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2003 DIGILAW 278 (HP)

MUNICIPAL COUNCIL, KULLU v. STATE OF H. P.

2003-09-15

R.L.KHURANA, V.K.GUPTA

body2003
JUDGMENT V.K. Gupta, C.J.—CMP No. 1515 of 203. Allowed. CWP No. 732 of 2003. This is a petition filed under Article 226 of the Constitution of India by the Municipal Council, Kullu raising some disputes with respect to the rights of Municipal Council, Kullu relating to the collection of revenue in terms of the provisions contained in H.P. Municipal Act, 1994 on the occasion of the forthcoming Dussehra festival at Kullu. Undoubtedly, Municipal council, Kullu is a statutory body created under the provisions of H.P. Municipal Act, 1994. 2. Our attention was drawn to a recent decision of the Supreme Court in the case of Chief Conservator of Forests Government of A.P. v. Collector and others reported in 2003 (3) SCC 472. Even before this decision, in two cases of Oil and Natural Gas Commission v. Collector of Central Excise, reported in 1992 Supp. (2) SCC 432 and 1995 Supp. (4) SCC 541, their Lordships of the Supreme Court had laid down, as a proposition of law that the departments of the Central Government should not litigate in the courts between or among themselves, because their straightway going to the courts in litigation is an avoidable exercise and they also in the bargain incur heavy public expenditure on such avoidable litigation. In the aforesaid judgment in the case of Chief Conservator of Forests, Government of A.P. v. Collector and others (supra), their Lordships of the Supreme Court, while referring to the aforesaid earlier two judgments in the cases of Oil and Natural Gas Commission (supra) have now clearly spelt out, held and laid down, also as a proposition of law, that even with respect to the Departments of the State Government it is advisable and desirable, rather imperative, that these departments do not take recourse to litigation straightway and, instead they should approach the permanent Standing Committees constituted by the State Government for the resolution of the disputes or any controversy arising in between these various departments of the State, including the undertakings of the State. The following observations are apposite: “The facts of this appeal, noticed above, make out a strong case that there is a felt need of setting up of similar committees by the State Government also to resolve the controversy arising between various departments of the State or the State and any of its undertakings. The following observations are apposite: “The facts of this appeal, noticed above, make out a strong case that there is a felt need of setting up of similar committees by the State Government also to resolve the controversy arising between various departments of the State or the State and any of its undertakings. It would be appropriate for the State Governments to set up a committee consisting of the Chief Secretary of the State, the Secretaries of the departments concerned, the Secretary of law and where financial commitments are involved the Secretary of Finance. The decision taken by such a committee shall be binding on all the departments concerned and shall be the stand of the Government." 3. We are quite conscious of the fact that the aforesaid judgment is squarely applicable to the departments of the State, including the undertakings owned by the State. We are saying so because statutory bodies, such like the Municipal Councils, Municipal Corporations etc. being wholly autonomous in character, are neither the departments of the State nor the undertakings owned by the State. We still feel that taking a cue from the ratio laid down in the aforesaid judgment of the Supreme Court, .-it will be advisable that even these statutory bodies, before taking recourse to litigation, should first approach the committee thus to be constituted by the State Government for airing their grievances before such a committee. Adopting such course of action shall avoid the incurring of huge public expenditure, because even though these statutory bodies may not be the departments or the undertakings of the State Government, yet the expenditure that they incur in litigation is public expenditure and the intention of the Supreme Court in the aforesaid these judgments was to ensure that incurring of public expenditure by all these bodies is avoided at all costs. There of course is a very big difference between the departments or undertakings of the Government and autonomous and totally independent statutory bodies and the difference is that whereas the decisions taken by the above referred committee are binding on the departments or undertakings of the Government the decisions may not be binding on these statutory bodies, but nonetheless such a course of action shall be an alternative remedy which these statutory bodies should avail of, because there always would be a chance, a positive and a definite chance, of some sort of amicable settlement being arrived at in the course of deliberations before the committee, or some sort of a compromise formula which will obviate the need of such autonomous statutory bodies taking recourse to litigation. Of course, if such statutory bodies ultimately feel that the decision arrived at by the committee is not to their liking or is not in conformity with the merits of their contention, they would always be at liberty to approach this Court by invoking this Courts extra-ordinary jurisdiction under Articles 226 or 227 of the Constitution of India. 