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2011 DIGILAW 1363 (PNJ)

Sheel Kumar v. State of Haryana

2011-07-05

A.N.JINDAL, M.M.KUMAR

body2011
JUDGMENT Mr. A.N. Jindal, J.: - This judgment of mine shall dispose of two civil writ petition Nos.14219 and 20775 of 2010, as common question of law is involved in both the cases, therefore, these are being decided together. However, for convenience, the facts necessary for disposal of these petitions are taken up from Civil Writ Petition No.20775 of 2010. 2. Sheel Kumar and Harbans lal Salani- petitioners have invoked the powers under Articles 226/227 of the Constitution of India for issuing writ in the nature of certiorari for quashing the notification dated 20.3.2010 (Annexure P6), issued by the Government of Haryana, whereby the administrative boundaries of Municipal Corporation Gurgaon have been extended and the area of the various gram panchayats have been included in the Municipal Limits of Municipal Corporation, Gurgaon, the same being violative of principles of natural justice; ultra vires of Article 243-U as well as 73rd and 74th constitutional amendment and also 2-A of the Haryana Municipal Act, 1973 as well as Sections 3 & 4 of the Haryana Municipal Corporation Act, 1994. 3. It has been averred that vide gazette notification No.18/1/95/2008-3C1 dated 2.6.2008 (Annexure P1) the Haryana Government while exercising the powers conferred by sub-section 2 of Section 3 of the Haryana Municipal Corporation Act, 1994 (16 of 1994), the Governor of Haryana declared the Municipal Council Gurgaon to be a Corporation known as Municipal Corporation, Gurgaon. The Government of India, Ministry of Home, Office of Chief Registrar, vide letter No.9/66/09-CD (N) dated 22.9.2009 (Census of India 2011 – Circular No.6) (Annexure P2) issued directions to all the States regarding fixing of boundaries of administrative units during the census of population in India from 1.1.2010 to 31.3.2011, stating therein that during the work of census of population, it is necessary to ensure full coverage, therefore, all administrative blocks in the States and Union Territories have been divided into small counting blocks. The work of making boundaries of these counting blocks was to be done well in advance from the work of preparing lists of houses because census of population is to be done as per map in order to remove the discrepancies in the area, therefore, it was necessary to ensure that in order to conduct the census of population properly, there should not be any change in the boundaries of administrative blocks after the formation of counting blocks till the completion of census of population. Therefore, any proposed change in the jurisdiction of existing administrative blocks should be made effective well before 1.1.2010. In these circumstances, the resolutions for preparing new blocks or regarding changes in existing Municipal Councils, Revenue Villages, Tehsils, Police Stations, Development Blocks, Taulaks, Sub Division Districts etc. which could be kept pending and formed in near future, be given final shape and the same be considered effective till 31.12.2009. All such type of changes be brought to the notice of concerned Directorate of Census of Population of the State/Union Territories and office of Chief Registrar of India till 31.12.2009. However, the respondent No.1 did not make any changes. The State Government also framed guidelines/criteria vide memo No.53/278-08- 3CI dated 1.1.2010 (Annexure P4) to all the Divisional Commissioners in the State as well as to all Municipal Corporations in the State for altering the boundaries. The Haryana Government Revenue and Disaster Management Department, vide notification dated 12.1.2010 (Annexure P5) had stated that administrative boundaries of all the Districts, Tehsils, Towns, Villages etc. shall stand frozen w.e.f. 1.1.2010 till 31.3.2011 to facilitate the Haryana Government to undertake census operation. However, the decision was taken by the respondents to include the areas of various village panchayats namely Ghata, Tigara, Badsbahpur, Begumpur Khatola, Kherki Daula, Sihi, Harsaru, Gadauli Kalan, Basai, Dhawnwapur, Tikampur, Daultabad, Pawla Khusrupur, Chomma Khera etc. in the municipal limits of Municipal Corporation Gurgaon despite the prohibitions imposed vide notifications Annexures P2 to Ex.P5 and directly issued notification dated 20.3.2010 (Annexure P6) which is violative of principle of natural justice, ultra vires of Article 243-U as well as 73rd and 74th constitutional amendment and also 2-A of the Haryana Municipal Act, 1973 as well as Sections 3 & 4 of the Haryana Municipal Corporation Act, 1994. 