3)
(a) of the Constitution and Sec.
3(29) of the General Clauses Act, 1897. All the orders, rules, regulations and notifications when made or issued by the State Government are made or issued in the name of the Governor by the functionary of the Ministry concerned named in the rules of business as per the provisions of Art. 166 of the Constitution.
In view of the provisions of Art. 154 and of Art. 163 read with Art. 166 of the Constitution 'Governor' means the Government of the State and all executive functions which are exercised by the Governor except where he is required Page 30 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT under the Constitution to exercise the functions in his discretion, are exercised by him on the aid and advice of the Council of Ministers, whether it is a notification issued by the Government of a general or special order issued by the State Government, constitutionally both are the acts of the Governor."
25. Mr. Trivedi has further submitted that upon issuance of Notification dtd. 13.09.2002, in exercise of the powers conferred under Article 243Q(2) of the Constitution of India after considering all the factors contained in Article 243Q(2), a constitutional mandate was carried out by constituting an institution of local self-Government for the larger urban area of the city of Junagadh "the Municipal Corporation of the city of Junagadh." The exercise of the said constitutional mandate at the behest of the Governor of the State is a constitutional-cum- legislative function and hence the same does not require any opportunity of personal hearing and the same is also not justiciable and the Court cannot sit in judgment over such exercise
- discretion. In support of his submission, he relied on the decision of the Hon'ble Supreme Court in the case of TULSIPUR SUGAR CO. LTD. V/s. THE NOTIFIED AREA COMMITTEE, TULSIPUR, 1980 (2) S.C.C. 295 wherein it is held as Page 31 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT under :-
"If the function of the government is judicial or quasi- judicial involving adjudication of the rights of any person resulting in civil consequences, it no doubt becomes necessary to follow the maxim audi alteram partem (hear the other side) before taking a decision. In order to establish that a duty to act judicially applies to the performance of a particular function, it is no longer necessary to show that the function is analytically of a judicial character or involves the determination of a lis inter partes; though a presumption that natural justice must be observed will arise more readily where there is an express duty to decide only after conducting a hearing or inquiry or where the decision is one entailing the determination of disputed questions of law and fact. Prima facie, moreover, a duty to act judicially will arise in the exercise of a power to deprive a person of his livelihood or of his legal status where the status is not merely terminable at pleasure, or to deprive a person of liberty or property rights or another legitimate interest or expectation, or to impose a penalty on him; though the conferment of a wide discretionary power exercisable in the public interest may be indicative of the absence of an Page 32 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT obligation to act judicially. Where a discretionary power to encroach upon individual rights is exercised, the factors pointing to whether it must be exercised judicially include the nature of interests to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any, involved.
Exceptionally, a duty to act judicially may arise in the course of exercising a function not culminating in a binding decision, if the wording of the grant of powers or the context indicates that a fair hearing ought to be extended to persons likely to be prejudicially affected by an investigation or recommendation. However, it is only where an administrative decision affects the rights of persons, it becomes the duty of the authority concerned to give notice of the proposed action to the person to be affected and to make his representation in that regard; but an authority which has to exercise a legislative function need not follow the principles of natural justice before discharging such function.
Section 3 of the Act is in the nature of a conditional legislation. The power of the State Government to make a declaration under that section is legislative in character because the application of the Page 33 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT rest of the provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration. The maxim of audi alteram partem does not become applicable to the case by necessary implication. Section 3 does not require the State Government to make declaration after giving notice of its intention so to do to the members of the public and inviting their representations regarding such action.".
26. Mr. Trivedi has also relied on the decision of the Hon'ble Supreme Court in the case of SUNDARJAS KANYALAL BHATIJA AND OTHERS V/s. COLLECTOR, THANE, MAHARASHTRA AND OTHERS, 1989 (3) S.C.C. 396 wherein it is held as under :-
"The function of the government in establishing a Corporation under the Act is neither executive nor administrative. It is a legislative process. No judicial duty is laid on the government in discharge of the statutory duties. The only question to be examined is whether the statutory provisions have been complied with. If they are complied with, then the Court could say no more. In the present case, the government did publish the proposal by a draft notification and also considered the representation received. It Page 34 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT was only thereafter, a decision was taken to exclude Ulhasnagar for the time being. That decision became final when it was notified under Sec. 3(2). The court cannot sit in judgment over such decision. It cannot lay down norms for the exercise of that power. It cannot substitute even "its juster will for theirs".
