Rajasthan High Court - Jaipur
Bheenwaram S/O Ghamaram vs State Of Rajasthan ... on 7 August, 2023
Bench: Manindra Mohan Shrivastava, Praveer Bhatnagar
[2023:RJ-JP:16912-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 12152/2023
Bheenwaram S/o Ghamaram, Aged About 35 Years, R/o Guda,
Ponkh, Jhunjhunun, Udaipurwati, Rajasthan- 333053 (Presently
Posted As Sarapanch, Gram Pnchayat Guda).
----Petitioner
Versus
1. State Of Rajasthan, Through Its Secretary, Local Self
Government Department Situated At G-3, Rajmahal
Residential Area, C-Scheme, Near Civil Lines Railway
Crossing, Jaipur, Rajasthan- 302006.
2. Rajasthan State Election Commission, Through Its
Secretary, Situated At 2Nd Floor, Development Block,
Secretariat, Jaipur, Rajasthan-302005.
3. Smt. Komal W/o Shri Rajendra Sherawat, R/o Ponkh,
Jhunjhunun, Udaipurwati, Rajasthan- 333053 (Presently
Posted As Sarpanch, Gram Panchayat Ponkh).
----Respondents
For Petitioner(s) : Mr. Sankalp Todi
For Respondent(s) : Mr. Anil Mehta, AAG with
Mr. Yashodhar Pandey
HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Order Reportable 07/08/2023 The challenge in this writ petition is to the legality and validity of notification dated 01.06.2021 passed by the State Government in exercise of powers under Section 3 sub-section (1) Clause (a) read with sub-section (8) Clause (c) of the Rajasthan Municipalities Act,2009, whereby, the State Government has made provision dealing with transitory period between declaration of (Downloaded on 11/11/2023 at 06:59:49 PM) [2023:RJ-JP:16912-DB] (2 of 13) [CW-12152/2023] village area as municipality area and the elections to be held thereafter.
Learned counsel for the petitioner would argue that the power conferred on the State under Section 3 sub-section (9) is limited to facilitate the inclusion of any area of a village in a municipality which by its very nature, does not allow the State to make any provision with regard to the Office of Chairman and Vice-Chairman of newly created / established municipality. Submission is that the legislature in its wisdom provided in Clause
(c) sub-section (8) of Section 3 that until elections are held or the terms of the municipality as provided under the Act expires, whichever is earlier, the Sarpanch, Upsarpanch or Panchas representing the area of the village so included, or declared as a municipality shall be deemed to be the additional members of the municipality, in which, such area of the village is included or the Chairperson, Vice-chairperson and the members respectively of the municipality declared for such area, as the case may be. As the legislature did not specifically provide for any eventuality where more than one village area are clubbed together and declared as municipality, it is not within the authority of the State to lay down an additional provision providing for the manner in which the Chairperson and Vice-chairperson of the newly created municipality would be appointed or deemed to be appointed. He would submit that in the absence of any such provision, the provision contained in the Municipality Act providing for election of Chairperson and Vice-chairperson from amongst the ward members of the newly created municipality would become applicable and therefore, the State was left with no option but to (Downloaded on 11/11/2023 at 06:59:49 PM) [2023:RJ-JP:16912-DB] (3 of 13) [CW-12152/2023] leave the matter for appointment of Chairperson and Vice- chairperson to be appointed under the scheme of the Municipality Act.
It is further submitted that in any case, the impugned notification suffers from manifest arbitrariness because the criteria for laying down as to who would be deemed to be the Chairman or the Vice-chairman is not based on any rationale. The criteria being that the Sarpanch of the Panchayat having larger number of electorate shall be deemed to be Chairman and that of a lesser number of electorate shall be deemed to be Vice-chairman could not be made a basis because this criteria is not in harmony with the scheme of the Act as the Chairperson, Vice-chairpersons have to be appointed by way of election from amongst the ward members of the municipality and therefore, by implication, they represent the entire municipality area and not confined to any particular area which was earlier a village area.