4. 4. Upon notice the respondent No. 5 filed reply stating therein that the Government of Haryana vide its notification No.18/1/95/2008-3C1 dated 2.6.2008 (Annexure P1) declared the area specified in its schedule to be a corporation known as Municipal Corporation, Gurgaon. The boundaries of the Corporation were primarily defined on the basis of the Northern Peripheral road and the Southern Peripheral road, the two proposed roads in the Gurgaon Development Plan. Consequently, revenue estates of some villages got bifurcated in two parts i.e. a part of the revenue estate came inside the municipal limits while the remaining part of the revenue estate left out side the Municipal limits. Out of all the villages within the boundary of Municipal Corporation so defined, 12 villages were such that their Abadi Dehs fell within the Municipal Corporation but a part of the area of their respective revenue estates remained out side the limits of the Municipal Corporation, list of which is given in the table below :- ---------------------------------------------------------------------------------------------------------------------------------- Sr. No. Name of the village Area Area out Total Area Approx. already side MCG Approx. Population within Limits (Acres) in the part MCG limit (Acres) outside (Acres) MCG Limit ---------------------------------------------------------------------------------------------------------------------------------- 1 Chauma Khera 1411 393 1804 861 2 Dhanwapur 719 285 1004 0 3 Basai 1618 15 1633 0 4 Gadauli Kalan 525 5 530 0 5 Sihi 664 494 1158 81 6 Kherki Daula 283 1014 1297 714 7 Narsinghpur 397 85 482 0 8 Begumpur 962 131 1093 0 9 Fazilpur Jharsa 988 106 1094 77 10 Ghasola 382 6 388 0 11 Tigra 544 76 620 1700 12 Tikampur 5 209 214 0 ---------------------------------------------------------------------------------------------------------------------------------- Total 8498 2819 11317 3433 ---------------------------------------------------------------------------------------------------------------------------------- 5. There were six other villages where a part of the revenue estate fell within the boundary of the Corporation but the abadi deh and the remaining area of the revenue estate continued to be out side the boundary of Municipal Corporation, Gurgaon, the detail of which is given in the table below :- ---------------------------------------------------------------------------------------------------------------------------------- Sr. No. Name of the village Area Area out Total Area Approx. already side MCG Approx. No. Name of the village Area Area out Total Area Approx. already side MCG Approx. Population within Limits (Acres) in the part MCG limit (Acres) outside (Acres) MCG Limit ---------------------------------------------------------------------------------------------------------------------------------- 1 Pawala Khusrupur 173 349 522 1500 2 Daultabad 70 1719 1789 11417 3 Harsaru 1076 1435 2511 244 4 Badshahpur 246 3554 3800 30000 5 Ghata 859 944 1803 8534 6 Gawal Pahadi 123 570 693 4500 ---------------------------------------------------------------------------------------------------------------------------------- Total 2547 8571 11118 56195 ---------------------------------------------------------------------------------------------------------------------------------- 6. In the 12 villages, whose revenue estate remained outside the corporation boundary were no longer being governed by any local body, rural or urban. Similarly, the 6 villages whose revenue estate had fallen within the corporation boundary, but not the abadi deh(s), Panchayats continued to exist. Here the anomaly of dual governance of Panchayat owned parcels of lands in their parts of the revenue estates which were included in the corporation boundary arose with a potential of engendering queer disputes between two constitutionally mandated Local Governments. Faced with this situation, Commissioner, Municipal Corporation, Gurgaon had suggested the government through D.O. letter No.10945 dated 15.12.2009 (Annexure R1) that the boundary of Municipal Corporation, Gurgaon should be redefined as soon as possible to certainly include the leftover part of the revenue estate of 12 villages and also of village Pawala Khusrupur and to consider whether or not to include the remaining 5 villages of Table-II in the Municipal Corporation, Gurgaon. It has been further averred that the Government constituted a committee vide its letter No.53/278=-8-3C1 dated 1.1.2010 under the chairmanship of Divisional Commissioner, Gurgaon (respondent No.4) for