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2003 DIGILAW 272 (HP)

RENU CHADHA v. STATE OF H. P.

2003-09-10

R.L.KHURANA, V.K.GUPTA

body2003
JUDGMENT V.K. Gupta, CJ.—Reply-affidavit has been filed. The order No. UD-F(l)-4/97-Vol. II dated 14.8.2003 passed by respondent No. 1 dissolving Municipal Council, Dalhousie with immediate effect in purported exercise of the power vesting in the State Government under Section 271 of the H.P. Municipal Act, 1994 is under challenge in this petition filed by petitioner Smt. Renu Chadha under Article 226 of the Constitution of India. The petitioner was the President of the dissolved Municipal Council and apparently she, aggrieved by passing of the said order, has approached this Court by assailing the order on a number of grounds. 2. Section 271 of the H.P. Municipal Act, 1994 reads as under:— "271. (1) If at any time it appears to the State Government or the prescribed authority that a municipality is persistently making the default in the performance of the duties imposed on it by or under this Act or under any other law for the time being in force, or exceeds or abuses its power or fails to carry out any order of the State Government or the competent authority, the State Government or the prescribed authority, may, after such enquiry as it may deem fit, by an order dissolve such municipality and may order a fresh constitution thereof. (2) No order under sub-section (1) shall be passed unless reasonable opportunity has-been given to the municipality for furnishing its explanation. The notice calling explanation shall be addressed to the President of the municipality and shall be served in the manner prescribed. The reply of the municipality to the notice shall be supported by the resolution of the municipality. (3) On dissolution of municipality under sub-section (1), the following consequences shall ensure, namely:— (a) all the members, President and Vice-President shall vacate their offices with effect from the date of such order; (b) all powers and duties of the municipality shall, until the municipality is reconstituted, be exercised and performed by such person or committee of persons as the State Government or the prescribed authority may appoint in this behalf and where a committee of persons is so appointed, the State Government or the prescribed authority shall also appoint a head of such committee; and (c) where a committee is appointed under clause (b), any member of such committee duly authorised by it may issue or institute or defend any action at law on behalf of or against the municipality. (4) Any person appointed to exercise and perform the powers and duties of municipality during the period of dissolution may receive from the fund of the municipality concerned such payment for his service as the State Government may, by order, determine. (5) A municipality dissolved under sub-section (1) shall be re-constituted in accordance with the provisions of this Act within six months of its dissolution. Such re-constituted municipality shall function for the remaining term of the municipality: Provided that if the unexpired period is less than six months the municipality shall not be reconstituted for this period." 3. A bare look at sub-section (1) of Section 271 clearly suggests that a Municipal Council can be dissolved only if it persistently has been making defaults in the performance of the duties imposed upon it by or under this Act or under any other law for the time being in force, it exceeds or abuses its power, or fails to carry out any order of the State Government or the competent authority. A bare look at the impugned order suggests that none of the aforesaid three conditions precedent for the dissolution of the Municipal Council, Dalhousie, have been mentioned or recorded in the impugned order as a ground for its dissolution. 4. Sub-section (2) of Section 271 lays down that no order of dissolution shall be passed unless a reasonable opportunity has been given to the Municipality for furnishing its explanation. Even the respondents own understanding of the true import of sub-section (2) (supra) that an effective opportunity is required to be given to the Council for furnishing its explanation and also that this concept of opportunity includes a right of personal hearing, reflected in the impugned order itself because therein it has been observed by the respondents that the Municipal Council, Dalhousie was also given an opportunity for personal hearing. 5. 5. Whatever be the understanding of respondent No. 1 with respect to the right vesting in the Municipal Council of being heard before a dissolution order is passed and whatever be the language employed in sub-section (2) of Section 271 of the Act, Article 243-U of the Constitution does not leave any scope for any doubt that a right, by way of a constitutional guarantee, has been accorded in favour of the Municipal Committees, including the Municipal Councils of being provided with a reasonable opportunity of hearing before any dissolution order is passed. Clause (1) of Article 243-U of the Constitution which is relevant for our purpose may be reproduced. It reads thus:— "Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution." 