The government in the exercise of its powers under Section 3 is not subject to the rules of natural justice any more than is legislature itself. The rules of natural justice are not applicable to legislative action plenary or subordinate. The procedural requirement of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed.
The principles and precedents thus do not support the view taken by the High Court. The government is only expected to act and must act in a way which would make it consistent with the good administration. It is they, and no one else who must pass judgment on this matter."
27. Mr. Trivedi has further relied on the decision of the Hon'ble Supreme Court in the case of STATE OF PUNJAB V/S. TEHAL SINGH AND OTHERS, 2002 (2) S.C.C. 7 wherein Page 35 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT it is held as under :-
"The principles of law which are pertinent in this context are :
(1) where provisions of a statute provide for legislative activity i.e. making of a legislative instrument or promulgation of general rule of conduct or a declaration by a notification by the Government that a certain place or area shall be part of a Gram Sabha and on issue of such a declaration certain other statutory provisions come into action forthwith which provide for certain consequences; (2) where the power to be exercised by the Government under provisions of a statute does not concern the interest of an individual but relates to the public in general or concerns a general direction of a general character and is not directed against an individual or to a particular situation; and (3) lays down future course of action, the same is generally held to be legislative in character.
The provisions of Sections 3 and 4 of the Act which provide for declaring territorial area of a Gram Sabha and establishing a Gram Sabha for that area are not concerned with the interest of an individual citizen or a particular resident of that area. Declaration contemplated Page 36 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT under Section 3 of the Act relates to an area inhabited by the residents which is sought to be excluded or included in a Gram Sabha. The declaration under Section 3 of the Act by the Government is general in character and not directed to a particular resident of that area. Further, the declarations so made under Sections 3 and 4 of the Act do not operate for past transactions but for future situations. Under the aforesaid situation, when declarations by issue of notifications by the Government are made under Sections 3 and 4 of the Act respectively determining the territorial area of a Gram Sabha and establishing a Gram Sabha for that area, such declarations become operative at once. Once declarations are made under Sections 3 and 4 of the Act respectively and thereafter a Gram Panchayat is constituted under Section 10 of the Act, the entire remaining provisions of the Act become operative. On such declarations by a notification in the Gazette, the Gram Sabha, a body corporate comes into being with a number of powers and functions conferred upon it under the Act. As soon as a Gram Sabha is established and Gram Panchayat is constituted, they are entrusted with many general functions including construction, repair, and maintenance of community assets, agriculture including Page 37 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT agriculture extension, animal husbandry, dairy and poultry, promotion of adult literacy, public health and family welfare and many others. Further the Gram Panchayat is entrusted with judicial functions which are civil and criminal in nature. The power exercisable under Sections 3 and 4 of the Act respectively by the Government was, therefore, not an exercise of a judicial or quasi-judicial function where the very nature of function involves the principles of natural justice or in any case of an administrative function affecting the rights of an individual. It is therefore held that on making of declaration under Section 3 of the Act determining the territorial area of a Gram Sabha and thereafter establishing a Gram Sabha for that area is an act legislative in character in the context of the provisions of the Act.
In case of legislative act of legislature, no question of application of rule of natural justice arises. However, in case of subordinate legislation, the legislature may provide for observance of principles of natural justice or provide for hearing to the resident of the area before making any declaration in regard to the territorial area of a Gram Sabha and also before establishing a Gram Sabha for that area. Where Page 38 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT the legislature has provided for giving an opportunity of hearing before excluding an area from a Gram Sabha and including it in another local authority or body, an opportunity of hearing is sine qua non and failure to give such an opportunity of hearing to the residents would render the declaration invalid. But where the legislature in its wisdom has not chosen to provide for any opportunity of hearing or observance of principles of natural justice before issue of a declaration either under Section 3 or Section 4 of the Act, the residents of the area cannot insist on an opportunity of hearing before the area where they are residing is included in another Gram Sabha or local authority."