The notification dated 01.06.2021 reads as under:-
"jktLFkku ljdkj Lok;Rr 'kklu foHkkx dzekad i-10¼u-ik-½ ¼xBu½¼½@Mh,ych@20@2025 t;iqj] fnukad 1&6&2021 vf/klwpuk jktLFkku uxjikfydk vf/kfu;e] 2009 dh /kkjk 3 dh mi/kkjk ¼1½ ds [k.M ¼d½ ,oa mi/kkjk ¼8½ ds [k.M ¼x½ ds vuqlkj jkT; ljdkj }kjk jkT; dh fdlh {ks= dks uxjikfydk ?kksf'kr fd;s tkus ij uxjikfydk ?kksf'kr fd;s x;s xzke ds ,sls {ks= dk izfrfuf/kRo djus okys ljiap] miljiap vkSj iap- ;k iapkks dks ,sls {ks= ds fy, ?kksf"kr uxjikfydk dk dze'k% v/;{k]mik/;{k] vkSj ;FkkfLFkfr lnL; le>k tk,sxk] dk izko/kku gS] fdUrq uxjikfydk ljiap@miljiap a dks uxjikfydk ?kksf"kr fd;s x;s {ks= dk v/;{k@mik/;{k le>k tkosa] ds lac/a k esa vf/kfu;e esa dksbZ Li"V izko/kku ugh gSA vr% jktLFkku uxjikfydk vf/kfu;e] 2009 dh /kkjk 3 dh mi/kkjk ¼9½ esa iznRr 'kfDr;ksa dk iz;ksx djrs gq, jkT; ljdkj uxjikfydk {ks= ?kksf"kr fd;s x;s {ks= esa ,d ls vf/kd xzke iapk;r dks 'kkfey fd;s tkus dh fLFkfr esa uoxfBr uxjikfydk esa 'kkfey xzke iapk;rksa ds ljiapks@miljiapksa esa ls uoxfBr uxjikfydk ds v/;{k@mik/;(Downloaded on 11/11/2023 at 06:59:49 PM)
[2023:RJ-JP:16912-DB] (4 of 13) [CW-12152/2023] {k fu;qDr fd;s tkus ds laca/k esa fuEukuqlkj uhfr@funsZ'k tkjh djrh gS%& 1- uoxfBr uxjikfydk esa ,d iw.kZ xzke iapk;r ,oa ,d ;k ,d ls vf/kd vkaaf'kd xzke iapk;r ds 'kkfey fd;s tkus dh fLFkfr esa uoxfBr uxjikfydk esa 'kkfey fd;s x, iw.kZ xzke iapk;r ds ljiap ,oa miljiap dks uoxfBr uxjikfydk dk v/;{k ,oa mik/;{k rFkk 'ks"k okMZ iapks rFkk vkaf'kd xzke iapk;r@iapk;rksa ds okMZ iapks dks lnL; le>k tkosxkA 2- uoxfBr uxjikfydk esa nks ;k nks ls vf/kd iw.kZ xzke iapk;r ,oa ,d ;k ,d ls vf/kd vkaf'kd xzke iapk;r ds 'kkfey fd;s tkus dh fLFkfr esa uoxfBr uxjikfydk esa 'kkfey dh x;h iw.kZ xzke iapk;r ftldh tulaa[;k lokZf/kd gS] ds ljaip dks uoxfBr uxjikfydk dk v/;{k rFkk uoxfBRk uxjikfydk esa 'kkfey dh x;h iw.kZ xzke iapk;r ftldh tula[;k f}rh; gS] ds ljiap dks uoxfBr uxjikfydk dk mik/;{k rFkk 'ks"k xzke iapk;rksa ds ljiap] miljiap] 'ks"k okMZ iapksa rFkk vkaf'kd xzke iapk;r@iapk;rksa ds okMZ iapks dks lnL; le>k tkosxkA jkT;iky dh vkKk ls ¼nhid uUnh½ funs'kd ,oa fof'k"B lfpo"
The notification has been issued by the State in exercise of powers under Section 3 sub-section (8) read with Section 9.