6. Even though sub-section (2) of Section 271 of the Act has not been very happily couched and it does not specifically talk of "opportunity of being heard" as it only refers to the provisions of "opportunity for furnishing an explanation", right of being heard has to be clearly read into sub-section (2) of Section 271 of the Act because any provision in H.R Municipal Act, 1994 has to be read subject to the provisions contained in Part IX-A of the Constitution, including Article 243-U and if there is any discrepancy, conflict or inconsistency between the provisions of the H.P. Municipal Act, 1994 and the above referred provisions of the Constitution, the constitutional provisions shall have an over-riding effect notwithstanding any inconsistency in the 1994 Act. Therefore, the right of hearing is an in alienable right vesting in a Municipal Council before any dissolution order is passed by the Government. 7. The factual position, however, is that neither the petitioner nor for that matter the Municipal Council, Dalhousie actually got an opportunity of hearing because, as per the averments made in the reply-affidavit, even though the petitioner did present herself when called for hearing, the hearing opportunity alluded her because the petitioner wanted the hearing to be conducted through her Advocates and this was not acceptable to the respondents and in the result the impugned order was passed without granting any hearing to either the petitioner or her council. 8. 8. The impugned order is totally non-speaking and does not assign any reasons. Apart from the fact that it does not record or mention anyone of the aforesaid three conditions precedent for dissolution, it also does not specify or assign any factual matrix as to why the dissolution was resorted to. The only recital which we have been able to decipher from the reading of the impugned order is that "the Municipal Council, Dalhousie has not been working in accordance with law and has rather allowed the land owners/ hoteliers to continue with the illegal/unauthorised construction on one pretext or the other". In what manner the Municipal Council has not been working in "accordance with the law" has not at all been explained in the impugned order. Who were the land owners or the hoteliers allowed to continue with illegal/unauthorised constructions has also not been explained or recorded in the impugned order. Since the impugned order was totally bereft of any reasoning or grounds, vide our order dated 3rd September, 2003, we had directed the learned Advocate General to produce the entire original record before us for our perusal. We have been shown the record which includes the minutes of the proceeding recorded on 13th August, 2003 by the Principal Secretary, Urban Development Department and find that in a very very perfunctory manner, by adopting a very casual approach and apparently without any application of mind, the Principal Secretary has dealt with the very very important and vital issue of dissolving a duly elected Municipal Council. We are pained to say so because the Principal Secretary in recording her aforesaid minutes has just relied upon the report from the Director, Urban Development and is making only that report as the sole basis of her proposal to dissolve the Municipal Council and when we wanted to see this report of the Director, Urban Development, we were told by the learned Advocate General that the Director had not submitted any such report and that in fact there was a report by the Additional Director and a subsequent report jointly prepared by the Assistant Town Planner and the Assistant Engineer. Surely the Principal Secretary, Urban Development Department is supposed to know the difference between a Director and an Additional Director and rather than referring to the report of the Additional Director, he has referred to the report of the Director thereby clearly betraying either total non-application of mind or a casual and irresponsible approach to the issue, or worse, a mere mechanical exercise of jurisdiction. This apart, it was expected of him to have indicated the reference particulars of the report of the Director, meaning thereby the date of the report and the reference number under which it was submitted. This was not done. The minutes further go on to record that after having personally gone through the report of the Director and "the entire matter of 22 unauthorised constructions cases" the Principal Secretary has come to the conclusion that the Municipal Council has miserably failed to get the work of unauthorised construction stopped timely. No details with respect to these 22 unauthorised construction cases find a mention in the minutes of the Principal Secretary. This again shows total non-application of mind and a very lackluster, casual and irresponsible attitude in dealing with such a sensitive matter as the dissolution of a duly elected council. 