Gujarat High Court
Junagadh Municipality vs State Of Gujarat on 8 October, 2003
Equivalent citations: (2003)3GLR2663
Author: K.A. Puj
Bench: K.A. Puj
JUDGMENT K.A. Puj, J.
1.The present petition is filed under Article 226 of the Constitution of India challenging the action of the State Government to constitute Junagadh Municipal Corporation before the tenure/duration of the petitioner No.1 Municipality is over and that too, without dissolving the Municipality and without giving a reasonable opportunity of hearing to the petitioner No.1 Municipality. During the pendency of this petition, the petitioner has also moved draft amendment whereby the petitioner has prayed for quashing and setting aside the Notification No. KV-125/02/MNA/1001-CMR-41(i)P dtd. 13.09.2002 constituting the Municipal Corporation for the city of Junagadh and appointing the Collector as an Administrator of the Municipal Corporation.
2.The petitioner has further prayed for quashing and setting aside the Notification dtd. 16.12.2002 whereby the Administrator was directed to exercise all the powers and perform all the functions and duties of the authorities referred to in Items (i) to (iv) of Sub-paragraph (a) of Paragraph 22 in Part IV of Appendix IV to the B.P.M.C. Act during and from the period of his appointment i.e. 15.09.2002 as Administrator and Municipal Commissioner.
3.In C.A. No. 6110/2003 the petitioner has sought direction from this Court to the respondent authorities to restrain Shri R.K. Pathak, IAS, to work as an Administrator & Municipal Commissioner of Junagadh Municipal Corporation with effect from 14.09.2003 by staying further execution operation and implementation of the Notification dtd. 13.09.2002.
4.The brief facts giving rise to the present petition are that the petitioner No.1 is a Municipality duly constituted under the Provisions of the Gujarat Municipalities Act, 1963. The petitioner Municipality was having a duly elected body for the period of five years and the tenure of that body expires in 2005. The Taluka Development Officer, Junagadh has sent letters on 01.04.2002 to 8 Gram Panchayats calling upon them to pass necessary resolutions regarding their inclination of inclusion of their respective Gram Panchayats in the proposed Municipal Corporation for the city of Junagadh. All the Panchayats have unanimously passed resolution on or around 05.04.2002 expressing their displeasure and objection to any proposed inclusion into the proposed Municipal Corporation limits. Some of the Gram Panchayats apprehended that the Corporation would be constituted, have preferred S.C.A. No. 4714/2002 before this Court and the same came to be disposed of by this Court (Coram :- M.S. Shah, J.) on 10.05.2002 directing that the representation dtd. 05.04.2002 made by the said Gram Panchayats shall be considered before issuance of any Notification by the State Government for constituting Municipal Corporation for the city of Junagadh.
5. So far as petitioner No.1 Municipality is concerned, the party governing the same, prior to the constitution of Municipal Corporation for the city of Junagadh has got 2/3rd majority in the election and is different from the ruling party in the State and it was apprehended by the said party that the State Government by using and resorting to undemocratic means, was making all attempts to ensure that the present body having majority was undemocratically thrown out. With a view to achieve this object, a show cause notice was issued under Section 263 of the Gujarat Municipalities Act for dissolution of the Municipality. The said Notice was challenged by the Municipality before this Court in S.C.A. No. 6354/2002 which came to be disposed of by an order dtd. 18.07.2002 (Coram :- D.A. Mehta, J.) directing the respondent authorities to take into consideration the reply that would be filed by the petitioner on merits and after giving an opportunity of being heard, if so demanded, it would be open to the respondents to pass appropriate order within a reasonable time. It was also made very clear that if any order of supersession is passed by the respondents, the same would not be implemented for a period of ten days from the date of its receipt by the Municipality.
