Gujarat High Court
Bhamaiya (West) Gram Panchayat vs State Of Gujarat on 9 March, 2023
Author: A. J. Desai
Bench: A.J.Desai, Biren Vaishnav
C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO.1226 of 2022
In R/SPECIAL CIVIL APPLICATION NO.12467 of 2016
With
CIVIL APPLICATION (FOR STAY) NO.1 of 2022
In R/LETTERS PATENT APPEAL NO.1226 of 2022
With
R/LETTERS PATENT APPEAL NO.1244 of 2022
In SPECIAL CIVIL APPLICATION NO.3740 of 2016
With
CIVIL APPLICATION (FOR STAY) NO.1 of 2022
In R/LETTERS PATENT APPEAL NO.1244 of 2022
In SPECIAL CIVIL APPLICATION NO.3740 of 2016
FOR APPROVAL AND SIGNATURE :
HONOURABLE THE ACTING CHIEF JUSTICE
MR. JUSTICE A. J. DESAI Sd/-
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV Sd/-
=========================================
1. Whether Reporters of Local Papers may be YES allowed to see the judgment ?
2. To be referred to the Reporter or not ? YES
3. Whether their Lordships wish to see the fair YES copy of the judgment ?
4. Whether this case involves a substantial YES question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
========================================= BHAMAIYA (WEST) GRAM PANCHAYAT Versus STATE OF GUJARAT ========================================= Page 1 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 Appearance :
1. Letters Patent Appeal No.1226 of 2022 MR DIPEN DESAI for the Appellant.
MS MANISHA LAVKUMAR, Government Pleader with Mr. Chintan Dave, learned Assistant Government Pleader for the Respondent Nos.1, 3 to 5. MS DIMPLE A THAKER for the Respondent No.2.
2. Letters Patent Appeal No.1244 of 2022 MR SHALIN MEHTA, Senior Counsel Assisted by Mr. Maharshi Vijay Patel for HL Patel Advocates for the Appellant. MS MANISHA LAVKUMAR, Government Pleader with Mr. Chintan Dave, learned Assistant Government Pleader for the Respondent Nos.1, 3 to 5. MS DIMPLE A THAKER for the Respondent No.2.
========================================= CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE A.J.DESAI and HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 09/03/2023 COMMON CAV JUDGMENT (PER : HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE A. J. DESAI)
1. The issue involved in these two appeals is as to "whether a Notification issued by the Governor only under Article 243 P(d) (Chapter IX A) of the Constitution of India requires any procedure to be followed as provided under Article 243 Q of the Constitution of India ?".
2. The parties have appeared through their advocates and with their consent, the appeals have been finally decided.
3. ADMIT. Learned Assistant Government Pleader waives service of admission on behalf of respondent Nos.1, 3 to 5 and Ms. Dimple A. Thaker, learned advocate waives service of admission for respondent No.2 in both the appeals.
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4. The short facts arise from the record are as under :-
5. That the appellants, namely, Bhamaiya (West) Gram Panchayat and Vavdi Buzarg Gram Panchayat challenged Notification dated 13.8.2015 issued by the Urban Development and Urban Housing Department, Government of Gujarat exercising its powers conferred by Clause (d) of Article 243P by which it notified several areas shown in the Schedule annexed thereto as the areas of municipal areas of Godhra Municipality and further declared that those areas shall form the part of Godhra Municipality which also included areas of Bhamaiya (West) Gram Panchayat and Vavdi Buzarg Gram Panchayat in Godhra Municipality.
6. Being aggrieved with the said Notification, Bhamaiya (West) Gram Panchayat and Vavdi Buzarg Gram Panchayat have preferred two writ petitions challenging the said Notification on several grounds. Learned Single Judge while admitting the said petitions stayed the operation, implementation and execution of the impugned Notification. The Urban Development and Urban Housing Department filed affidavit-in-reply on 8.6.2018 in the writ petitions and opposed grant of relief prayed for by the appellants - original petitioners.
7. Learned Single Judge by impugned common judgment dated 1.9.2022, after considering the constitutional provisions and by relying upon several decisions, dismissed the writ petitions by holding that the State Authority has rightly exercised legislative power under Article 243P (d) of the Constitution of India.
