Gujarat High Court
Vavdi Buzarg Gram Panchayat Through Dy. ... vs State Of Gujarat on 1 September, 2022
C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3740 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 12467 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VAVDI BUZARG GRAM PANCHAYAT THROUGH DY. SARPANCH -
MONIKABEN DHARMENDRASINH RATHOD
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
HL PATEL ADVOCATES(2034) for the Petitioner(s) No. 1
MS. SHRUTI PATHAK, AGP for the Respondent(s) No. 1
MR MEHUL H RATHOD(701) for the Respondent(s) No. 4
MR UM SHASTRI(830) for the Respondent(s) No. 3
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1,5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/09/2022
ORAL JUDGMENT
1. The present petition i.e. Special Civil Application Page 1 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 No.3740 of 2016, under Section 226 of the Constitution of India is preferred by the present petitioner - Vavdi Buzarg Gram Panchayat, being aggrieved and dissatisfied with the impugned notification dated 13.08.2015, which is published by exercising powers under the provisions of Article 243P of the Constitution of India under the signature of Deputy Secretary, Urban Development & Urban Housing Department, Gandhinagar, whereby the revenue areas of said villages are notified to be included as the part of the Godhra Municipality.
2.1 Brief facts of the case are as such that the present respondent No.1, by notification dated 13.08.2015 has included the petitioner - village and other villages in the limits of Godhra Municipality, whereas the respondent No.2 - Gujarat State Election Commission, Sachivalaya, Gandhinagar has issued by its order dated 03.09.2015 that the allocation of reserved seats of various constituencies of Godhra Taluka Panchayat and Panchmahal District Panchayat including the petitioner Page 2 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 village - Vavdi Buzarg Gram Panchayat for inclusion of Jafrabad Village in the limits Godhra Municipality, is also challenged in the present petition on the ground that 100% area of Jafrabad Village is not urbanized, whereas huge area of the petitioner village - Vavdi Buzarg Gram Panchayat is still doing agricultural work. 2.2 It is also found from the record that in the year 2015, the present petitioner - Vavdi Buzarg Gram Panchayat has filed Civil Application No.16868 of 2015 before this Hon'ble Court challenging the said notification by notifying all the survey numbers of parcels of land of Village Vavdi Buzarg Gram Panchayat is forming the part of Godhra Municipality along with other villages. It is found that during the pendency of that petition, election came to be held and Village Vavdi Buzarg Gram Panchayat was not included in the Godhra Municipality and at that point of time, the said petition came to be withdrawn by the present petitioner with a liberty to file a fresh petition if the said petition is implemented. It Page 3 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 also comes out from the record that the respondent authority has written a letter to respondent No.3 to include all the survey numbers of the petitioner's gram panchayat in the Godhra Municipality and therefore, it seems that the present petition i.e. Special Civil Application No.3740 of 2016 is filed in the name of present village panchayat, which is sworn by one Monikaben Dharmendrasinh Rathod shown as Deputy Sarpanch of the Panchayat. This Court had issued notice by order dated 08.03.2016 in the present petition i.e. Special Civil Application No.3740 of 2016 and had passed the order, which reads as follows:
"Notice returnable on 16.03.2016. Meanwhile, the impugned notification qua the petitioner gram panchayat shall not be implemented.
D.S. permitted."