4. When we are talking of the statutory bodies in the aforesaid para of the judgment and the obligation that we propose to put upon them in first approaching the committee to be constituted by the State Government before coming to this Court, we have in mind only such statutory bodies, local or other authorities, as would squarely fall within the definition, scope and ambit of Article 12 of the Constitution of India. This judgment, therefore, should not be construed to be applicable to such statutory authorities (like private statutory authorities, such as, Companies or Societies etc.), which are not covered by or come within the scope of Article 12 of the Constitution of India. 5. We, therefore, direct the Government of Himachal Pradesh to constitute such a permanent/standing committee in terms of the aforesaid judgment of the Supreme Court and also direct that in future, before any statutory body decides to take recourse to litigation, it should first approach such a committee. The committee as and when so approached shall decide the issue within the shortest possible time and of course by affording an opportunity of hearing to such a statutory body. The committee as and when so approached shall decide the issue within the shortest possible time and of course by affording an opportunity of hearing to such a statutory body. In some circumstances and situations, time is always of essence and therefore, undoubtedly the Committee is supposed to decide the issues raised before it in such situation and circumstances within the stipulated time period as would be of essence looking to the case in hand, because if the committee drags on the matter, resulting in a situation where because of the time being of essence, the relief itself becomes in fructuous or is likely to become in fructuous, the entire exercise of approaching the committee might be a futility. In such situations, therefore, the statutory bodies would of course be at liberty to approach this Court either directly, or even cut-short their attempt of having approached the committee, and this would be only because of the non-action on the part of such a committee. In all eventualities, while finally deciding the issue as raised before the committee, the committee of course is expected to pass a speaking order. The aforesaid permanent/standing committee shall be constituted by the State Government within a period of four weeks from today and the fact of constitution of such a committee based on this order and the aforesaid judgments of the Supreme Court shall be communicated to all statutory bodies by the State Government by issuance of an appropriate notification which shall be widely circulated. 6. So far as the present case, however, is concerned, since this is the first time that we are issuing the aforesaid direction, we feel that we should decide this case ourselves. 7. Mr. Dogra, learned Counsel appearing for the petitioners submits that the power as far as the petitioners are concerned to levy any charges flows from Section 201 of the H.P. Municipal Act, 1994. On a perusal of this provision of law, we find that the power to levy either small fee on persons attending the fairs or on persons exposing goods for sale or carrying on any occupationjor gain etc. etc., no doubt rests with the municipalities, but this power cannot be exercised except with the previous sanction of the Deputy Commissioner. On a perusal of this provision of law, we find that the power to levy either small fee on persons attending the fairs or on persons exposing goods for sale or carrying on any occupationjor gain etc. etc., no doubt rests with the municipalities, but this power cannot be exercised except with the previous sanction of the Deputy Commissioner. In so far as the ensuing Dussehra festival in Kullu is concerned, we are of the considered opinion that the petitioners undoubtedly, in terms of Section 201 (supra) have a right of making proposals to the Deputy Commissioner and the Deputy Commissioner correspondingly has a right as well as an obligation to consider whether to grant sanction or not to grant sanction with respect to such proposals. 8. After thus hearing the learned Counsel for the parties, we dispose of this petition by permitting the Municipal Council, Kullu to formulate and submit proposals to Deputy Commissioner, Kullu in terms of Section 201 (supra). If the Municipal Council, Kullu formulates and submits the proposals to Deputy Commissioner, Kullu during the course of this week, we direct the Deputy Commissioner, Kullu, in exercising his power and jurisdiction in terms of Section 201 (supra), to dispose of the matter with respect to grant of sanction within one week from the date of receipt of the proposal(s) from Municipal Council, Kullu. Undoubtedly, the Deputy Commissioner while deciding the issue shall be guided by the merits of the case and the law on the subject. He shall also grant personal hearing to the representative of Municipal Council, Kullu before arriving at any final decision. He shall pass a speaking order- in deciding the issue. Any decision taken by the Deputy Commissioner, Kullu shall ultimately regulate and guide the affairs in the ensuing Dussehra Festival at Kullu. CMP No. 1516 of 2003. Infructuous. Dasti Copy.