8. Hence the present appeals.
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9. By an oral order dated 22.9.2022, the Division Bench of this Court directed the State Authorities to make available the original file which has culminated in issuance of the impugned Notification. It was further observed in the said order that the steps taken, if any by State, would be subject to the result of the appeals. Accordingly, file containing original papers is placed before us.
10. Mr. Shalin Mehta, learned Senior Counsel assisted by Mr. Maharshi Vijay Patel, learned advocate appearing for HL Patel Advocates for the appellant would submit that Chapter IX-A of the Constitution of India was amended by 74th Amendment Act, 1992 and was made effective on 1.6.1993. He would further submit that Article 243P is defining Article wherein now various words which are used in Chapter IX A to be read and interpreted. Chapter IX A consists of Article 243P to 243 ZG. The respondent authority had issued the impugned Notification under Article 243P (d) which define the territorial area of Municipality as is notified by the Governor, whereas Municipality has been defined under Article 243 P(e) i.e. as an institution of self-government constituted under Article 243 Q. He would further submit that when particular area of village or entire village is required to be included in municipal area and ultimately included in the area of Municipality, it would be a constitution of Municipality itself since the area of Municipality would increase. He would further submit that even if certain area of Municipality is to be decreased, it would result into forming part of the new village Panchayat or any other legal entity.
He would further submit that it is true that Governor Page 4 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 has legislative power to declare particular area as Municipal area as per the definition of Article 243P (d). However, only exercising the powers under that provision, a particular area or a Village panchayat cannot be included in an existing Municipality which is defined under Article 243P (e) of the Constitution of India. As per the definition of Municipality, a Government can constitute a municipality as an institution of Self-Government only under Article 243Q and, therefore, when the Municipality is to be constituted, it can be constituted by the Government only considering the population of that area, the density of population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as deemed fit and it shall be specified by public notification for the purpose of Part IX A of the Constitution. He would further submit that in view of the above provisions, the respondent Authority was supposed to examine the aforesaid various aspects and, therefore, appropriate information ought to have been collected from the Panchayat and after deliberating the same with the Panchayat, Notification could have been issued only under Article 243Q of the Constitution. In the case of present two Village Panchayats, the respondent - Government never called upon Panchayat to submit the details or any objection with regard to inclusion of their Village Panchayat in Godhra Municipality. However, he would submit that having come to know that the Village Panchayat is likely to be included in the Godhra Municipality and legal status of Village Panchayat would vanish and would be a part of Godhra Municipality, a Resolution was passed by one of the appellant Gram Panchayat, namely, Vavdi Buzarg Gram Panchayat resisting the same whereas another appellant Gram Panchayat, namely, Bhamaiya (West) Gram Page 5 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 Panchayat, could not file any objection about the Notification of inclusion of the entire village into Godhra Municipality.
He would further submit that the learned Single Judge has relied upon an oral order dated 26.8.2015 passed by the Division Bench of this Court in Letters Patent Appeal No.1077 of 2015 in Special Civil Application No.8877 of 2015 and cognate appeals in view of the fact that subsequent to the aforesaid decision, the Hon'ble Apex Court in a case of Champa Lal v. State of Rajasthan and others, reported in 2018 (16) SCC 356 has clearly held that if there is a constitution of Municipality or upgradation of area to Municipality, procedure is required to be followed under Article 243Q (2) of the Constitution and Governor has no absolute discretion in constitution or upgradation of Municipality unless the parameters mentioned in article 243Q (2) are complied with. In the present case, inclusion of village Panchayats amounts to upgradation of Municipality. Therefore, the respondent authority ought to have followed the procedure which is lacking in the present case. He would further submit that it is not the case of State authorities or even argued that there is typographical error in mentioning the provisions of Constitution when the Notification was issued with regard to inclusion of Gram Panchayats. However, even if the affidavits filed by the State authorities and the communication dated 28.4.2015 issued by the Collector Panchmahals at Godhra to Director of Municipalities, State of Gujarat, having check-list of allegedly considered various aspects enumerated under Article 243Q (2), the State authorities have only considered the population of village and, therefore, on that count also, the Notification is bad in the eyes of law and required to be quashed and set aside.
