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2011 DIGILAW 728 (UTT)

Kamal Jora v. State of Uttarakhand

2011-12-15

Sudhanshu Dhulia

body2011
JUDGMENT Sudhanshu Dhulia, J. 1. Heard Mr. Lok Pal Singh and Mr. Vipul Sharma, Advocates for the petitioners, Mr. S.N. Babulkar, learned Advocate General assisted by Mr. J.P. Joshi, learned Chief Standing Counsel for the State of Uttarakhand and Mr. V.K. Kohli, Senior Advocate assisted by Mr. Subhash Tyagi Bhardwaj, Advocate for respondent no. 2. 2. By means of the first Writ Petition being Writ Petition (M/S) No. 1533 of 2011, the Chairman of the erstwhile “Nagar Palika Parisahd”, Haridwar has challenged the order of the dissolution of the “Nagar Palika Parishad”, Haridwar, and in the second writ petition being Writ Petition (M/S) No. 1548 of 2011, the councilors of the erstwhile “Nagar Palika Parishad”, Haldwani have challenged the dissolution of the “Nagar Palika Parishad”, Haldwani. 3. The two Nagar Palikas were formally constituted on 6.5.2008 and 5.5.2008 respectively. The term of the two “Nagar Palika Parishad” is for a period of five years. In other words, their term would have expired on 5.5.2013 in the case of “Nagar Palika Parishad”, Haridwar and on 4.5.2013 in the case of “Nagar Palika Parishad”, Haldwani. The petitioners have presently challenged before this Court the order dated 21.7.2011, by which the two municipalities have been dissolved and administrators have been appointed, in its place. 4. This is the second round of litigation, between the parties as earlier the petitioners had challenged the order dated 20.5.2011 by which these two municipalities were dissolved by the Government invoking its powers under Article 243 Q and 243 U of the Constitution of India read with Section 8-AA of the Uttar Pradesh Municipal Corporation Act, 1959. It was done by means of Writ Petition (M/S) No. 1031 of 2011 in the case of municipal council, Haridwar and Writ Petition (M/S) No. 1058 of 2011, in the case of municipal council, Haldwani. The orders of the State Government dated 20.5.2011 by which the two municipalities were dissolved and administrators were appointed, were quashed by this Court, after hearing both the parties in the said writ petitions on 9.6.2011. The State went in Special Appeal where the appeal was dismissed and the above order was upheld. A brief narration of the background which led to the filing of the present writ petitions before this Court would be in order. 5. The State went in Special Appeal where the appeal was dismissed and the above order was upheld. A brief narration of the background which led to the filing of the present writ petitions before this Court would be in order. 5. In Uttarakhand, inter alia, a middle level municipality i.e. Nagar Palika Parishad was existing in Haridwar as well as in Haldwani. These were to be upgraded into a large municipal area i.e. from a municipal council to a municipal corporation. 6. Article 243 Q of the Constitution of India visualizes three kinds or rather three levels of municipalities in an urban area. The first is for a basic urban area which was earlier a rural area and now known as “transitional area”, which has a “Nagar Panchayat”. The next higher level of municipality is for a “smaller urban area” where there is a municipal council, which in the State of Uttarakhand is known as “Nagar Palika Parishad”. The third and the highest level of a municipality is for a “larger urban area” and is called a municipal corporation which is known in the State of Uttarakhand as a “Nagar Nigam”. These three levels of municipalities have been described in Article 243 Q (1) of the Constitution of India, which is as under : “243Q. Constitution of Municipalities.- (1) There shall be constituted in every State, - (a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area. (b) a Municipal Council for a smaller urban area; and (c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part: Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township. (2) In this article, ‘a transitional area’, ‘a smaller urban area’ or ‘a larger urban area’ means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part.” 7. Both these municipalities i.e. Haridwar and Haldwani are the middle level of municipalities pertaining to a “smaller urban area”. Now, “a transitional area”, “a smaller urban area” or “larger urban area” under Article 243 Q (2) would mean such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part. It is not disputed that prior to 20.5.2011, the Government of Uttarakhand had issued a notification under Section 243 Q (2) defining what would be, inter alia, a larger urban area and had determined that in the plain area of the State of Uttarakhand, a larger urban area would constitute an area having a population of 1,25,000 and more. Consequent to this, since Haridwar and Haldwani had a population of more than 1,25,000, the Government decided to create a municipal corporation for these areas instead of a