Thereafter, the State Government has filed the reply through the Deputy Secretary, Urban Development & Urban Housing Department on 08.06.2018, thereafter, the Page 4 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 present matter is adjourned from time to time and today, when the present petition is called out the petitioner of Civil Application of 01 of 2022, which is filed by one of the villagers names Sanjaybhai Manharbhai Panda has appeared through his learned advocate Mr. A.J. Pandya and has submitted that his application is filed for impleading him as necessary and proper party as he and other villagers will be affected by the outcome of the present petition and since the village panchayat is the body elected by the political persons, he prays to implead him as a party in the present petition and that application is heard separately, which is dismissed by order dated 01.09.2022. Accordingly, the present main petition is heard today i.e. on 01.09.2022. Further, it is requested to note that another petition is filed by another village panchayat i.e. Special Civil Application No.12467 of 2016 by Bhamaiya (West) Gram Panchayat challenging the same notification dated 13.08.2015 and this Court has passed order on 27.07.2016, which is as under:
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C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 "1. Heard learned Advocate Shri Vijay Patel for H.L.Patel Advocates for the Petitioner. He submitted that another Petition being Special Civil Application No. 3740 of 2016 is filed with regard to the same notification and therefore while issuing the notice interim relief may be granted. He submitted that the possession may be protected. 2. In the circumstances Notice to the Respondents returnable on 22.8.2016. In the meanwhile the impugned notification dated 13.8.2015 may not be implemented till then. 3.
To be placed with Special Civil Application No. 3740 of 2016. Direct service permitted." Therefore, since the order is passed to hear that petition with Special Civil Application No.3470 of 2016, today i.e. on 01.09.2022, both the petitions are heard together. In the Special Civil Application No.12467 of 2016 also, the Deputy Secretary, Urban Development & Urban Housing Department has field his affidavit in reply. Therefore, Page 6 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 both the petitions are heard together as the subject matter of both the petitions is same by way of challenge to the impugned notification dated 13.08.2015 issued by Urban Development & Urban Housing Department in exercise of power conferred under Article 243P of the Constitution of India declaring inclusion of Vavdi Buzarg within the limits of Godhra Municipality as well as the same with Bhamaiya (West) within the limits of Godhra Municipality. Therefore, advocate for the petitions in both the petitions is the same i.e. learned advocate Mr. Vijay H. Patel for appearing HL Patel Advocates for respective petitioners and learned Government Pleader Mrs. Manisha Lavkumar Shah with learned Assistant Government Pleader Ms. Shruti Pathak for the State Government and learned advocate Ms. Krupa P. Soni for learned advocate Mr. Mehul H. Rathod for the respondent No.4.
3.1 I have heard learned advocate Mr. Vijay H. Patel for the petitioner in both the petitions. He has submitted Page 7 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 that the impugned notification dated 13.08.2015, for the inclusion of Vavdi Buzarg Gram Panchayat in the limits Godhra Municipality, is per se illegal and unconstitutional. The area of Vavdi Buzarg Gram Panchayat would remain unrepresented till the next general elections, which is contrary to the provisions of Article 243Q, 243R and 243S of the Constitution of India. He has submitted that the petitioner Gram Panchayat by Resolution No.29 dated 13.07.2015 has resolved and registered the protest to include the petitioner village in Godhra Village stating that most of the inhabitants of petitioner village are agriculturists and actively engaged in the agricultural activity and managing their livelihood. He has further submitted that more than 50% inhabitants of petitioner village are tribals and they are maintaining their livelihood by carrying out labour work and if the petitioner village is included in the limits of Godhra Municipality, the inhabitants of the petitioner village will be over-burdened by the unbearable taxes of the Municipality. He has Page 8 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 further submitted that even at the time of filing of petition, the Godhra Municipality has failed to provide basic amenities to its residents in the existing areas. He has further submitted that though the Jafrabad Village is having commerce college, five schools and more than 50 residential societies moreover, industrial training institute are also there, but even though there is initial proposal to include Jafrabad Village in the limits of Godhra Municipality. Somehow, the proposal was dropped subsequently by respondent No.1 for including Village Jafrabad and therefore, the action of the respondent authorities are not in accordance with law and it is further submitted by learned advocate Mr. Vijay Patel for the petitioner that though the powers are conferred with the State Government but the same shall be used with reasonableness. He has pointed out the provisions