9. Dissolution of elected bodies is not a common, routine event. It is a rarity. Elected bodies come into existence on the force of a mandate, a popular mandate, received from the electorate. The elections are the basic edifice of a democratic process. Part IX-A of the Constitution of India, starting from Article 243-P and ending with Article 243-ZG was introduced in the Constitution of India by the Constitution 74th Amendment and the purpose was to ensure that constitutional safeguards are prescribed with respect to the elections to the Municipalities and all the affairs connected with their functioning. It clearly, therefore, is suggestive of the intention of no less a body than the Parliament of India that the will of the people is not defeated or frustrated nor is it brought to a naught by taking recourse to rare event of dissolution of a elected house. Therefore, we have no manner of doubt that the initiation of extreme step of an action under Section 271 of the H.P. Municipal Act; 1994 should be resorted to only if the conditions mentioned in this Section exist and the situation so warrants. Therefore, we have no manner of doubt that the initiation of extreme step of an action under Section 271 of the H.P. Municipal Act; 1994 should be resorted to only if the conditions mentioned in this Section exist and the situation so warrants. That being the case, therefore, a very onerous responsibility rests upon the shoulders of the State Government in fully satisfying itself about the reasons and the grounds for taking this extreme step and the concerned Secretary to the Government, Incharge of the Urban Development Department, therefore, being the head of the Administrative Department is required to be doubly surely and properly to apply his mind and to see to it that, on the basis of the material available with him, a proper order is passed which on the face of it does not suffer from any legal or constitutional infirmity. This is more so when every such order is justiciable and persons aggrieved of passing of such an order have a constitutional right of challenging its validity and correctness in this Court. 10. In the light of the aforesaid facts and circumstances and based on the aforesaid reasoning, as we were proceeding to examine the contemporaneous record with a view to deciding ourselves the correctness and the validity of the action of dissolution, dehors the impugned order, or the aforesaid minutes dated 13th August, 2003, the learned Advocate appearing for the respondents submitted that rather than this Court examining the merits of the aforesaid impugned action, an opportunity be given to the respondents to reconsider the entire issue by passing a fresh order. The submission of the learned Advocate General is very fair. 11. Without, therefore, going into the merits of the controversy and without expressing our views, one way or the other and accepting the aforesaid suggestion of the learned Advocate General, while setting aside the impugned order dated 14th August, 2003 (supra) we direct that respondent No. 1 shall pass a fresh order which shall be a comprehensively reasoned and a speaking order. Before passing this order, an opportunity of hearing shall be given to the petitioner. Before passing this order, an opportunity of hearing shall be given to the petitioner. Since apparently the petitioner may not be in a position to articulate or communicate her views properly, the petitioner shall be afforded the opportunity of hearing, being represented through a counsel of her choice and with a view to ensure that the proceedings are not unduly protracted of dragged on for long, at the most two opportunities of hearings shall be given (and no more) for the purpose of enabling the petitioner to put across and explain her point of view before respondent No. 1. It goes without saying that while finally disposing of the matter, all the contentions raised by the petitioner shall be properly considered and dealt with in the order that ultimately is passed. The fresh order shall be passed very very expeditiously and without wasting any further time. The order when ultimately passed shall be communicated to the petitioner either personally or through her counsel who appears on her behalf, within 24 hours of its passing. 12. Till after a period of ten days from the date of the passing of the fresh order by respondent No. 1, elections to the Municipal Council, Dalhousie shall not be held. 13. The setting aside of the impugned order dated 14th August, 2003 by us should not be construed as any expression of opinion by us with respect to the merits of the controversy since this order has been set aside only on the ground mentioned in this judgment. Also, the setting aside of this order should not mean the disturbance or alteration of the arrangement as is presently obtaining and in existence with respect to the affairs of the council and its functioning. In furtherance of that arrangement, therefore, and with a view to removing any difficulties, it is accordingly also ordered and directed that until the matter is reconsidered by the State Government and fresh order passed, the Municipal Council, Dalhousie (which had been dissolved by the operation of the impugned order and which order has since been set aside by us), shall continue to remain under suspended animation. Of course, it goes without saying that the result of the fresh reconsideration shall decide the fate of the said Council. The petition is allowed to the extent indicated above. 14. No order as to costs. CMP No. 1413 of 2003. In fructuous.