municipal counsel, as it was existing previously. However, before doing so, the Government had two difficulties, firstly, in these two places elected municipal councils were already in existence, councils which were elected in the year 2008 for a period of 5 years and was to continue till May, 2013. Hence, creating a corporation would necessarily mean first dissolving these existing councils, much before their term was to come to an end, and more importantly such councils had to be “heard” before their dissolution, as provided under proviso to Article 243 U of the Constitution of India. Article 243 U reads as under :- “243U. Duration of Municipalities, etc. Hence, creating a corporation would necessarily mean first dissolving these existing councils, much before their term was to come to an end, and more importantly such councils had to be “heard” before their dissolution, as provided under proviso to Article 243 U of the Constitution of India. Article 243 U reads as under :- “243U. Duration of Municipalities, etc. – (1) 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. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1). (3) An election to Constitute a Municipality shall be completed, - (a) before the expiry of its duration specified in clause (1); (b) before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period. (4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would leave continued. under, clause (1) had it not been so dissolved.” 8. The Government of Uttarakhand vide its order dated 20.5.2011 not only had dissolved these two elected bodies and in their place appointed administrators but had “admittedly” done so without providing these municipalities an opportunity of hearing, much less “a reasonable opportunity of hearing”, as contemplated under proviso to Article 243 U of the Constitution of India, as it was the case of the State before this Court that since the primary reason for dissolving these municipal councils was to upgrade them to a corporation hence the requirement of proviso to Article 243 U would not be attracted. 9. Hence there were two challenges to the dissolution of the municipal councils. 9. Hence there were two challenges to the dissolution of the municipal councils. Firstly, that it is in violation of Article 243 U of the Constitution of India, inasmuch as the term of municipal council has to be for five years and it cannot be curtailed. The second challenge was that a reasonable opportunity of hearing must be given before a municipality is dissolved. 10. This Court was not in agreement with the first contention of the petitioners regarding the dissolution being unconstitutional before the term of the councils had come to an end and the Court had held that in a given contingency, an elected municipal council can be dissolved even prior to its term and a hiatus can be created and it would not be unconstitutional. This was done following the judgment of Hon’ble Apex Court in State of Maharashtra and others Vs. Jalgaon Municipal Council and others reported in (2003) 9 SCC Page 731. 11. However, this Court was of considered view that under no condition an elected body of representatives, and in the present case that being a municipal council, could be dissolved without following the mandate of the Constitution of India, as provided under Proviso to Article 243 U of the Constitution of India i.e. without giving an opportunity of hearing to the municipality. This Court therefore held that dissolution of the council since it was done without giving a reasonable opportunity of hearing to the councils was violation of principles of natural justice and fairplay, “a principle that has by now taken a deep root in our judicial conscious”, and therefore held that the order dated 20.5.2011 (by which these municipalities were dissolved) is clearly violative of the Constitution of India. “A democratically elected body such as a municipal council has been dissolved by an order in violation of the Constitution of India. Such an order cannot stand.” Therefore, the writ petitions were allowed, and the orders of dissolution were quashed. 12. The State moved a letter patent appeal against the said order before the Division Bench of this Court. The learned Judge of the Division Bench dismissed the appeal of the State and upheld the order dated 9.6.2011. Such an order cannot stand.” Therefore, the writ petitions were allowed, and the orders of dissolution were quashed. 