of the Constitution of India and more particularly, Article 243Q, the Constitution of Municipality is applicable and not Article 243P of the Constitution has any application and therefore, he submits that the notification is also Page 9 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 issued by invoking wrong provisions of the Constitution. He has further submitted that the Vavdi Buzarg Gram Panchayat has total population of 9107, Jafrabad Gram Panchayat has total population of 9685, Bhamaiya Gram Panchayat has total population of 8070 and Chikhodara Gram Panchayat has total population of 2513 and though there is proposal to include Jafrabad Panchayat in the limits of Godhra Municipality somehow the respondent No.1 has dropped the proposal and not included the Jafrabad Gram Panchayat, which amounts to colorable exercise of powers by the authorities. He has further pointed out that village panchayat has also passed the Resolution dated 13.07.2015 by which the Panchayat has opposed the inclusion of the village panchayat in the local limits of the Municipality. He has also pointed out that therefore, impugned action of the respondent authorities is not in accordance with law. 3.2 In support of his submissions, he has relied upon the decision of the Honb'le Apex Court in the case of Champalal Vs. State of Rajasthan and Others reported in Page 10 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 2018 (16) SCC 356 more particularly, para 3, 7, 8, 9, 10, 12 are relevant and has submitted that this is a question under Article 243Q(2) and therefore, he has submitted that the various other parameters, which is regarding adding that Article 243Q(2) were not taken into consideration before the issuance of the said notification. Therefore, he has prayed to allow the present petition and as the same contentions and the same question is involved in another petition i.e. Special Civil Application No.12467 of 2016 only the petitioner is different i.e. Bhamaiya (West) Gram Panchayat who has also challenged the same notification dated 13.08.2015, therefore, he has submitted the except some dates are different in passing of Resolution, the other averments are similar of this petitioner and therefore, the arguments which is advance by him in the present petition shall be treated in the arguments of Special Civil Application No.12467 of 2016 on behalf of the petitioner and that petition is also required to be allowed by considering the above arguments.
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C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 4.1 Per contra, learned advocate Mrs. Manisha Lavkumar Shah has submitted that the impugned notification which is issued by State Government is not by exercising power under Section 243Q(2) or any other provision of Article 243Q but it is issued by exercising the specific power under Article 243P(d) of the Constitution. She has further submitted that it is necessary to point out that along with the present petition of Vavdi Buzarg Gram Panchayat, no resolution is passed by the Village Panchayat about authorizing the person Monikaben Dharmendrasinh Rathod, who has affirmed the petition and claiming as Deputy Sarpanch, and therefore, on that count also the present petition of Vavdi Buzarg Gram Panchayat is required to be dismissed as not filed by authorized person, which is authorized by the provisions of Gujarat Panchayat Act. She has pointed out that another petition i.e. Bhamaiya (West) Gram Panchayat has passed a resolution by authorizing petitioner to file the proceedings. Therefore, Page 12 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 that point is not available in second petition about the authority to file the petition by the petitioner. It is further pointed out by learned advocate Mrs. Shah by challenging the notification that some dates are relevant for appreciating the facts of the petitions. She has drawn the attention of this Court towards communication dated 08.09.2014 by which the communication addressed to Director of Municipalities, Urban Development & Urban Housing Department for inviting proposals from the Nagarpalika's and Collector Offices to submit proposals, which are in the vicinity of "outgrowth" and which can be included within the Nagarpalika limits. She has pointed out that it was observed in that communication that there are 159 Nagarpalikas in existence in the state and over a period of time, there has been outgrowth with respect to the development and population of areas situated outside the limits of Nagarpalikas. Since, there was dearth with respects to the basic facilities to be made available to the residents, after thoughtful consideration, it was deemed fit to Page 13 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 include such areas within the Nagarpalikas limits and she has further pointed out that communication which is annexed with affidavit-in-reply, which is filed by the State in respective petitions. She has further pointed out that on 05.11.2014, the Director of Municipality has communicated to all the Nagarpalikas and Collectorate Offices to submit their respective proposals along with the population census of 2011, maps, etc. She has further pointed out that from the document annexed with the present petition that on 30.10.2014, the Godhra Municipality resolved to include four villages within its municipal limits.