considering the matter of boundaries of corporation. The out come of the meeting proceedings have been recorded as mentioned in Annexures R2 and R3 and perusal of these brought out complete adherence to the guidelines contained in Annexure P4 of the civil writ petition. The principle behind including the left out area was that the entire revenue estate should fall within the limits of Corporation so that it could be efficiently and completely administered. It was further averred that previously village Daultabad has not been included in the Municipal Corporation, Gurgaon in the impugned notification dated 20.3.2010 (Annexure P6). The principle behind including the left out area was that the entire revenue estate should fall within the limits of Corporation so that it could be efficiently and completely administered. It was further averred that previously village Daultabad has not been included in the Municipal Corporation, Gurgaon in the impugned notification dated 20.3.2010 (Annexure P6). The fact that this village was part of Table-II of the letter of Commissioner dated 15.12.2009 (Annexure R1) and yet the committee headed by Divisional Commissioner, whose proceedings are Annexures P2 and P3, did not recommend its inclusion shows that the said committee meticulously followed the guidelines dated 1.1.2010 contained in Annexure P4. The Municipal Corporation was duly consulted and it was at the behest of the Municipal Corporation that the alteration in the boundaries of Municipal Corporation Gurgaon was done by the State Government vide impugned notification dated 20.3.2010. 7. Arguments heard. Record perused. 8. Two individuals, having no status of being member panchayat or sarpanch of village Harsaru have challenged the notification without pleading as to what special damage has been caused to them by inclusion of the area of the village into Municipal Corporation, Gurgaon. They have no cause of action to file writ petition. 9. It is not the case where new Municipal Corporation is being constituted by inclusion of certain villages, but this case is based on quite different facts. Actually, vide notification No. 18/1/95/2008-3CI dated 2.6.2008 (Annexure P1), the Governor of Haryana while exercising the powers under sub-section (2) of Section 3 of the Haryana Municipal Corporation Act, 1994, had declared the area specified in its schedule to be the corporation and demarcated the peripheral boundaries i.e. north – east, south, south-east, west and north-west. These boundaries of the corporation were primarily defined on the basis of the Southern peripheral road which led to an anomaly as revenue estate of some villages got bifurcated into two parts i.e. part of the revenue estate coming inside the municipal limits while the remaining part of the revenue estate got left out side the municipal limits. Similarly, boundaries of the 12 villages was left outside whereas the abadi deh (s) of that village came within the municipal limits but part of the respective estates of some villages remained out side the limits of municipal corporation. These villages have been referred to in Table No.I and table II in the preceding paras. Similarly, boundaries of the 12 villages was left outside whereas the abadi deh (s) of that village came within the municipal limits but part of the respective estates of some villages remained out side the limits of municipal corporation. These villages have been referred to in Table No.I and table II in the preceding paras. Since it was very difficult for the municipal corporation to extend its schemes to the lands left out of the boundaries of those villages and also to govern the villages whose lands have been fallen within the boundary of the municipal corporation, the Commissioner, Municipal Corporation, Gurgaon vide letter dated 15.12.2009 (Annexure R1) suggested the government to re-define the area of the municipal corporation to include the left over part of the revenue estate of 12 villages and also of village Pawala and Khusrupur and to consider whether or not to include the remaining five villages in the Municipal Corporation Gurgaon. It was also difficult for the Panchayats to govern the areas which had fallen within the jurisdiction of the Municipal Corporation, Gurgaon. However, it may be mentioned that at the time of issuing notification dated 2.6.2008, as referred to above, no body had raised objection for inclusion of the area of these villages including the petitioners the Municipal Corporation was duly consulted. The petitioners are the residents of village Gari Harsaru, revenue estate of which had fallen within the jurisdiction of