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2003 DIGILAW 606 (GUJ)

JUNAGADH MUNICIPALITY v. STATE

2003-10-08

K.A.PUJ

body2003
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 and 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. 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. 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. 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 Municipalitys 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. 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. 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 Courts 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. 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. 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. 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. 243 ZF 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. .