6.Some of the Gram Panchayats have earlier filed S.C.A. No. 4174/2002 before this Court and again approached to this Court by way of filing S.C.A. No. 6490/2002 which was dismissed by this Court vide order dtd. 17.07.2002 holding that the petition could not be entertained at that stage, against which the said Panchayats have preferred LPA No. 543/2002 before this Court and the Division Bench of this Court has issued Notice on 06.08.2002. During the pendency of this LPA, the State Government has issued a Notification constituting the Municipal Corporation for the city of Junagadh. One Shri Vijay Rupani, Chairman of Twenty Point Programme Implementation Committee and who is Prabhari of B.J.P. for Junagadh District held a press conference on 13.09.2002 in the Circuit House at Junagadh informing the press that the State Government has already issued a Notification constituting Junagadh Municipal Corporation and the elected body would come to an end from 15.09.2002.
7. It is in the above background of the matter, the present petition is filed by the petitioners before this Court challenging the action of the State Government in constituting the Municipal Corporation for the city of Junagadh and taking other consequential actions.
8. Mr. N.D. Nanavati, learned Senior advocate appearing for the petitioners along with learned advocate Mr. Hriday Buch submits that the action of constituting the Municipal Corporation for the city of Junagadh is nothing but flouting the constitutional mandate and disregarding the statutory Provisions. He has submitted that Article 243-U of the Constitution of India contains a Constitutional mandate that every Municipality shall continue for five years from the date of its first meeting. The only exception permissible under the Constitution of India to curtail the tenure of Municipality is when the Municipality is dissolved under any law for the time being in force. However, under proviso to Article 243-U(1) of the Constitution of India, there is a Constitutional mandate that before effecting any dissolution of the Municipality, the Municipality shall be given a reasonable opportunity of being heard. He has further submitted that the petitioner No.1 Municipality's first meeting was convened on 20.01.2000 and under the constitutional mandate, the petitioner No.1 Municipality is entitled to continue upto 19.01.2005. He has submitted that the constitution of a Municipal Corporation inevitably has the effect of dissolution of the petitioner No.1 Municipality and such dissolution is not only contrary to the constitutional mandate contained in Article 243-U of the Constitution of India, but is apparently contemptuous and in willful disregard of the order passed by this Court.
9. Mr. Nanavati has further submitted that the petitioner No.1 is a "Municipality" as defined under Article 243-P(e) of the Constitution of India and it is a "smaller urban area" within the meaning of Art. 243-Q(1)(b) of the Constitution of India. As per the Provisions contained under Art. 243-R of the Constitution of India, all the seats in a Municipality are required to be filled by persons chosen by direct election from the territorial constituencies in the Municipal areas and accordingly, the petitioner No.1 is constituted by way of direct election on 04.01.2000. As per the constitutional mandate contained in Art. 243-U of the Constitution, the tenure of the Municipality is for a period of five years i.e. upto 19.01.2005.
10. Mr. Nanavati has further submitted that by virtue of the Constitution (Seventy Third Amendment) Act, 1992 and Constitution (Seventy Fourth Amendment) Act, 1992, the legislature incorporated several provisions contained respectively in Part - IX and Part-IX-A whereby the local self Government is sought to be constitutionally codified and regulated with an object of enabling such local self-Government to function as autonomous institutions depending upon the nature of area i.e. rural area, urban area or an area in transition from rural are to urban area. Before the introduction of the aforesaid Amendment Acts in the Constitution of India, it was an exclusive domain of the State Government to specify a particular area to be a city for which Municipal Corporation can be constituted. Prior to this amendment, the term "city" was defined under Section 2(8) of the BPMC Act. He has further submitted that after the amendment as per the Constitutional scheme the powers to notify a particular area which would ultimately become either a Nagar Panchayat (for transitional area) or a Municipal Council (for a larger urban area) or Municipal Corporation (for a larger urban area) is exclusively conferred upon the Governor of the State taking away the powers which were being exercised by the State Government prior to the Amendments. He has further submitted that in light of the change made in the Constitutional scheme as well as statutory Provision, the power which has so far been exercised by the State Government which was an unguided power came to be conferred by the Constitution upon the Governor and the State Government and the said power is constitutionally made subject to the fulfillment of the mandatory requirements. Under Article 243-Q(2) of the Constitution of India before declaring any area either to be transitional area, smaller urban area or larger urban area, the Governor is under Constitutional obligation to apply his mind and come to an objective satisfaction about the existence of a need to declare an area to be either a transitional area or a smaller urban area or a larger urban area. The Governor of the State is required to examine, adjudicate and apply his mind on this question, having regard to the parameters provided by the Constitution itself, which interalia includes the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of non-employment in non-agricultural activities, the economic importance of the area or such other factors. It is only after considering these factors and parameters based upon the objective facts, the Governor can take such decision in the matter.