the municipal corporation but the abadi deh of the village continued to be out side the boundary of the municipal corporation. It may be reiterated that as requested and suggested by the Commissioner, Municipal Corporation, Gurgaon, vide letter dated 15.12.2009 (Annexure R1), the Government constituted a committee under the Chairmanship of the Divisional Commissioner, Gurgaon for re-considering the boundaries of the corporation. The committee met twice and recorded proceedings (Annexure R2 and R3). The proceedings having been examined and found to be adhering to the guidelines as contained in Annexure P4 attached to the petition. The committee met twice and recorded proceedings (Annexure R2 and R3). The proceedings having been examined and found to be adhering to the guidelines as contained in Annexure P4 attached to the petition. Consequent to the proceedings Annexure R2 and R3, the proposal given by the Commissioner, Municipal Corporation stood approved vide Annexure P3 dated 24.11.2009, the operative part of which reads as under :- “In these circumstances, the resolutions for preparing new blocks or regarding changes in existing Municipal Councils, revenue villages, tehsils, police stations, development blocks, taulaks, sub division districts etc., which can be kept pending or which can be formed in near future, be given final shape and the same be considered effective till 31st December 2009. All such type of changes be brought to the notice of concerned Directorate of Census of Population of your State/U.T’s and the office of Chief Registrar of India till 31st December 2009.” 10. The objection with regard to the fact that the municipal corporation was not consulted is of no consequence as it was not only the municipal corporation Gurgaon who was consulted but it was at the behest of the said municipal corporation itself that the alteration in the boundary of the corporation was done by the State Government vide impugned notification dated 20.3.2010. It is not the case where the objections from the gram panchayats were to be invited, actually these gram panchayats had never objected, when their revenue estates were included in the Municipal Corporation or the area of Abadi Dehs was taken into consideration in the year 2008. If they had raised the objections then, their objections must have been disposed of at the time when the notification dated 2.6.2008 Annexure P6 was issued which has not been now challenged. The major area of these villages had already fallen within the jurisdiction of the Municipal Corporation. Either abadi deh(s) or the revenue estate(s), but now this notification has been issued just to facilitate the better governance of the area by the Corporation so that neither the villagers nor the corporation may not have to suffer from any hardship due to ambiguity left in the notification dated 2.6.2008. 11. Either abadi deh(s) or the revenue estate(s), but now this notification has been issued just to facilitate the better governance of the area by the Corporation so that neither the villagers nor the corporation may not have to suffer from any hardship due to ambiguity left in the notification dated 2.6.2008. 11. As regards the powers of the Government for inclusion of the gram panchayat area in the municipal corporation is concerned, similar proposition arose before the Division Bench of this Court in case Bhupinder Singh vs. Union of India 1997 (3) RCR (Civil) 594 (DB), wherein the specific question for consideration was whether the constitution of Municipal Corporation or specifying the territorial jurisdiction or area in which Corporation is to function or the declaration or constitution of Notified Area is a legislative power or function and its delegation is unbridled, excessive and without guidelines or policy, which is quintessential for delegation of legislative function. The Division Bench of this Court, in Bhupinder Singh’s case (supra) further observed as under :- “29. For the reasons recorded above, we are of the considered view that the provisions of Article 243 (N) of the Constitution of India or Section 10 and 15 of the Panchayati Raj Act are not violated in any manner by the constitution of the Municipal Corporation which automatically resulted in ceasure of gram sabha and gram sabha area, thereby resulting into ceasure of the gram panchayat as well. 30. Coming to the last, but not the least, contention raised that in terms of sub-section (4) of Section 3 of the Panchayati Raj Act when the gram sabha or the gram sabha area cease to exist on account of their being included in the urban estate under the Municipal Act, 1911 or the Corporation Act, 1976, the assets and liabilities of the gram panchayats would automatically deem to have vested in the respective institutions, as they can be loosely termed as successor to the gram panchayat. Even otherwise too, we fully agree with the Hon’ble Single Judge that non-framing of any rules for disposal of panchayat’s properties on its ceasure would be of no consequence, as in terms of section 427 of the Corporation Act, all assets and liabilities of the gram panchayat would automatically vest in the Municipal Corporation. 