12. The State moved a letter patent appeal against the said order before the Division Bench of this Court. The learned Judge of the Division Bench dismissed the appeal of the State and upheld the order dated 9.6.2011. The observations of the Division Bench in this case are absolutely material for present adjudication inasmuch as with the present dissolution of these councils vide order dated 21.7.2011, the State has done the same violation, only this time with some subterfuge as well. 13. The Division Bench was of the view that the term of a municipal council is for five years, though these municipal councils can be dissolved “under any law for the time being in force”, but before doing so the mandate of proviso to Article 243 U must be complied with. Since the municipal councils were being dissolved for the reasons that a municipal corporation had to come in its place, ostensibly the Government had exercised its powers under Section 8-AA of the U.P. Municipal Corporation Act, as it is enforced in the State of Uttarakhand as well. Section 8-AA of the U.P. Municipal Corporation Act reads as under :- “8-AA. Temporary provisions for the constitution of Corporation and administration of area notified as City. Section 8-AA of the U.P. Municipal Corporation Act reads as under :- “8-AA. Temporary provisions for the constitution of Corporation and administration of area notified as City. – (1) Where any area has been specified to be a larger urban area under clause (2) of Article 243-Q of the Constitution] and the State Government is of opinion that until the due constitution for such area under [the Constitution], it is expedient so to do, then the State Government may, notwithstanding anything contained in this Act or any other law for the time being in force, by order direct that – (a) [the Municipal Council] or any other local authority constituted for exercising jurisdiction in such area shall, with effect from such date as may be specified in the said order, hereinafter in this section referred to as ‘specified date’, stand dissolved or, as the case may be, cease to exercise jurisdiction in such area; (b) all powers, functions and duties of the Corporation, its Mayor Deputy Mayor, [Wards Committee, Executive Committee, Development Committee and other Committees established under clause (e) of Section 5 and of the Municipal Commissioner shall as from the specified date, be vested in and be exercised, performed and discharged by an officer appointed in that behalf by the State Government (hereinafter referred to as the Administrator) and the Administrator shall be deemed in law to be the Corporation, the Mayor, the Deputy Mayor, [Wards Committee], Executive Committee, Development Committee or other Committees, or the Municipal Commissioner as the occasion may require; (c) such salary and allowances of the Administrator as may be fixed by general or special orders of the State Government in that behalf, shall be paid out of the Corporation fund. (2) Subject to any general or special orders of the State Government, the Administrator may, in respect of all or any of the powers conferred on him by clause (b)-- (i) consult such committee or other body, if any, constituted in such manner as may be specified in that behalf; or (ii) delegate, subject to such conditions as he may think fit to impose, the power so conferred to any person or Committee or other body constituted under Sub-clause (i), to be specified by him in that behalf. (3) The provisions of this section shall be in addition to, and not in derogation of, the provisions contained in Section 579 and Section 580.]” 14. When the matter went before the Hon’ble Division Bench, not only Article 243 Q and Article 243 U but also the parameters of Section 8-AA of the U.P. Municipal Corporation Act were examined. The Division Bench was of the view that the Constitution does not contemplate under Article 243 Q or even under Section 8-AA to hear anyone when a decision has to be taken regarding upgrading of a municipal council to a municipal corporation but in case where a natural consequence of this upgradation would mean dissolution of an existing municipal council, an opportunity of hearing being a mandate of the Constitution of India must be followed in its true letter and sprit. The Division Bench after elaborating these provisions of law came to the conclusion that upgradation of a municipal counsel to a municipal corporation is one step, dissolution of an existing council is another and the dissolution of a municipal counsel is not a fait accompli, after upgradation of a council to a corporation, for the reasons stated in its para 9 and 10. Para 9 and 10 of the judgment of the Division Bench are quoted below :- “9. A State of a democratic nation, ruled by law, is bound to be fair and just in every aspect. In the name of expressing opinion, it cannot do what is, otherwise, barred by the Constitution, namely, act arbitrarily. The State, in terms of the law governing the filed, is required to opine that instead of allowing the Municipal Council to continue, when the Municipal Council has been upgraded to a Municipal Corporation, it would be expedient to dissolve the Municipal Council. It is a requirement in law for such a State to hold out before expressing such an opinion that the same is expedient, and to establish that the opinion is just, it is required to give hearing to those against whom such an opinion is likely to be given. In the circumstances, the conclusion would be that the opinion, referred