11. Mr. Nanavati has further submitted that under the Constitution, except those powers which are required to be exercised by the Governor himself in his own discretion, remaining powers are required to be exercised as per the aid and advise of the Council of the Ministers and such decision of the Council of Ministers are required to be expressly taken in the name of the Governor. A perusal of Articles 163, 166 and 243-Q(2) of the Constitution of India makes it abundantly clear that the powers to constitute Municipal Corporation are conferred exclusively upon the Governor of the State which the Governor is required to exercise directly as per his own discretion and after himself satisfying about the existence of the factors mentioned in Article 243-(Q)2 of the Constitution of India.
12. It is in the above light of the Constitutional Provisions, Mr. Nanavati has invited the Court's attention to the factual matrix of the case. The Cabinet in its meeting held on 10.07.2002 has taken a decision on the Note placed before it to constitute a Municipal Corporation for Junagadh comprising therein the existing Municipal area of Junagadh Municipality and the areas comprised in 11 village Panchayats. The only formality left was publication of a Notification in that behalf and constitution of a nominated Corporation as provided under Clause-22 of Part-IV of Appendix-IV of the BPMC Act.
13. Mr. Nanavati has further submitted that as stated earlier, the State Government initially approved the idea of constituting a Municipal Corporation wherein the areas of 8 Village Panchayats were also included in the proposed Municipal Corporation. However, as those Panchayats initiated proceedings before this Court against the constitution of such Corporation, the areas within the limits of those village Panchayats were excluded, whereupon there was no reason for declaring the areas of petitioner Municipality as a larger urban area as none of the factors under Art. 243-Q(1)(2) of the Constitution of India are satisfied. However, only with a view to achieve political goals and with a view to see that the petitioner Municipality was dissolved, without following the mandatory procedure provided by the Constitution of India was given a go bye.
14. Mr. Nanavati has further submitted that neither the Constitution nor the Provisions of the BPMC Act empowers the State Government to appoint the Collector as an Administrator of a Municipal Corporation as the Collector of a District is not an authority under the Provisions of the said Act. Therefore, there was no reason for the State Government to appoint the respondent No.2 as an Administrator of the Municipal Corporation though the term of the office bearers of the petitioner Municipality is expiring in January, 2005. He has, therefore, submitted that if at all, Municipal Corporation is required to be constituted for the city of Junagadh, the only course open to the State Government was to appoint the present office bearers of the petitioner Municipality as office bearers of the Municipal Corporation, as no procedure of giving an opportunity of hearing was followed by the State Government. He has, therefore, submitted that the impugned Notifications are issued by the State Government in malafide exercise of powers and with a view to achieve political goals and hence, the same are required to be quashed and set aside.
15. Mr. Nanavati has further submitted that in addition to the impugned Notifications constituting the Municipal Corporation for the city of Junagadh as well as complying the Provisions of BPMC Act, 1949 w.e.f. 15.09.2001, the respondent No.1 issued one more Notification dtd. 13.09.2002 appointing Shri R.K. Pathak, IAS to be the Administrator and Municipal Commissioner of the said Corporation, by exercising the powers conferred by para 22 in Part IV of Appendix IV of the BPMC Act. He has however submitted that Appendix IV consists of transitory provisions as prescribed under Section 493 of the said Act and Part IV therein prescribes for special provisions relating to the cities other than the city of Ahmedabad. This para 22 provides for the Constitution of interim authorities for exercising the powers and performance of functions and duties for such period not exceeding one year. He has further submitted that the period of one year has been inserted in place of period of two and half years. Therefore, the Notification appointing Shri R.K. Pathak as Administrator and Municipal Commissioner for a period of 2 and 1/2 years or the date of first election is contrary to para 22 of Part IV in Appendix IV of the BPMC Act. He has further submitted that Para 22 gives an exhaustive list of competent authorities which may be appointed by the State Government wherein nowhere it is mentioned that the State Government has a power appointing an administrator while constituting a Corporation. He has, therefore, submitted that the said Notification is bad and illegal and contrary to the Provisions of the Act and, therefore, the same deserves to be quashed and set aside.