31. Even otherwise too, we fully agree with the Hon’ble Single Judge that non-framing of any rules for disposal of panchayat’s properties on its ceasure would be of no consequence, as in terms of section 427 of the Corporation Act, all assets and liabilities of the gram panchayat would automatically vest in the Municipal Corporation. 31. In our considered view, Notification constituting Notified Area, for the reasons recorded in the earlier part of the judgment with respect to constitution of the Corporation, and specifying territorial jurisdiction, is a legislative function. As observed in the earlier part of the judgment, the principles of natural justice cannot be invoked or imbibed while discharging legislative functions unless Legislature themselves specifically provide for the same. 32. In our considered view, non-framing of rules for the disposal of panchayat properties or their vesting in the Notified Area would not render the Notification constituting the Notified Area as nugatory or violative of any provision for which it can be declared to be ultra vires. If we may hasten to add, nothing substantial has been pointed out that the declaration of the Notified Area suffers from any arbitrariness, non- application of mind or is violative of any statutory provision. Constitution of a Notified Area of small villages being a legislative function, it is for the Legislatures to consider it on all aspects. Ordinarily the Courts cannot substitute their opinion for the opinion of the Legislatures. Mere declaration of an area as Notified Area, later withdrawing and subsequently re-declaring, by itself would not render the declaration of the Notified Area as ultra vires or suffering from the vice of any illegality or irregularity. We may add that no cancellation of gram sabha area is specifically required for declaration of a Notified Area. Nothing substantial has been pointed out.” 12. In the aforesaid case, no such objection was raised in the year 2008 that the declaration of notification for including the area of the villages suffers from any arbitrariness, non application of mind or is violative of any statutory provisions. In the instant case also, the villagers did not find fault with the earlier notification dated 2.6.2008 whereby the revenue estate(s) of abadi deh(s) of 12 villages and 6 villages were included in the Municipal Corporation. Now such objection cannot be raised when a clarificatory notification has been issued. 13. In the instant case also, the villagers did not find fault with the earlier notification dated 2.6.2008 whereby the revenue estate(s) of abadi deh(s) of 12 villages and 6 villages were included in the Municipal Corporation. Now such objection cannot be raised when a clarificatory notification has been issued. 13. Learned counsel for the petitioners have further stressed that the case of the petitioners is covered by the decision dated 29.10.2010 given in Civil Writ Petition No. 5149 of 2010, titled as V.K. Kapoor and others vs. State of Haryana and others, 2010(4) Law Herald (P&H) (DB) 3433 (Annexure P7) and has urged that the area of the Gram Panchayat whose area was being included were not taken into confidence and the gram panchayat were not dissolved before inclusion of their area, as such, the boundaries of the Corporation could not be extended without dissolving the gram panchayats whose area was included in the Corporation. 14. In this regard it may be reiterated that all such objections could be raised at the time when the original notification dated 2.6.2008 for inclusion of the area has been published. Now it is the remainder area of the said gram panchayats which is being included just to facilitate the better governance, development and administration of justice. As such, the judgment delivered in Civil Writ Petition No. 5149 of 2010, titled as V.K. Kapoor and others vs. State of Haryana and others, 2010(4) Law Herald (P&H) (DB) 3433 decided on 29.10.2010, is not applicable to the facts of the present case. 15. Consequently, finding no merit in both the writ petitions, the same are dismissed.