to in Section 8-AA of the said Adhiniyam, cannot be given without hearing, nor the same can be treated as fait accompli, that hearing would become a mere formality. In the circumstances, the conclusion would be that the opinion, referred to in Section 8-AA of the said Adhiniyam, cannot be given without hearing, nor the same can be treated as fait accompli, that hearing would become a mere formality. In the matter of expressing an opinion of the nature, as called for in the said Section, it is obligatory on the part of the State to ascertain whether it is expedient to do so, and in that regard, it is required to consider many a things and, accordingly, there is no just reason why it should not take into consideration the views, that may be expressed by persons against whom the opinion is to be expressed, by giving them an opportunity of hearing. It is true that in Section 8-AA of the said Adhiniyam, there is no provision for giving an opportunity of hearing. It is settled law that when a thing, which is otherwise permissible, to bring the same to an end, the persons likely to be affected thereby are required to be given an opportunity of hearing. 10. We are also of the view that Article 243-Q, which authorizes upgradation of a Municipal Council to a Municipal Corporation, does not contemplate giving of an opportunity of hearing before a decision to do so is taken and, accordingly, when steps are taken to make such upgradation, no hearing is required to be given, but when, as a consequence of such upgradation, a Municipal Council is to be dissolved, unless the law, for the time being in force, provides that such upgradation automatically dissolves the Municipal Council, which has been upgraded to a Municipal Corporation, the said Municipal Council is entitled to an opportunity of hearing and the same is sine qua non for effecting dissolution of such a Municipal Council and that appears to be the mandate of Article 243-U of the Constitution.” 15. Statement has been given at the bar by the learned counsels appearing for the petitioners, a fact which is admitted by the learned counsels for the respondents, that consequent to the said order dated 23.6.2011 none of the parties approached the Hon’ble Apex Court by means of a Special Leave Petition. In other words, judgment of the Division Bench has attained a finality! In other words, judgment of the Division Bench has attained a finality! The net result therefore would be that order dated 20.5.2011 by which the two municipal councils have been dissolved, has been held to be illegal and unconstitutional. The dissolution of the two municipal councils was not only set aside but the two municipal councils stood revived. Naturally, it would also mean that consequent to the said order the two municipal councils would start functioning, as they were doing prior to 20.5.2011. However, since the operation of the Division Bench order was stayed for a period of three weeks, the order dated 20.5.2011 was logically in effect for a period of three weeks which would again mean that the two municipal councils could remain dissolved for a period of three weeks and the administrator appointed by the State Government could function in place of the elected representative of the said local bodies. The three weeks’ period came to an end on 13.7.2011. There is nothing on record to show that there was any order of the State Government consequent to the order of the Division Bench of this Court, regarding handing over the charge to the elected representatives of these municipalities or that the two municipalities started functioning with business as usual. Two orders which have been placed on record by the respondents before this Court are dated 13.7.2011 and 16.7.2011, whereby the two administrators who were administering the municipal councils of Haridwar and Haldwani respectively consequent to the dissolution of the municipal councils, relinquished the charge of the administrators. Consequently vide order dated 21.7.2011 two orders have been passed by the State Government which were a mere repetition of the earlier order dated 20.5.2011 (which earlier stood quashed by this Court), by which the municipalities were dissolved and an Administrator was appointed in its place. 