Section 3 of the Municipality Act deals with delimitation of the municipalities. Sub-Section 1 thereof reads as below:-
"3. Delimitation of Municipalities.- (1) The State Government may, by notification published in the Official Gazette, declare any local area not included within the limits of a Municipality to be a Municipality, or include any such area in a Municipality, or exclude any local area from a Municipality, or otherwise alter the limits of any Municipality and when -
(a) any local area is declared as, or included in, a Municipality, or
(b) any local area is excluded from a Municipality, or
(c) the limits of a Municipality are otherwise altered, by amalgamation of one Municipality into (Downloaded on 11/11/2023 at 06:59:49 PM) [2023:RJ-JP:16912-DB] (5 of 13) [CW-12152/2023] another or by splitting up a Municipality into two or more Municipalities, or
(d) any local area ceases to be a Municipality, the State Government, may notwithstanding anything contained in this Act or any other law for the time being in force, by an order published in the Official Gazette provide,-
(i) in a case falling under clause (a), that the election of the members for the area or the additional area shall be held within a period of six months from the appointed day;
(ii) in a case falling under clause (b), that the members who in the opinion of the State Government represent the area excluded from the Municipality shall be removed;
(iii) in a case falling under clause (c), that until the term of the Municipality in which another Municipality is amalgamated expires under this Act, the Chairperson, Vice-Chairperson and members of such another Municipality shall be deemed to be the members of the Municipality in which such another Municipality is amalgamated and where a Municipality is split into two or more Municipalities, that the members representing the area included in the newly constituted Municipality shall be deemed to be the members of such new Municipality and such new Municipality shall continue, unless dissolved sooner, until original Municipality would have continued;
(iv) in a case falling under clause (d), that the Municipality shall be dissolved.
Explanation.- In this sub-section, "appointed day"
means the day from which a change referred to in any of the clauses (a) to (d) takes effects"
A situation where any local area is declared as municipality is provided under Clause (a) as stated above.
After dealing with different situations of declaration of inclusion, exclusion or cessation, it has been further provided that the State Government may, by an order, published in the official gazette, provide for election of the members for the area which (Downloaded on 11/11/2023 at 06:59:49 PM) [2023:RJ-JP:16912-DB] (6 of 13) [CW-12152/2023] shall be held within a period of six months from the appointed day when it falls under Clause (a).
Sub-section (8) of Section 3 provides that when an area comprised in a village is specified as, or when any area is excluded from the village and included in a municipal area, then with effect from the date on which such area is so specified or is so included, consequences as provided under Clauses (a) to (f) would follow. Amongst other provisions, Clause (c) thereof provides that until elections are held under sub-section (1) or term of the municipality expires under the Act, whichever is earlier, the Sarpanch, Upsarpanch, Panch and Panchas representing the area of the village so included in, or declared as municipality shall be deemed to be the additional members of the municipality in which such area of the village is included or the Chairperson, Vice- chairperson and the members respectively of the municipality declared for such area, as the case may be.
Therefore, the provisions contained in Section 3 sub-section (8) provide for consequences flowing by operation of law to the effect that the Sarpanch, Upsarpanch shall be deemed to be the Chairman, Vice-chairman, in case, village area is declared as municipality. However, the aforesaid legislative scheme of the Act does not deal with all kind of situations.
The legislature fully aware and conscious of unprecedented situations which may arise in case of delimitation of municipalities as provided under Section 3, has invested the State with power as is provided under sub-section (9) of Section 3, which reads as under:-
(Downloaded on 11/11/2023 at 06:59:49 PM)
[2023:RJ-JP:16912-DB] (7 of 13) [CW-12152/2023] "For the purpose of facilitating the inclusion of any area of a village in a Municipality or of the declaration of any such area as a Municipality, the State Government may, by order in writing, give such directions as may appear to it to be necessary".