16. Mr. Nanavati has further submitted that even the provisions of Para 22 of Part IV in Appendix IV of the Act cannot be resorted to in view of the provisions of Article 243(ZF) of the Constitution which provides that the Provisions in the existing local laws relating to the municipalities which are inconsistent with the Provision of Part IX of the Constitution of India shall stand repealed immediately on expiry of one year from the commencement of the said part. This has already been averred by the petitioner and yet the respondent No.1 has resorted to the said Provision while appointing Shri R.K. Pathak as an Administrator of the Municipal Corporation for the period of 2 and 1/2 years or the date of first election of the said Corporation, whichever is earlier. Mr. Nanavati has, therefore, submitted that even on this ground also, the impugned Notification is required to be quashed and set aside.
17. Mr. Nanavati has further submitted that during the pendency of this petition, the State Government was called upon to explain as to whether the Administrator and the Municipal Commissioner appointed under Para 22 of Part IV of Appendix IV of the Act has been empowered to exercise power and perform all the functions and duties of the authorities mentioned in para 22(a) or not. The State Government filed further affidavit-in-reply and Notification dtd. 16.12.2002 was placed on record wherein the Administrator appointed earlier by the respondent authority has been empowered to exercise all the powers and perform all the functions and duties of all the authorities referred in items (i) to (iv) of sub-para (a) of paragraph 22 in Part IV of Appendix IV of the BPMC Act during and from the period of his appointment as Administrator and Municipal Commissioner for the period of 2 and 1/2 years or the date of the first election whichever is earlier.
18. Mr. Nanavati has further submitted that the Notification dtd. 16.12.2002 can not be issued by the State Government giving retrospective effect undoubtedly when despite the appointment, the Administrator was not given any power to exercise such powers. Even otherwise, the said Notification is illegal and unconstitutional on the fact of it as the Administrator and the Municipal Commissioner of the Municipal Corporation for the city of Junagadh has been appointed and empowered to function for the period of two and half years, which is absolutely illegal as the words "two and half years" were substituted by the words "one year" by the Gujarat Act of 1993. He has, therefore, submitted that the Notification dtd. 16.12.2002 is contrary to the Provisions of the Act and hence, it deserves to be quashed and set aside.
19. Mr. Nanavati has further submitted that though the period of one year has been provided in Para 22 (a) in Part IV of Appendix IV of the BPMC Act, it is inconsistent with the constitutional Provisions and more particularly, Article 243-U of the Constitution of India, which provides for election to constitute a Municipality shall be completed either before the expiry of its duration i.e. period of five years or before the expiration of a period of six months from the date of its dissolution. He has further submitted that Art. 243ZF provides that any provision of any law relating to the Municipalities in force in a State immediately before the commencement of the Constitutional (74th amendment) Act, 1992 which is inconsistent with the provisions of para IX-A of the Constitution, shall continue to be in force until amended or repealed by the competent authority or until the expiration of one year from such commencement. He has further submitted that Part IX-A of the Constitution was inserted in the Constitution of India with effect from 20th April, 1993 and, therefore, immediately on completion of one year i.e. on 19.04.1994 all provisions inconsistent with the provisions contained in Part IX-A of the Constitution of India shall stand repealed. He has, therefore, submitted that even period of one year as prescribed under Para 22(a) of Part IV of Appendix IV of the Act shall be deemed to have been repealed immediately on expiration of one year. On this ground also, the impugned Notification is required to be quashed and set aside.
20. Mr. Nanavati has further submitted that the issuance of such Notification a day prior to the date on which it was to be placed on record before this Court by way of Affidavit, itself proves the intention of the state Government beyond reasonable doubt and the same was issued only with a view to rectify the mistake which is impermissible under the law and hence, the same deserves to be set aside.