16. One of the principle contention of challenge by the petitioners before this Court again is that the municipalities were not given any opportunity of hearing, much less a “reasonable opportunity of hearing” before passing the impugned order dated 21.7.2011. The contention of the petitioners would be that the State Government had given a notice dated 29.6.2011 in the newspapers asking objections from the erstwhile Chairman, Councilors as well as from “general public”, under proviso to Article 243 U of the Constitution of India. The contention of the petitioners would be that the State Government had given a notice dated 29.6.2011 in the newspapers asking objections from the erstwhile Chairman, Councilors as well as from “general public”, under proviso to Article 243 U of the Constitution of India. The English translation of the said notice, which is in Hindi would read as under :- Government of Uttarakhand Urban Development Section-I No.: 682/IV-I-2011-1(57) 2010 Dehradun : Dated 29th June, 2011 Public Notice Under Section 3 sub-section (2) of Uttar Pradesh Municipal Corporation Act, 1959 (U.P. Act No. 2 of 1959) (as applicable in the State of Uttarakhand) read with Article 243 U of Part 2, it is the considered opinion of the State Government that smaller Urban Area Nagar Palika Parishad, Haridwar be converted into a larger Urban Area and consequently into a Municipal Corporation, Haridwar. In view of the above, the Chairman of Nagar Palika Parishad, Haridwar, the councilors of Nagar Palika Parishad, Haridwar and the entire public who ordinarily reside in the said area are invited to give their objections and suggestions. The written objections and suggestions should reach the office of Director, Department of Urban Development, Uttarakhand 43/6, Mata Mandir Marg, Dharmpur, Dehradun by 11th July 2011. Any suggestion and objection received after the said notified date will not be accepted. On the receipt of the written objections and suggestions, a hearing would be done on 13th July 2011by Principal Secretary, Urban Development Department, Government of Uttarakhand in the office of Director, Department of Urban Development, Uttarakhand 43/6, Mata Mandir Marg, Dharmpur, Dehradun. The time would be 1.30 P.M. to 4.00 P.M. During the hearing the persons would also be given an opportunity of personal hearing. After receiving such objections and suggestions and after considering the same, the final decision to convert the place into a larger Urban Area will be taken. (Dr. Ranbir Singh) Principal Secretary 17. It must be clarified that the above notice pertains to Haridwar municipality. With the same material facts another notice was given regarding Haldwani municipality although that notice is dated 8.7.2011. In other words, for Haldwani municipality a notice is published on 8.7.2011 whereby all objections and suggestions were to reach the office by 11.7.2011 and the hearing was to be done on 13.7.2011. In their counter affidavit, the State have submitted that hearing actually took place on 16.7.2011 in Haridwar and 17.7.2011 at Haldwani. In other words, for Haldwani municipality a notice is published on 8.7.2011 whereby all objections and suggestions were to reach the office by 11.7.2011 and the hearing was to be done on 13.7.2011. In their counter affidavit, the State have submitted that hearing actually took place on 16.7.2011 in Haridwar and 17.7.2011 at Haldwani. 18. In other words, inter alia, the State Government had sought objections, which according to it amounts to a “reasonable opportunity of hearing”, in compliance of the mandatory provision of the Constitution of India, under proviso to Article 243 U. The petitioners would argue, on the other hand, that the opportunity of hearing had to be given to a “municipality”, before its dissolution as it is contemplated under proviso to Article 243 U of the Constitution of India and not after it had been dissolved, since the provision states that “a Municipality shall be given a reasonable opportunity of being heard before its dissolution”. 19. Undoubtedly, on a bare reading of the proviso to Article 243 U, only one meaning can be derived which is that before dissolving a municipal council, it had to be given a “reasonable opportunity of hearing”. Not only a reasonable opportunity of hearing had to be given but this opportunity of hearing had to be given before a decision to dissolve such a council has taken place. In other words, a reasonable opportunity of hearing must precede the dissolution and cannot be post decisional! It is a mandate of the Constitution of India that a reasonable opportunity of hearing would mean a pre-decisional hearing and not a post-decisional hearing. 20. It has been clearly stated in the Writ Petition (M/S) No. 1533 of 2011 that the Municipal Council, Haridwar has never been revived. Therefore, once the municipal council was never revived, consequent to its dissolution on 20.5.2011, how could such a municipality be heard! Para 13 of the Writ Petition (M/S) No. 1533 of 2011 reads as under : “13. That the respondent no.1 issued a public notice dated 29.6.2011 whereby the objections were invited from the public at large as well as from the Municipal Council. It is pertinent to mention that pursuant to the order passed by this Hon’ble Court dated 9.6.2011 the position of Municipal Council Haridwar was not revived. Therefore the Municipal Council was not heard by the respondent by the respondent no.1. It is pertinent to mention that pursuant to the order passed by this Hon’ble Court dated 9.6.2011 the position of Municipal Council Haridwar was not revived. Therefore the Municipal Council was not heard by the respondent by the respondent no.1. A copy of the public notice dated 29.6.2011 is being filed herewith and marked as Annexure No.4 to this writ petition.” 