(i) Jafrabad Gram Panchayat,
(ii) Vavdi Buzarg Gram Panchayat,
(iii) Bhamaiya (West) Gram Panchayatl
(iv) Chikhodara Gram Panchayat 4.2 Further, she has pointed out that Vavdi Buzarg Gram Panchayat has passed a resolution of objecting the inclusion of Vavdi Buzarg into Municipal Limits. Further, Page 14 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 she has pointed out that State Election Commission has passed an order for allocation of reserved seats to various Taluka Panchayat Constituencies and District Panchayat Constituencies. Further, she has pointed out that on 13.08.2015, impugned notifications is issued by Urban Development & Urban Housing Department in exercise of powers conferred under Article 243P(d) of the Constitution declaring the inclusion of Vavdi Buzarg Gram Panchayat with Godhra Municipality and the same is for the Bhamaiya (West) Gram Panchayat. Thereafter, Godhra Municipality has addressed communication to the Vavdi Buzarg Gram Panchayat and thereafter, the present petition i.e. Special Civil Application No.3740 of 2016 is filed by the Vavdi Buzarg Gram Panchayat and Special Civil Application No.12467 of 2016 is filed by Bhamaiya (West) Gram Panchayat. Further, after giving the above factual details about the process, she has pointed out from the affidavit-in-reply filed by the State Government that there is a preliminary objection raised in the reply about no resolution passed by the Panchayat Page 15 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 before filing of petition or no authority is given in the case of Vavdi Buzarg Gram Panchayat to the deponent to be shown on behalf of the Panchayat.
4.3 Further, she has drawn the attention of this Court towards various contentions raised in the affidavit in reply and also towards averments made in the memo of petition and has contended that part IX-A of the Constitution of India provides about Municipalities.
"Municipal area" is defined under Article 243P(d) of the Constitution of India, which reads as follows:
"Article 243P(d):
Municipal area means the territorial area of a Municipality as is notified by the Governor;
Article 243P(e):
"Municipality" means an institution of self-government constituted under article 243Q;
Article 243Q:
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 Page 16 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 area to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:
Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township.
(2) In this article, "a transitional area", "a smaller urban area" or "a larger urban area" means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in nonagricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part.
Therefore, she has submitted that in view of abovementioned definitions, it would reflect that whenever a local area is included in an existing municipality such area is notified by virtue of powers conferred under Article 243P(d). It is also required to be highlighted that a new municipality is not constituted by virtue of this Page 17 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 power, but a local area of panchayat is merely included or absorbed within the ambit of municipal limits. In the present case also, local area of Vavdi Buzarg Gram Panchayat as well as Bhamaiya (West) Gram Panchayat are also included in the existing Godhra Nararpalika by issuing the impugned notification. Therefore, the scope of inclusion of an area in existing municipality stands on a different footing then constitution of new municipalities is to be constituted under Article 243Q depending upon the different parameters.
4.4 Further, she has submitted that the impugned notification is issued in exercise of power under Article of 243P(d) of the Constitution of India. She has further submitted that exercise of including the municipal area is a legislative act. Further, she has submitted that for the purpose of declaration of any local area of village as municipal area in consultation with Gram Panchayats is not required as provided in Section 7 of Gujarat Panchayat Act. Further, she has submitted that at the Page 18 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 time of issuance of notification, the entire exercise provided under the law was carried out across several districts of the state for including the areas which is falling outside the Nagarpalika limits but was prone to development. Further, she has submitted that it was noticed by the Government that these areas lacked the basic facilities, therefore, for the larger interest of public, it was decided to include such areas in the Nagarpalika limits. It is submitted that the decision is taken by keeping in mind the several factors including the proposal, which is made by respective collectors, who have forwarded the details of geographical maps, population census, etc., has been duly considered while taking the decision and the notification was issued after taking into consideration the proposal forwarded and considering the aspect of population census, outgrowth and also the percentage of population, which is indulged into non-agricultural activity.