On a perusal of the aforesaid provision, it is clear that the scope and ambit of power conferred on the State is of wide aptitude. This is clear from the expression "for the purposes of facilitating the inclusion of any area of a village in a municipality or of the declaration of any such area as municipality." It is this power which has been exercised by the State while issuing impugned notification. The provision contained in Clause (c) sub-
section (8) of Section 3 does not deal with a contingency as to what will happen and how Chairman and Vice-chairman would be appointed or deemed to be appointed in case more than one local area, clubbed together, are declared as municipality under one single notification. Obviously, the provision contained in Clause (c) sub-section (8) of Section 3 would become unworkable and one or the other transitory provision has to be made until elections are held as required under sub-section (1) of Section 3. It is this transitional state of affairs, which is sought to be dealt with by the State in exercise of powers under sub-section (9) of Section 3. In our considered view, the power under this sub-Section fully empowers the State to make such provision to issue such direction which makes the newly created municipality functional.
Such power is conferred on the State to ensure that the broad provisions contained in the Act and the scheme of delimitation is made workable till regular elections for electing members of the wards of newly created municipality are held.(Downloaded on 11/11/2023 at 06:59:49 PM)
[2023:RJ-JP:16912-DB] (8 of 13) [CW-12152/2023] The argument that the provisions suffer from manifest arbitrariness, cannot be accepted. The workable arrangement, which has been made by the State by impugned notification is to the effect that the Sarpanch of local area/village area with highest number of electorate shall be deemed to be the Chairman whereas, Sarpanch of the local area/village area with lesser number of electorate shall be the Vice-chairman. This criteria stated in the impugned notification, in our considered opinion, is in accordance with the democratic norms. One who represents larger number of electorate, now comprised within the newly created municipality, would be the Chairman. We are unable to accept that the provisions suffer from manifest arbitrariness. The scope of interference by this Court while dealing with challenge to a law or delegated legislative function on the ground of manifest arbitrariness has been considered by this Court in its judicial pronouncement in D.B. Civil (PIL) Writ Petition No.5789/2020 (Professor K.B. Agarwal Vs. State of Rajasthan & Ors.) vide order dated 24.02.2023, the scope of judicial review on the ground of manifest arbitrariness, was examined as below:-
"36. The test of manifest arbitrariness as explained in the case of Cellular Operators Association of India Vs. TRAI (2016) 7 SCC 703, was noted as below:
"100. To complete the picture, it is important to note that subordinate legislation can be struck down on the ground that it is arbitrary and, therefore, violative of Article 14 of the Constitution. In Cellular Operators Assn. of India v. TRAI (2016) 7 SCC 703, this Court referred to earlier precedents, and held:(SCC pp. 736-
37, paras 42-44) "Violation of fundamental rights (Downloaded on 11/11/2023 at 06:59:49 PM) [2023:RJ-JP:16912-DB] (9 of 13) [CW-12152/2023]
42. We have already seen that one of the tests for challenging the constitutionality of subordinate legislation is that subordinate legislation should not be manifestly arbitrary. Also, it is settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation.
[See Indian Express Newspapers (Bombay)(P) Ltd. v. Union of India (1985) 1 SCC 641, SCC at p. 689, para 75.]
43. The test of "manifest arbitrariness" is well explained in two judgments of this Court. In Khoday Distilleries Ltd. v. State of Karnataka (1996) 10 SCC 304, this Court held: (SCC p. 314, para 13) '13. It is next submitted before us that the amended Rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate Article 14 of the Constitution.
Although the protection of Article 19(1)(g) may not be available to the appellants, the Rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law- making power. In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable;
"unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary". Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, "Parliament never intended the authority to make such rules; they are unreasonable and ultra vires". In India, arbitrariness is (Downloaded on 11/11/2023 at 06:59:49 PM) [2023:RJ-JP:16912-DB] (10 of 13) [CW-12152/2023] not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution.'