21. So far as C.A. No. 6110 of 2003 is concerned, Mr. Nanavati has submitted that the Provisions under which the Administrator has been appointed in the Corporation, provides for a period of one year and the said term expires on 14.09.2003 as the Administrator was appointed w.e.f. 15.09.2002. Therefore, the said Officer could not continue to act as an Administrator w.e.f. 14.09.2003 after the expiry of one year. Therefore, petitioners have moved this Civil Application seeking appropriate direction to the respondents either to conduct the election or to reinstate the body of the Erstwhile Municipality so as to achieve support of democratic principle which is back-bone of the Act as well as the Constitution of India. Mr. Nanavati has further submitted that inspite of resorting to any of these two courses, the State Government has issued another Notification dtd. 10.09.2003 whereby Shri R.K. Pathak, IAS is appointed as Administrator and continued as Municipal Commissioner of the Corporation, w.e.f. 15.09.2003 for a further period after the date immediately preceding the date of first meeting after first election of Municipal Corporation of the city of Junagadh. It was also clarified in the said Notification that Mr. R.K. Pathak appointed as an administrator and Municipal Commissioner shall have to manage the affairs of the Junagadh Municipal Corporation and to exercise all the powers and perform all the functions and duties of the Municipal authorities as specified under Section 7-A of the said Act. Mr. Nanavati has submitted that this Notification is also contrary to the Provision of Constitution of India and the Constitutional mandate and the statutory Provisions contained in the BPMC Act.
22. On the basis of the above facts and submissions, Mr. Nanavati has prayed for quashing and setting aside of all the Notifications issued by the State Government constituting Municipal Corporation for the city of Junagadh and appointing Mr. R.K. Pathak as an Administrator as well as the Municipal Commissioner for the Corporation.
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 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 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 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 :-
"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 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 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 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 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 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 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 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 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 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 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."
28. Mr. Trivedi has further submitted that upon issuance of the Notification dtd. 13.09.2002 in exercise of powers conferred under Sub-sec. (3) of Sec. 1 of the BPMC Act, 1949, the provisions of the BPMC Act were made applicable to the city of Junagadh, as a result thereof, the provisions of the BPMC Act were made applicable to the city of Junagadh and as a result thereof, the provisions of chapter XXXI entitled 'Repeals and Amendments' of the BPMC Act, 1949 came into effect. Sec. 490 contained in the said chapter provides that "the Gujarat Municipalities Act of 1963 and the Gujarat Panchayats Act of 1961 shall cease to apply, except as hereinafter provided, to any area included in the City." He has, therefore, submitted that in view of this Provision, the Gujarat Municipalities Act, 1963 stood repealed in respect of the area of Junagadh City declared as the larger Urban Area. In support of his submission, he relied on the decision of the Hon'ble Supreme Court in the case of G. EXAMBARAPPA AND OTHERS V/s. EXCESS PROFITS TAX OFFICER, BELLARY, A.I.R. 1967 S.C. 1541 wherein this Court has held as under :-
"The result of adaptation of S.1 (2) of the Excess Profits Tax Act by the Adaptation of Laws (No. 3) Order, 1956, was that the provisions of the Act were no longer applicable or in force in Bellary District in Mysore State which continued to be Part B State till 01.11.1956. In other words the Act was repealed so far as the area of Bellary district was concerned. Repeal of an Act means revocation or abrogation of the Act and S. 6 of the General Clauses Act applies even in the case of a partial repeal or repeal of part of an Act."
29. Mr. Trivedi has further submitted that there was never a dissolution of the erstwhile institution of Junagadh Municipality as sought to be contended, in as much as an institution having perpetual existence, never gets dissolved, but its body of members may get dissolved under certain circumstances and the institution awaits new body to come in. He has further submitted that in the present case, consequent upon the exercise of the constitutional mandate constituting a new institution i.e. Municipal Corporation of city of Junagadh, the erstwhile institution of Junagadh Municipality got extinguished/abolished/annihilated, with the result the body of members also stood automatically abolished/abrogated extinguished. In support of his submission, he relied on the decision of this Court in the case of GURDIT SINGH AULAKH (DECEASED) THROUGH L. RS. V/s. STATE OF PUNJAB AND OTHERS, A.I.R. 1974 S.C. 2058 wherein it is held that "the Notification dissolving the Tribunal abolished any public office of the description specified in the sub-rule. The Tribunal was not abolished. It was only re-constituted. There was no abolition of any public office. Abolition means, "to destroy, extinguish, abrogate or annihilate."