4.5 Further, she has submitted that this is not the case Page 19 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 to exercise the powers under Article 226 of the Constitution of India, which would be exercised only in the event of a decision taken is arbitrary or smacks with mala fide. Further, she has submitted that the respective petitioners have failed to establish or to justify the contention about the notification as bad or arbitrary. Further, she has submitted that there is no allegation or pleading with respect to mala fide. Further, she has submitted that otherwise also, the petition lacks merits and required to dismissed.
4.6 In support of her submissions, learned Government Pleader Mrs. Shah has relied upon the decisions of this Court in the case of Hansapur Gram Panchayat Versus State of Gujarat reported in 2016 (2) GLH 299 and has pointed out that this Hon'ble Court has considered the difference between Article 243P and Article 243Q and more particularly, para 9 and 10 is relevant. 4.7 Further, she has relied upon the judgment of this Court in the case of Karodiya Village Panchayat Page 20 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 Through Sarpanch Vs. State of Gujarat rendered in Special Civil Application No.7002 of 2022 and alide matters dated 07.05.2021, wherein the identical facts are emerging and more particularly paras 2, 3 and 28 are relevant and has submitted that in those petitions, every issue of consultation was raised by the petitioner which was also negated by this Court in those petitions. 4.8 Further, she has relied upon the judgment of Division Bench of this Court in the case of Adiwasi Mul Niwasi Sangathan Versus State of Gujarat reported in 2011 AIJEL-HC-243352, and has submitted that the policy decision to include villages and forming group Gram Panchayat for more than one or two villages for the convenience of revenue administration is in the realm of the policy decision taken at the ends of Government and therefore, by relying on above decisions, she has submitted that both the present petitions lacks merits as petitioners have failed to establish any arbitrariness and mala fide action and the petitions deserves to be Page 21 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 dismissed.
5. 3.2 In rejoinder to arguments made by Mrs. Manish Shah, learned Government Pleader for the State, learned advocate Mr. Vijay H. Patel has further submitted that in view of Section 7 of the Panchayat Act, the Government has to go for effective consultation with the concerned Village Panchayat before issuing such notification. Therefore, he has prayed that on that count also, the petition deserves to be allowed.
6. Learned advocate Ms. Krupa P. Soni for learned advocate Mr. Mehul H. Rathod for the respondent No.1 has submitted that since she is appearing for the Godhra Municipality and she has supported the submissions made by learned Government Pleader and adopting the arguments made by the learned Government Pleader on the factual aspects as well as on the submissions made on the aspects of law.
7.1 I have learned advocate for the respective parties. I Page 22 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 have perused the record and proceedings. 7.2 It transpires that the present issue involved in both the petitions are about the inclusion of Gram Panchayats in the local limits of Godhra Municipality by the impugned notification dated 13.08.2015. On the bare perusal of the notification, it clearly transpires that the notification is admittedly issued by exercising powers conferred by Clause (d) of Article 243P of the Constitution of India and Bhamaiya (West) Gram Panchayat are included by the said notification in the limits of Godhra Municipality. Considering the submissions made by learned advocate Mr. Vijay H. Patel for the respective petitioners, if we look at Article 243Q, which is reproduced herein above, the said provision pertains to constitution of municipality, therefore, the submission made by learend advocate Mr. Patel that it is required to be considered under Article 243(Q), is found apparently unjustified because the present issue is regarding the inclusion of some area of village panchayat in the limits of municipality and it is Page 23 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 not for formation of the new municipality and therefore, the powersm which is exercised under Article 243P(d) of the Constitution is prima facie found just and reasonable and more particularly, when this Court has considered the decision of this Court in the case of Hansapur Gram Panchayat (supra), more particularly para 1, 5, 8, 9 and 10, which reads as under:
"1. By the present petitions filed under Article 226 of the Constitution of India, the sarpanch of Matarvadi Gram Panchayat, Ramnagar Gram Panchayat and Hansapur Gram Panchayat with some residents of villages have challenged the notification dated 27th April, 2015 issued by the Government in exercise of the powers under Clause (d) of Article 243 P of the Constitution of India whereby the areas shown in the schedule attached with the notification of the said three panchayats are notified to be part of the Patan Municipality.