Page 6 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 10.1 Mr. Mehta would further submit that the Notification challenged in the writ petitions has been issued in the year 2015. However, considering the ratio laid down by the Hon'ble Apex Court in the case of Champa Lal (Supra), whenever an issue arise about inclusion of Village Panchayat into Municipality or Municipal Corporation, the Notifications have been issued only under Article 243Q of the Constitution and that too following the procedure and it is the consistent submission made on behalf of the State of Gujarat in similar type of cases before this Court that for inclusion of Panchayats into a Municipality / Corporation, after following the procedure, Notification has been issued under Article 243Q (2) of the Constitution of India. Therefore, in the present case, the stand taken by the respondent - State is contrary to the stand taken in similar type of cases before this Court. In support of his submissions, he has relied upon unreported decision of this Court in the case of Karodiya Village Panchayat through Sarpanch v. State of Gujarat, delivered by learned Single Judge on 7.5.2021 in Special Civil Application No.7002 of 2020 and allied group of petitions. By taking us through the relevant paragraph of the said decision, he would submit that the State Authorities intended to include certain village Panchayat as a part of Vadodara Municipal Corporation and, therefore, after following the procedure prescribed under Article 243Q (2), Notifications were issued which were challenged on its own grounds. By taking us through paragraphs 10 and 14 of the said decision, he would submit that it was the stand of the State of Gujarat that Governor has power to issue Notification of inclusion of Gram Panchayat into Corporation / Municipality only under Article 243Q of the Constitution of India and all factors were considered as provided Page 7 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 therein. Considering the facts and circumstances of the case and the issuance of Notification under Article 243Q (2), the petitions were dismissed. He, therefore, would submit that the Notifications issued under Article 243P (d) are required to be quashed and set aside and consequently, the impugned judgment and order passed by learned Single Judge is required to be interfered with.
10.2 Mr. Mehta has also relied upon the decision of the Division Bench of Allahabad High Court in the case of Sujit and five others v. State of U.P. and two others in Writ Petition (C) No.26793 of 2022 delivered on 27.9.2022 and would submit that the Division Bench has in terms has held that inclusion or exclusion of area of Municipality can be made only under Article 243Q.
11. On the other hand, Ms. Manisha Lavkumar, learned Government Pleader appearing for the respondents has vehemently opposed these appeals and supported the decision rendered by learned Single Judge. In no uncertain terms, she would submit that the impugned Notifications have been rightly issued under Article 243P (d) since the Governor has power to issue such Notification only in that proceedings. She would further submit that it is a legislative power of Government to notify certain areas as Municipality and, therefore, any area including a Village Panchayat can be declared as Municipality area defined as municipal area under Article 243P (d). She would further submit that Article 243Q is empowering to constitute a Village Panchayat for rural area, for a transitional area, a Municipal Council in similar urban area and the Municipal Corporation for larger urban area. In the instant case, the Government is not constituting a Municipality and, Page 8 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 therefore, there is no need to follow the mandatory provisions of sub-Clause (2) of Article 243Q of the Constitution of India.
11.1 She would further submit that the submissions made on behalf of the appellants - Panchayats that they had no occasion to raise their objections about inclusion of the Panchayat in Godhra Municipality is concerned, the Governor having legislative power is not required to give opportunity of hearing to Panchayat through any representative. She would further submit that power under Article 243P(d) and 243Q are of legislative nature and, therefore, there is no need to give opportunity of hearing.
11.2 She would further submit that in the case of Matarvadi Gram Panchayat v. State of Gujarat and others delivered in Letters Patent Appeal No.1077 of 2015 on 26.8.2015, the Division Bench has clearly held that if any area is to be declared as the Municipal area, Article 243P(d) would be attracted and, therefore, learned Single Judge has committed no error in upholding the validity of the Notification which has been issued under Article 243P(d). She would submit that it has been clearly held that the Government has power to notify the Municipal Area only under Article 243P (d). Therefore, the learned Single Judge has committed no error in dismissing the petitions. She has also relied upon the decision of the Hon'ble Supreme Court in the case of State of Punjab v. Tehal Singh and others, (2002) 2 SCC 7. She would further submit that it has been clearly held by the Hon'ble Apex Court that there is no need to give an opportunity of hearing to the residents of the area excluded or included from Gram Sabha.