30. Mr. Trivedi has further relied on the decision of the Patna High Court in the case of KAMAKHYA NARAIN SINGH V/s. STATE OF BIHAR AND OTHERS, A.I.R. 1981 PATNA 236 wherein while dealing with the prayer for quashing the Notification No. 1406 dtd. 15.09.1979 constituting Ranchi Municipal Corporation and setting out its boundaries and Notification No. 1408 of the same date applying certain provisions of the Patna Municipal Corporation Act to the newly formed Ranchi Municipal Corporation and also the Notification No. 1532 dtd. 29.10.1979, the Court has held that legislature has given power to the State Government to include any area in order to constitute a Corporation; may be Municipality, Notified Area Committee joining the area with such area as the State Government may think fit and proper. The only basic requirement is that it must have an urban population of two lacs or more. The Court has further held that the provisions of the Bihar and Orissa Municipal Act and the Bihar Municipal Corporations Act (12 of 1978) having the same purpose and object cannot work in the same field and it may lead to anomalies and absurdities and therefore the former Act must give way to the subsequent Act, meaning thereby that the Bihar and Orissa Municipal Act shall be deemed to have been repealed by the Corporation Act (12 of 1978) in the area where it has been enforced.
31. Mr. Trivedi has further submitted that Provisions of Art. 243ZF do not apply to the facts of the present case because as per the said Article what is not supposed to remain in force after one year from 20.04.1993, the date when Part IX-A came to be inserted into the Constitution is any Provision of law, relating to municipalities, in force immediately prior to the commencement of the aforesaid amendment which is inconsistent therewith. He has further submitted that pursuant to the aforesaid constitutional amendment, there took place an amendment under the BPMC Act in consonance with the constitutional amendment. Special transitory provisions contained in Part IV of the Appendix IV of the BPMC Act, are not applicable in case of dissolution of the Municipal Corporation but are applicable to take care of transitory period when the Corporation comes into existence for the first time.
32. Mr. Trivedi has further submitted that the Provisions of Art. 243U of the Constitution of India shall also not apply to the present case as under the Gujarat Municipalities Act, dissolution of Municipalities can take place under the circumstances contemplated under Section 263 of the said Act after giving reasonable opportunity of being heard and the said aspect is taken care of by Art. 243U(1). However, no such dissolution has taken place in the present case and hence the Art. 243U(1) cannot be applied in the facts and circumstances of the present case. He has therefore submitted that the Provisions of Art. 243U(3) also would not apply to the instant case which provides for an election before the expiry of six months from the date of dissolution of the Municipality.
33. On the basis of the aforesaid submissions, Mr. Trivedi has submitted that the challenge made by the petitioners in the present petition would not survive on any counts and hence, the petition deserves to be dismissed with cost.