5. Learned A.G.P. Ms. Bhatt appearing for the Page 24 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 State and its authorities, learned Advocate Ms. Archita Prajapati appearing for learned Advocate Mr.M.P.Prajapati for the Taluka Development Officer and Talati of the Gram Panchayats and learned Advocate Mr. Dave appearing for the Municipality submitted that notifying any local area as municipal area in exercise of powers under Article 243(P)(d) is legislative act for which, principles of natural justice are not required to be followed. It is submitted that for declaring any local area of village a municipal area, consultation with the gram panchayat is not required as provided in section 7 of the Act. It is submitted that the areas of the Gram Panchayat which are now notified as municipal areas under the impugned notification are geographically surrounded and in the vicinity of the limits of the Patan Municipality, and, therefore, their inclusion in the limits of the municipality by declaring them as municipal areas became indispensable for the benefits of the residents of the said areas. They submitted that though the consultation with the Page 25 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 panchayats is not required, the consents from the Gram Panchayats were invited before deciding to declare local areas of the villages to be municipal area, however, since they objected, their objections were duly considered before taking the decision to declare the areas of the gram panchayats as municipal area which could be said to have satisfied the requirement of consultation with the gram panchayats. They submitted that the process for notifying many areas of the gram panchayats, various districts was on and in progress till the impugned notification was issued and, therefore, it could not be said that by the impugned notification, fresh decision was taken by the Government to notify the areas of the petitioners gram panchayats as municipal areas. They submitted that the impugned notification is in fact in public interest and since after due deliberation the decision is taken, this Court may not entertain the petitions in exercise of the powers under Article 226 of the Constitution of India. Page 26 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022
8. As per sub-section (2), recommendation for inclusion within or exclusion from any village any local area or alteration of limits of any village or cesser of any local area to be a village for exercise of powers under clause (g) of Art. 243 of the Constitution cannot be made without consultation with the panchayats. However, the question is whether such consultation is required when the exercise of powers is not for the purposes mentioned therein. The phrase "for exercise of his powers under clause (g) of article 243 of the Constitution" appears to be not of wide import but limits the consultation with the taluka panchayat, district panchayat or the village panchayat only when the powers under clause (g) of Article 243 of the Constitution of India are to be exercised for the purposes mentioned in sub section (2) of section 7 of the Act. Mr. Pandya however submitted that it is not possible to notify or declare any local area of the village to be municipal area under Article 243(P)(d) of the Constitution of India unless the prior cesser of Page 27 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 such local area in exercise of the powers under Article 243(g) is declared and, therefore, the notification under Article 243(g) of the Constitution of India must precede the issuance of notification under Article 243(P)(d) of the Constitution of India for which consultation is must and it thus comes to that before notifying any such area of village as municipal area, consultation with the panchayat is sine-qua-non. Such contention however, cannot be accepted in view of the clear language of section (2) of section 7 of the Act providing for consultation to recommend cesser of local area only to be a village for exercise of powers under Article 243(g) of the Constitution of India. The cesser of any local area of village contemplated if only for exercise of powers under Art. 243(g) the local area ceased will thus be recognized a village. Therefore, the consultation which is intended by the legislature by sub-section (2) of section 7 of the Act is only for the purposes provided therein and not for any other purpose.