Page 9 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 11.3 She has also relied upon the decision of the Hon'ble Apex Court in the case of New Okhla Industrial Development Authority v. Chief Commissioner of Income Tax and others, (2018) 9 SCC 351. By taking us through paragraph 31 of the said decision, she would submit that it has been held that the Municipality can be constituted under Article 243 Q (1) and the Government has power to declare the territorial area of Municipality to be notified as Municipal area. Therefore, the State Government has rightly exercised its power under Article 243 P(d).
11.4 Ms. Shah has also taken us through the original files wherein important notings have been made by several Officers of which typed translated copies have been supplied, and would submit that even otherwise, the Government has considered several aspects before inclusion of two Village Panchayats - appellants herein into Godhra Municipality and, therefore also, the appeals may be dismissed.
12. We have heard learned advocates appearing for the respective parties, perused the judgment impugned in these appeals. We have also gone through the original files which were ordered to be placed before this Court for perusal. We have also compared the typed copies of the relevant notings supplied by the learned Government Pleader. It is an undisputed fact that the Notification dated 13.8.2015 came to be issued in exercise of its powers conferred by Clause (d) of Article 243P of the Constitution of India. The preamble of the Notification reads as under :-
"In exercise of the powers conferred by clause (d) of article 243P of the Constitution of India, the Page 10 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 Government of Gujarat hereby notifies the areas as shown in the Schedule annexed hereto, as the areas of municipal areas of Godhara Municipality and that the said areas shall form the part of the Godhara Municipality.
The Government land situated within the revenue surveys of the area specified shown in Schedule shall not vest in the Godhara Municipality."
13. Since there is insistence on the part of the Government Pleader that there is no mistake in referring the Article while issuing the Notifications, it would be relevant to reproduce relevant provisions of the Constitution of India. Chapter IX A of the Constitution deals with Municipality which includes Article 243P to 243 ZJ. Relevant Articles in the present case are 243P and 243Q which reads as under :-
"243P. Definitions :- In this Part, unless the context otherwise requires,
(a) "Committee" means a Committee constituted under article 243S;
(b) "district" means a district in a State;
(c) "Metropolitan area" means an area having a
population of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous areas, specified by the Governor by public notification Page 11 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 to be Metropolitan area for the purposes of this Part;
(d) "Municipal area" means the territorial area of a Municipality as is notified by the Governor;
(e) "Municipality" means an institution of self government constituted under Article 243Q;
(f) "Panchayat" means a Panchayat constituted under Article 243B;
(g) "population" means the population as ascertained at the last preceding census of which the relevant figures have been published."
"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 Page 12 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township (2) In this article, a transitional area, a smaller urban area or a larger urban area means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part"
14. Article 243P is defining Article. The Governor may notify particular area as Municipal area. However, when the Village Panchayat is to be made part of Municipal Council (Municipality) or Municipal Corporation, as the case may be, the Government is supposed to examine several aspects like population of that area, the density of population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as deemed fit since entire Gram Panchayat looses its legal status and becomes part of the Municipality. It is true that the Division Bench of this Court in the case of Matarvadi Gram Panchayat (Supra) has held that declaration of a Municipal area would follow within the limits of a Municipality, Article 243P (d) would be attracted. However, close reading of paragraph 12 of the Page 13 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 said decision, it appears that in the said case, the declaration of intention of inclusion of area of villages into municipality area was published and objections and comments were invited which is lacking in the present case. Paragraph 12 of the said decision reads as under :-
"12. Therefore, if any area is to be declared as the municipal area, which may fall within the limits on any municipality, Article 243P(d) would be attracted. Further, the action for notifying the area as municipal area by the Governor appears to be a legislative power to be exercised by the Governor. Once the action is a legislative function, at the most, it may require consideration of objections or inviting views from the persons affected. In the present case, after the declaration of the intention to include the area of village into the municipal area, the objections/comments were invited. It is not the case of the appellants that the objections/comments were not invited. Thereafter, the views were received by the Government and such objections/comments were considered. After consideration thereof, the notification has been issued in exercise of the power under Article 243P(d) of the Constitution. In our view, Article 243Q of the Constitution would have no applicability in the present case inasmuch as there was no question of any area of nagar panchayat to be declared as transitional area since the gram panchayat very much existed in the area of respective villages nor there was any question of constitution of any Page 14 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 municipality for the first time. It is an admitted position that the Patan Municipality did exist for its municipal area as prevailing then. Therefore, when Article 243Q has no applicability, the contention raised cannot be accepted."