34. This Court has extensively set out hereinabove the facts and contentions of the parties, relevant statutory and constitutional provisions and the judicial decisions on the subject. The question which falls for Court's consideration is, though, in a narrow compass, it raises an interesting issue concerning the powers of the State Government to have desired result by and through using the constitutional office and position of the Governor. It is an admitted position that the process of constituting the Municipal Corporation for the city of Junagadh started much earlier. However, the state Government started taking steps from April, 2002. By that time, duly elected body for Junagadh Municipality was at the helm of affairs and its five years' tenure would come to an end on 19.01.2005. Before that, the Taluka Development Officer, sent a communication dated 01.04.2002 to eight Gram Panchayats to know their inclination to be joined in the larger urban area for city of Junagadh. This was challenged before this Court in S.C.A. No. 4714 of 2002 and while disposing of the said petition on 10.05.2002, this Court has directed the authorities to consider the representation dtd. 05.04.2002 and, thereafter, to take appropriate decision in the matter. Subsequent events show that the said proposal appears to have been dropped. Then, comes the show-cause notice issued under Section 263 of the Act on 13.06.2002 proposing to dissolve Junagadh Municipality. This was also challenged before this Court in S.C.A. No. 6354 of 2002, which came to be disposed of by this Court on 18.07.2002, with a direction that if any order of supersession was passed by the respondents, the same would not be implemented for a period of 10 days from the date of its receipt by the Municipality. No dissolution of the Municipality was, however, taken place, pursuant to the show-cause notice dtd. 13.06.2002. During this period, one more petition being S.C.A. No. 6490/2002 was filed before this Court, by some of the Gram Panchayats, which was dismissed on 17.07.2002 and L.P.A. filed against the order passed therein was entertained and notice was issued on 06.08.2002. At this stage, the State Government has come forward with three impugned Notifications dtd. 13.09.2002 constituting the Municipal Corporation for the city of Junagadh, specifying the 15th September, 2002 as the date on which the remaining provisions of the BPMC Act came into effect and appointing Mr. R.K. Pathak, IAS as the Administrator and Municipal Commissioner of the Junagadh Municipal Corporation for the period of 2 and 1/2 years or the date of first election of the said Corporation, whichever is earlier.
35. The above sequence or chronology of events, in no uncertain terms, demonstrate that what the State Government could not do directly by adopting other course, could very well do by bringing the Office of the Governor to its rescue, in the form of impugned Notifications. Mr. Nanavati has strenuously and vigorously urged that the whole exercise is nothing but flouting constitutional mandate, disregarding statutory provisions, violating or by-passing this Court's order in connected proceedings and sheer abuse or malafide exercise of powers. The Court, though, is in agreement with the petitioner to some extent and finds force in the submissions of Mr. Nanavati, cannot, however, overlook or ignore the relevant constitutional and/or statutory provisions as interpreted by the Hon'ble Supreme Court as this Court is bound by the said precedents and judicial pronouncements.
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 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 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 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.
38. With regard to other issues raised by the petitioner, this Court is of the view that upon issuance of the Notification dtd. 13.09.2002 in exercise of powers conferred under Section 3 of Section 1 of the BPMC Act, 1949, the provisions of the BPMC Act were made applicable to the City of Junagadh and as a consequence thereof, the provisions of Chapter XXXI dealing with 'Repeals and Amendments' of the BPMC Act, came into force and resultant effect thereof, as envisaged in Section 490 of the BPMC Act is that the Gujarat Municipalities Act, 1963 shall cease to apply to any area included in the city. Here, in the present case, the whole city area of erstwhile Junagadh Municipality is now considered to be the area of Junagadh Municipal Corporation and is now governed by BPMC Act. The Court, therefore, finds substance in Mr. Trivedi's submissions that consequent upon the exercise of the Constitutional mandate constituting a new institution i.e. Municipal Corporation of City of Junagadh, the erstwhile institution of Junagadh got extinguished / abolished / annihilated. The Court, therefore, is in conformity with the view taken by the Patna High Court in the case of Kamakhya Narain Singh V/s. State of Bihar and Others (SUPRA) that the legislature has given power to the State Government to include any area in order to constitute a Corporation, may be Municipality or Notified Area Committee, joining the area with such area as the State Government may think fit and proper.
39. As far as other issues raised by the petitioners are concerned, they are of minor nature and they are taken care of by subsequent Notifications dtd. 16.12.2002 and 12.02.2003. By Notification dtd. 16.12.2002, the State Government, while exercising powers conferred by pargraph 22 (a) read with paragraph 22 (B) read with paragraph 23 in Part IV of Appendix IV to the BPMC Act, has clarified and directed that the Administrator has been appointed to exercise all the powers and perform all the functions and duties of all the authorities referred to in items (i) to (iv) of Sub-Paragraph (a) of Paragraph 22 in Part - IV of Appendix - IV of the BPMC Act, during and from the period of his appointment as Administrator and Municipal Commissioner. Similarly, by Notification dtd. 12.02.2003, the State Government has substituted the word 'one year' in place of the words 'two and half years' as mentioned in Notification No. KV - 127 - 2000 - MNA - 100 - CMR - 41 (iii) - P dtd. 13.09.2002. In this view of the matter, it cannot be said that the action was taken without any application of mind. On the contrary, record shows that the concerned file was placed before the Governor. He has perused the file, put his endorsement and, thereafter, decision regarding constitution of Junagadh Municipal Corporation for city of Junagadh was taken.