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9. The difference between Article 243P and 243Q could be easily noticed. Article 243P provides for the definitions wherein the municipal area and the municipality are differently defined. As per Article 243P(d), municipal area means the territorial area of a Municipality as is notified by the Governor whereas as per Article 243P(e) of the Constitution, Municipality means an institution of self-government constituted under Article 243Q. Therefore, when any local area is to be included within the territorial limits of any existing municipality, such area could be notified by the Government in exercise of the powers under Article 243P(d) of the Constitution as municipal area so as to be the part of territorial area of the municipality. By such exercise of powers, the Government is not constituting any municipality for the first time. Article 243Q (1) of the Constitution provides that there shall be constituted in every State (a) a nagar panchayat for a transitional area, that is to say, an area in transition from a rural area to an urban area, (b) Page 29 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 a Municipal Council for a smaller urban area and
(c) a Municipal Corporation for a larger urban area. Article 243Q suggests to take into consideration various factors by the Government before constituting any municipality. However, no such provision for considering different factors is either made in Article 243P or in the Municipalities Act for declaring any local area as municipal area. Question still remains as to whether any local area of the village could be declared as municipal area just at the whims of the Government. Fair play in every action either administrative, executive or legislative is hall mark to confirm to the test of Art. 14 of the Constitution.
10. In the case of these three villages, how the decision was arrived was the question put to the learned A.G.P. and for that purpose, original file was called for. Learned A.G.P. Ms. Bhatt then made available the original file for perusal of the Court. On perusal of the file, the Court finds that Page 30 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 the proposal was moved by the concerned department with the recommendation of the Collectors of the different districts including the district of Patan for inclusion of areas of villages in municipality. Map showing survey numbers comprised in the panchayats of these three villages with the proposal and the resolution passed by the municipality for their inclusion in Patan Municipality were put up for consideration. It appears that the objections of the three gram panchayats and the recommendation of the Collector and of Director of Municipalities were also placed for consideration. It appears that since there were many proposals for other districts for inclusion of areas of different villages in the municipalities within the districts, at the first stage of consideration, when the first notification dated 28.1.2015 was issued, the areas of the present three villages recommended by the Collector were not included therein. However, it appears from the notings in the file that the process of consideration was on and it had not Page 31 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 reached finality and during the process, it was brought to the notice of the concerned authority and the Hon'ble Chief Minister that considering the out growth of Patan Municipality reached to these three villages, their areas were required to be included in the limits of Patan Municipality. It appears that though there were objections from the Gram Panchayats, considering the development of village areas and the facilities extended by Municipality and the geographical situation of the areas of these three villages, on further deliberation which appears to have taken place before the Hon'ble Chief Minister on 16th March, 2015, it was decided to include the areas of these three villages in the limits of Municipality which culminated in issuing impugned notification in exercise of the powers under Art. 243P(d) of the Constitution. For such process undertaken, the Court does not find any lack of fair play in exercise of powers under Article 243P(d) of the Constitution of India. As the impugned notification is issued as part of on going process for inclusion Page 32 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 of many areas of different villages in Municipality, it cannot be said that there was fresh decision for which impugned notification was issued. Therefore, decision in the case of Pruthvisinh Amarsinh Chauhan (supra) will have no application." In above quoted judgment, the difference between Article 243(P) and Article 243(Q) of the Constitution and Article 243 is clearly discussed, wherein the municipal area and municipality are differently defined. As per Article 243P(d) - municipal area means the territorial area of municipality as it is notified by the Governor whereas as per Article 243P(e) - municipality area means an institution of self government constituted under Article 243Q, therefore, when any local area is to be included within the territorial limits of any existing municipality, such area could be notified by the Government by exercising of the powers under Article 243P(d) of the Constitution of India as municipal area so as to be part of territorial area of the municipality. It clearly transpires that by such exercise of powers, the Page 33 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 Government is not constituting any municipality for the first time.