44. Also, in Sharma Transport v. State of A.P. (2002) 2 SCC 188, this Court held:
(SCC pp. 203-04, para 25) '25. ... The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation.
In order to strike down a delegated legislation as arbitrary it has to be established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non- rational, not done or acting according to reason or judgment, depending on the will alone.'"
(emphasis in original)"
37. It was further held that there is no rational distinction between plenary legislation and subordinate legislation when it comes to the ground of challenge under Article 14 of the Constitution of India. It was held thus:
"101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without (Downloaded on 11/11/2023 at 06:59:49 PM) [2023:RJ-JP:16912-DB] (11 of 13) [CW-12152/2023] adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14."
38. In the celebrated Constitution Bench judgment in the case of K.S. Puttaswamy (AADHAAR) (Retired) & Another Vs. Union of India & Another (2019) 1 SCC 1; the scope of judicial review was explained as below:
"101. Judicial review means the Supremacy of law. It is the power of the court to review the actions of the Legislature, the Executive and the Judiciary itself and to scrutinise the validity of any law or action. It has emerged as one of the most effective instruments of protecting and preserving the cherished freedoms in a constitutional democracy and upholding principles such as separation of powers and rule of law. The Judiciary, through judicial review, prevents the decisions of other branches from impinging on the constitutional values. The fundamental nature of the Constitution is that of a limiting document, it curtails the powers of majoritarianism from hijacking the State. The power of review is the shield which is placed in the hands of the most judiciaries of constitutional democracies to enable the protection of the supreme document."
Applying the aforesaid principles, we do not find that the impugned notification issued by the State Government suffers from vice of manifest arbitrariness. After all, the State has dealt with a situation not envisaged under the law but yet it had become necessary to make some workable provision for a period of six months from the date of creation of a new municipality by clubbing more than one village area.
(Downloaded on 11/11/2023 at 06:59:49 PM) [2023:RJ-JP:16912-DB] (12 of 13) [CW-12152/2023] The submission of learned counsel for the petitioner that the consequence of constitution of municipality by clubbing two or more village areas could, at the most, be deemed appointment of Panchas, Upsarpanchas and Panchas as members and there was no occasion for the State to go further by making provision for appointment of Chairman and Vice-chairman in the garb of its power under Section 3 sub-section (9), there being provision under the Municipality Act providing for election of Chairman and Vice-chairman from amongst members, also does not impress us.
This is for the reason that the State Government has issued circular which only deals with transitory situations and is not a permanent affair. True it is that the provisions of the Act provides for election of chairman and vice-chairman from amongst the members of municipality. However, in the present case, as the members of municipality are not elected as such but are deemed to be so by operation of law, the legislature in its wisdom provided for such a provision in Clause (c) of sub-section 8 of Section 3 of the Act, not only providing for deemed membership of municipality but also as to who would be deemed to be the Chairman and Vice-chairman. Therefore, this legislative intent has been carried forward by the State by issuing impugned notification whereby, they have provided as to who would be deemed to be Chairman and Vice-chairman in case more than one village areas are clubbed and declared as one municipality.
In the absence of there being a case of incompetence on the part of the State to issue notification and the provision not suffering from manifest arbitrariness nor against or inconsistent with the scheme of the Act, keeping in view that the impugned (Downloaded on 11/11/2023 at 06:59:49 PM) [2023:RJ-JP:16912-DB] (13 of 13) [CW-12152/2023] notification deals with transitory situations and not a permanent provision and all that is intended is to make the newly created municipality functional till elections are held within a period of six months for election of members of municipality, we do not find any ground to interfere in the notification.
Accordingly, the present writ petition is dismissed. (PRAVEER BHATNAGAR),J (MANINDRA MOHAN SHRIVASTAVA),J 12-SURAJ KUMAR (Downloaded on 11/11/2023 at 06:59:49 PM) Powered by TCPDF (www.tcpdf.org)