15. Apart from this aspect, subsequent to the aforesaid order, the Hon'ble Apex Court in the case of Champa Lal (Supra) has dealt with the provisions of Article 243P(d) as well as 243Q of the Constitution of India. It has been held by the Hon'ble Apex Court that Article 243 contemplates the constitution of three different categories of bodies known as (i) Nagar Panchayat or transitional area, (ii) Municipal Council in similar urban area and
(iii) Municipal Corporation for larger urban area and after examining the provisions of Article 243Q(2), it has been held that in upgrading the village Gram Panchayat to be a Nagarpalika, relevant requirements are required to be mentioned in a Notification, which is clearly lacking in the present case. For our consideration, relevant paragraphs No.5 to 10 of the said decision are reproduced as under :-
"5. The establishment of municipalities and their organisations is governed by Part IX A (consisting of Articles 243P to 243ZG) of the Constitution of India inserted in the Constitution by the Constitution 74th (Amendment) Act, 1992 with effect from 1.6.1993. Article 243P (e) defines the expression "Municipality"
to mean an institution of self-government constituted under Article 243-Q. Article 243-Q of the Constitution of India declares as follows :-
Page 15 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 "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 smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in accordance with provisions of this Part:
Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit by public notification, specify to be an industrial township. (2) In this article, "a transitional area", "a smaller urban area" or " a larger urban area" means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part."
6. Article 243Q contemplates the constitution of three different categories of bodies known as (i) Nagar Panchayat for a transitional area, (ii) Municipal Council for a smaller urban areas and (iii) Municipal Corporation for a larger urban area.
7. It is declared under Article 243Q(2) that the expressions "a transitional area", "a smaller urban area" and "a larger urban area" (hereinafter collectively referred to as "AREAS") would mean such areas as may be specified by the Governor by a public notification for the purpose of Part IX A of the Constitution of India. Article 243Q (2) further obligates the Governor to have due regard to the various factors Page 16 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 mentioned therein before specifying the AREAS i.e. population of the area, the density of the population, the revenue generated in the area for local administration, percentage of employment in non- agricultural activities, the economic importance or such other factors as he may deem fit.
8. It, therefore, appears from the scheme of Article 243Q(2) that the Governor is not free to notify 'AREAS' in his absolute discretion but is required to fix the parameters necessary to determine whether a particular AREA is a transitional area or a smaller urban area or a larger urban area with due regard to the factors mentioned above. It is implicit that such parameters must be uniform for the entire State. It is only after the determination of the parameters, various municipal bodies contemplated under Article 243Q(1) could be constituted.
9. In response to a specific query whether any notification contemplated under Article 243Q (2) had been issued by the State of Rajasthan, Mr. Guru Krishnakumar learned senior counsel appearing for the State of Rajasthan, produced two notifications dated 4.7.1995 and 30.4.2012. On a plain reading of both the notifications, it appears that these notifications had been issued in exercise of the statutory powers conferred on the State Government by two different enactments known as "The Rajasthan Municipality Act, 1959 (since repealed) and the Rajasthan Municipalities Act, 2009. Apart from the declaration regarding the source of power for the issuance of these notifications to be authority conferred by the various provisions of the above mentioned two enactments, it appears from the tenor and scheme of the notifications that these Page 17 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 notifications purport to classify municipalities only on the basis of population. The various other parameters to which regard is required to be had under Article 243Q (2) were not taken into consideration for the purpose of classification made under the above mentioned two notifications. Therefore, in our opinion, these two notifications cannot be treated as notifications contemplated under Article 243(Q)(2).