7.3 Further, Article 243Q(1) of the Constitution provides about transitional area that (a) an area in transition from a rural area to urban area, (b) a municipal council from a smaller urban area (c) a municipal corporation for a larger urban area. Article 243(Q) suggests to take into consideration various factors by the Government before constituting any municipality, however, no such provision for considering different factors is either made in Article 243P or in the Municipalities Act for declaring any local area as municipal area.
7.4 Further, it also transpires from the record that in the first petition, which is filed by the petitioner - Vavdi Buzarg Gram Panchayat, there is no resolution passed by the Panchayat for authorizing to deponent to file the present proceeding and therefore, on that count also the present petition is having basic defects under the law. Page 34 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022
C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 7.5 Further, it is relevant to note that this Court has decided the identical set of facts in the judgments of this Court in the case of (i) Hansapur Gram Panchayat (supra), and (ii) Karodiya Village Panchayat Through Sarpanch (supra), the above judgments are binding to this Court and I am of the considered opinion that the case of present facts and law involved in the respective petitions are squarely covered by the abovementioned two judgments, when the grounds which are urged by the present petitioners is neither established by the documents nor by the pleadings made in the petitions. On the contrary, it clearly transpires that the respective petitioners have failed to establish their case that action of the issuance of such notification is arbitrary or smacks with mala fide and it is noted that the petitioner has never pleaded or alleged about the mala fide in any of the petitions.
7.6 Further, it is also required under the law that the petitioners have to establish or justify that in what Page 35 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 manner, the notification is bad in law or arbitrary, which nothing is found on the record in support of that but on the contrary, the provisions of Article 243P(d) empowers the Government to include such area of the village panchayat in the municipal limits with a view to provide better facilities to the residents, and therefore, there is no ground made out by the respective petitioners in both the petitions which require any interference by this Court by exercising powers under Article 226 of the Constitution of India and petitioners have failed to establish any violation under Article 14, 19 and 21 or any other provisions of Constitution of India.
7.7 Further, it also reveals that the action of the Government is a policy decision to include villages in the municipal limit for the convenience of the administration, which is in the realm of the policy decision taken at the ends of Government, and therefore, I found that this is not a fit case to exercise my jurisdiction under Article Page 36 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 226 of the Constitution of India by interfering with the notification dated 13.8.2015 issued by the respondent authority and therefore, both the present petitions are required to be dismissed. Interim relief, which is granted earlier is vacated forthwith, with no order as to costs. FURTHER ORDER:-
8.1 When dictations both the present petitions are over, today i.e. 02.09.2022 in the morning, learned advocate Mr. Vijay Patel has submitted that since both the petitions are dismissed, the respective petitioners want to approach the higher forum and since the interim relief, which is granted by this Court in the respective petitions, is operating till the final disposal, therefore, he requests to extend the interim relief for further four weeks. In response to this submission, the learned Government Pleader Mrs. Manisha Lavkumar Shah with learned Assistant Government Pleader Ms. Shruti Pathak for the respective respondents has strongly objected about granting or extending such interim relief that this Court Page 37 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022 C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 has already dismissed both the petitions and petitions are pending since 2016.
8.2 Considering the overall aspects and more particularly the notification is issued in the year 2015 but due to the pendency of the petitions and interim relief is granted earlier which operated till 01.09.2022, the area of the respective Village Panchayats could not be included in the local limits of Godhra Municipality. In my opinion, the extension of interim relief will further delay the process of inclusion of areas in municipality.
Therefore, I am not inclined to extend the interim relief. Hence, the request for extension of interim relief is rejected.
9. For the reasons recorded above, the following order is passed.
9.1 Special Civil Application Nos.3740 of 2016 and 12467 of 2016 are dismissed, with no order as to costs. Page 38 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022
C/SCA/3740/2016 JUDGMENT DATED: 01/09/2022 9.2 Interim relief, granted earlier stands vacated. Notice is discharged.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 39 of 39 Downloaded on : Tue Sep 06 20:17:42 IST 2022