40. However, the Notification dtd. 10th September, 2003 causes some concern to the Court. By virtue of this Notification, the State Government appointed Shri R.K. Pathak as Administrator and continued him as Municipal Commissioner of the Junagadh Municipal Corporation, effective from 15th September, 2003 for a further period upto the date immediately preceding the date of the first meeting, after first election of the Municipal Corporation of the city of Junagadh, and also clarified and directed that the Administrator has been appointed to manage the affairs of the Junagadh Municipal Corporation and to exercise all the powers and perform all the functions and duties of the Municipal authorities as specified under Section 7A of the BPMC Act. It is worthwhile to note here that the Notification dtd. 10.09.2003 was issued at a time when the tenure of one year was about to expire on 15.09.2003 and the petitioner has moved Civil Application No. 6110 of 2003 in the pending petition i.e. S.C.A. No. 9243 of 2002 on 29.08.2003 praying for stay against Mr. R.K. Pathak, IAS, restraining him to work as Administrator and Municipal Commissioner of Junagdh Municipal Corporation with effect from 14th September, 2003 and alternatively, praying for direction to the respondent No.1 to declare the election for Junagadh Municipal Corporation immediately upon expiry of the period of one year as prescribed under the Act. Though the said Notification has not been challenged, the same was placed on the record of this Court, by the learned Additional Advocate General, Shri K.B. Trivedi, alongwith his note containing chrolonogy of important events, legal propositions and authorities.
41. It is very unfortunate that during the period of one year, the State Government has not taken any action for holding the election of the newly constituted Junagadh Municipal Corporation and allowed the Administrator as well as Municipal Commissioner to function and now his tenure has been extended for indefinite period by virtue of the Notification dtd. 10.09.2003. It is contrary to the democratic principles and in violation of the legitimate right of people of Junagadh to have duly elected body representing the need of the people. The Court is normally not interfering in the legislative - cum - executive function of the State Government and precisely for this reason, the Court has not interfered with the Notifications issued by the State Government for constitution of the Junagadh Municipal Corporation. However, when the term of the Administrator and Municipal Commissioner is extended without any justifiable reason, the Court cannot ignore the intention of the State Government which can be gathered from circumstantial evidence and sequence of events taken place, which would ultimately resulted into denying the people at large, to have their duly elected body at the helm of affairs of the Corporation. Precisely for this reason, this Court issues the direction to the State Government to take up the matter with the Election Commission for holding the election of Junagdh Municipal Corporation as far as possible, within a period of three months from today and see to it that in any case, the said election shall be held on or before 31.01.2004. It is made clear that unless there are certain unforeseen circumstances such as the natural calamities, riots or compelling reasons because of which it will not be possible to hold the election within the above time limit prescribed by this Court, if the election is not held, the elected members of the erstwhile Junagadh Municipality would be considered to be the Councilors of Junagadh Municipal Corporation till their tenure as the member of Junagadh Municipality expires or till the election of the Junagadh Municipal Corporation is held, whichever is earlier. This Court is constrained to give this direction, despite the fact that the institution of Junagadh Municipality got extinguished / abolished / annihilated by virtue of the constitution of the Junagadh Municipal Corporation, as the Court would not allow anybody to keep out the elected members for indefinite period and thwart any democratic process by taking shelter of some executive orders or instructions.
42. Subject to the aforesaid direction, S.C.A. No. 9243 of 2002 is dismissed. Rule discharged without any order as to costs.
43. In view of the direction given in the main petition, Civil Application No. 6110 of 2003 would not survive and it is accordingly disposed of.