36. Article 243Q of the Constitution of India refers to the Constitution of Municipalities, which interalia, includes a Municipal Corporation for a larger urban area. Under Article 243 Q(2), the Governor of the State may constitute a 'larger urban area', 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. The question, therefore, arises as to whether discretion exercised by the Page 39 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT Governor should be based on his own personal satisfaction or the satisfaction of the Council of Ministers. Article 154 of the Constitution of India states that the executive powers of the State shall be vested in the Governor and shall be exercised by him either directly or through Officers subordinate to him in accordance with the Constitution. Article 163(1) of the Constitution makes it clear that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his function except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion. Alongwith this, Article 166(1) of the Constitution, requires to be noted, which says that all executive action of the Government of a state shall be expressed to be taken in the name of the Governor. In SAMSHER SINGH's case (SUPRA), the Hon'ble Supreme Court has observed that wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the Governor in the Constitutional sense in the cabinet system of Government, but is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers Page 40 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT and functions. In the case of State of U.P. and Others V/S. Pradhan Sangh Kshetra Samiti and Others (SUPRA), the Hon'ble Supreme Court had an occasion to deal with Article 243G of the Constitution, which requires the Governor to specify the village by a public Notification and in this context, it is observed that in view of the provisions of Art. 154 and 163 read with 166 of the Constitution, Governor means the Government of the State. On the basis of this reasoning, the discretion to be exercised by the Governor within the meaning of Art. 243Q(2) of the Constitution, can as well be construed as the discretion to be exercised by the Government of the State.
37. One of the grievances raised by Mr. Nanavati is that the Municipal Corporation was constituted without affording any opportunity of being heard. In this context, in the case of Sundarjas Kanyalal Bhatija and Others (SUPRA), the Hon'ble Supreme Court has observed that the function of the Government in establishing a Corporation under the Act is neither executive nor administrative. It is a legislative process and as held by the Hon'ble Supreme Court in the case of Tulsipur Sugar Co. Ltd. (SUPRA), an authority which has to exercise a legislative function need not follow the principles of natural justice before discharging such function. This is also Page 41 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT reiterated by the Hon'ble Supreme Court in the case of State of Punjab V/s. Tehal Singh and Others (SUPRA), by holding that on making of declaration under Section 3 of the Act determining the territorial area of a Gram Sabha and therefore, establishing a Gram Sabha for that area is an act legislative in character in the context of the provisions of the Act and where the legislature in its wisdom has not chosen to provide for any opportunity of hearing or observance of principles of natural justice before the issue of a declaration either under Section 3 or Section 4 of the Act, the resident of the area cannot insist on an opportunity of hearing before the area where they are residing is included in another Gram Sabha or local authority, in this view of the matter, the petitioner's grievance of non-granting of opportunity of being heard before issuance of Notification dtd. 13.09.2002 constituting Municipal Corporation for the city of Junagadh, does not seem to be justified."
25. In case of Ramani Chandubhai Govindbhai Vs. State of Gujarat & ors., in Writ Petition (PIL) no.40 of 2015, the Division Bench of this Court has held as under :-
"4. Having heard the learned counsel for the petitioner and on going through the material available on record, we notice Page 42 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT that the impugned notification is already issued on 3rd January, 2015 in view of the provisions of the aforesaid Act as well as the Constitution. The object sought to be achieved has reasonable relation and nexus with the inclusion of Kothariya Gram Panchayat within the limits of Rajkot Municipal Corporation and therefore, we find that there is valid classification, and the notification impugned is not violative of Article 14 of the Constitution."
26. The Apex Court in case of Tulsipur Sugar Co. Ltd., Vs. The notified Area Committee, Tulsipur, reported in (1980) 2 SCC 295 has held that principles of natural justice is inapplicable where the authority is acting in exercise of legislative powers.
27. Similarly, in case of Rameshchandra Kachardas Porwal & ors. Vs. State of Maharashtra & ors. reported in (1981) 2 SCC 722, it is held that the principles of natural justice is not applicable in making a legislative instrument. In case of Sundarjas Kanyalal Bhatija & Ors. Vs. Collector, Thane, Mahashtra & ors., reported in (1989) 3 SCC 386 in absence of express statutory provision, principles of natural justice stands excluded from this process and there is no obligation to afford opportunity of hearing to the objectors under the Bombay Provincial Page 43 of 44 Downloaded on : Sat Aug 21 16:00:16 IST 2021 C/SCA/7002/2020 CAV JUDGMENT Municipal Corporations Act, 1949.
28. In view of the above settled legal position, though the petitioner gram panchayats are not entitled to an opportunity of hearing, it cannot be said that no effective consultation was made by the respondent authorities as provided in Section 7 of the Gujarat Panchayats Act, 1993.
29. In view of the foregoing reasons, the petition fails and accordingly are dismissed. Rule is discharged.
(BHARGAV D. KARIA, J.) AMAR RATHOD...
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