10. In the absence of any notification which meets the requirements of Article 243Q(2), the entire exercise undertaken by the State of Rajasthan in upgrading the Napasar village Gram Panchayat to be a Nagarpalika - [that is equivalent to Nagar Panchayat as mentioned in Article 243Q(1)(a) is unconstitutional as it is inconsistent with the requirements of the Constitution under Article 243Q of the Constitution of India. Therefore, the initial notification dated 6.10.2008 itself is unsustainable. Unfortunately, this aspect has not been noticed by the High Court obviously because it was not brought to the notice of the High Court. The fact that a litigant before the court does not point out the relevant principles and provisions of law does not prevent the court from examining the issues involved in the lis, more particularly, when the process which is the subject matter of litigation before the court is inconsistent with the mandate of the Constitution. It is a settled principle of law that courts are bound to take note of the constitution and the laws."
16. We find substance in the arguments advanced by learned Senior Counsel Mr. Shalin Mehta that if there is inclusion or exclusion of a Panchayat into Municipality or exclusion of part of the area of Municipality, the provisions of Article 243Q (2) are Page 18 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 required to be followed. The same issue has been dealt with by the Division Bench of Allahabad High Court in the case of Sujit (Supra). Paragraph 5 of the said decision is relevant for our consideration and the same is reproduced as under :-
"5. The Notification dated 22.7.2022 has been issued in exercise of power under clause (2) of Article 243Q of the Constitution of India, read with subsection (2) of Section 3 of the U.P. Municipalities Act, 1916. This, provision, as would be clear from a bare perusal, confers power in the Governor to issue a subsequent notification under clause (2) of Article 243Q of the Constitution of India, thereby including or excluding any area, in or from a transitional area, or a smaller urban area. The notification gives final shape to the draft notification, thereby concretizing the proposal for inclusion of ten villages in the transitional area of Nagar Panchayat, Badahalganj, District Gorakhpur."
17. Apart from this aspect, we have gone through the original files and translated copy of those notings and the proposal made by the Collector, Panchmahals at Godhra vide his communication dated 28.4.2015 along with the information supplied to the State of Gujarat. Even the relevant aspect enumerated under Article 243Q (2) are also lacking in the present case. It is also pertinent to note that in recent past, the State Authorities are emphatically submitting before this Court in various matters that they have followed the procedure provided under Article 243Q (2) before inclusion of a Panchayat into a Municipality, one of such decision in the case of Koradiya Village Page 19 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 Panchayat (Supra) where situation has arisen and specific averments have been made on behalf of the Government Pleader. Relevant paragraphs 10 and 14 of the said decision are reproduced as under :-
"10. 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 Page 20 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 inclusion of the areas of panchayats into the limits of the VMC is considered. It was submitted that neither the provisions of Gujarat Panchayat Act, 1993 nor the provisions of Gujarat Provincial Municipal Corporations Act, 1949 provides for applicability of principles of natural justice.
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 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 Page 21 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 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."
18. The State Government has emphatically submitted before the Court that all procedure have been followed before inclusion of a Panchayat. In view of the above, we are of the opinion that the stand taken by the Government in the present proceedings for the Notifications which were issued way back in the year 2015 impugned in the present proceedings and the stand taken nowadays are contradictory in nature.
19. Though it is submitted by Ms. Shah, learned Government Pleader that no personal hearing is required before exercising powers under Article 243P and 243Q, even it is not the case of the appellants herein. However, it is an undisputed fact that the authority is required to justify the reasons for inclusion or exclusion of area of a Panchayat into Municipality stated under Article 243Q (2) which is completely lacking in the present proceedings.
20. In view of the above, we are of the considered opinion that the appeals require consideration and accordingly, both the appeals stand allowed. The impugned common judgment dated Page 22 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023 C/LPA/1226/2022 CAV JUDGMENT DATED: 09/03/2023 1.9.2022 rendered by learned Single Judge in Special Civil Application No.12467 and 3740 of 2016 is hereby quashed and set aside. Consequently, the Notification No.KV 246 OF 2015 NPL/112014/5638/M dated 13.8.2015 issued by the Urban Development and Urban Housing Department, Government of Gujarat is also quashed and set aside. Connected civil applications also stand disposed of.
It is needless to state that the respondents may exercise its power by issuing fresh Notification after following the requirement enumerated under Article 243 Q (2) of the Constitution of India.
(A. J. DESAI, ACJ) (BIREN VAISHNAV, J) SAVARIYA Page 23 of 23 Downloaded on : Thu Mar 09 20:50:06 IST 2023