21. Reply given to the said para in the counter affidavit filed by the State is as under :- “13. That the contents of paragraph no. 13 of the writ petition are not admitted as stated, hence, denied. It is submitted that the Hon’ble Single Judge vide order dated 9.6.2011 quashed the earlier notification dated 20/5/2011 and directed the Administrators to hand over the charge to the elected member of the concerned Municipal Councils. The Division Bench in the Special Appeals filed by the State Government directed for the maintenance of status-quo, as such, the Administrator did not hand over charge to the elected members. The Special Appeal was dismissed on 23/6/2011 holding that before dissolution the Municipality concerned was required to be heard, but the Hon’ble Court granted stay of the order dated 23/6/2011 for three weeks. Since, the Hon’ble Court had given a specific finding in regard to the non-compliance of principle of natural justice, the respondent issued a public notification dated 29/6/2011 and invited objections from the elected members of Municipal Council Haridwar as well as Chairman and public at large. The entire exercise regarding the disposal of objections and compliance of principle of natural justice has already been narrated in preceding paragraphs of this counter affidavit, which are reiterated in reply to the contents of answering paragraph. In reply to the contention of the petitioner that Municipal Council Haridwar was not revived and as such, it could not be heard; it is submitted that in the Special Appeal preferred by the State against the order of the learned Single Judge dated 9.6.2011, the Division Bench has directed to maintain the status-quo. Therefore, the individual notices were sent to the elected Municipal Councillors giving them opportunity of hearing. In pursuance to the order of the Division Bench for maintaining status-quo, the Administrator of Municipal Corporation Haridwar continued to function.” 22. Similarly, in Writ Petition (M/S) No. 1548 of 2011, in para 12 and 13 following averments have been made : 12. Therefore, the individual notices were sent to the elected Municipal Councillors giving them opportunity of hearing. In pursuance to the order of the Division Bench for maintaining status-quo, the Administrator of Municipal Corporation Haridwar continued to function.” 22. Similarly, in Writ Petition (M/S) No. 1548 of 2011, in para 12 and 13 following averments have been made : 12. That inspite of the above said orders of the Hon’ble High Court and the objections filed by the petitioners, respondents in the most arbitrary, unusual and blatant manner again dissolved duly elected Municipal Council of Haldwani-Kathgodam by notification no.798/IV(1)-2011-1(57)2010 dated 21.7.2011 without giving any opportunity of hearing to the Municipality and appointed District Magistrate as an Administrator vide notification no. 799/IV(1)-2011-1(57)2010 dated 21.7.2011 that too without giving an opportunity of hearing to the Municipality. True copies of the said notification no. 798/IV(1)-2011-1(57)2010 dated 21.7.2011 and notification no. 799/IV(1)-2011-1(57)2010 dated 21.7.2011 are being filed herewith and marked as ANNEUXRE NOS. 7 & 8 respectively to this writ petition. 13. That a perusal of both the aforesaid orders i.e. of Hon’ble Single Judge and of Hon’ble Division Bench makes it apparent clear that since no opportunity of hearing was accorded to the Municipal Council under the proviso to Article 243-U, the dissolution of Municipal Council of Haldwani-Kathgodam was held to be illegal and bad in law. 23. In reply to the said averments, the State in its counter affidavit has stated as under : “11. That the contents of paragraph nos. 12 & 13 of the writ petition are not admitted as stated, hence, denied. The contention of the petitioners that the Municipality was not given opportunity of hearing is wrong and denied. In fact, all the petitioners were duly served the copy of public notification dated 8/7/2011 and they have filed their representation/objection by 16/7/2011, which was duly considered by the Principal Secretary, Urban Development while passing order dated 19/7/2011. Since, the petitioners have filed their objection and the same has been decided, they cannot contend that opportunity of hearing was not provided to them. Since, the petitioners have filed their objection and the same has been decided, they cannot contend that opportunity of hearing was not provided to them. Since, the Municipality was ‘in suspension’ in pursuance to the order of Division Bench for maintaining status-quo and as such, the notices were sent to all the councilors and the Chairman and they have an opportunity to file their objection, but in absence of any objection from other councillors apart from the petitioners it cannot be said that opportunity was not given to the Municipal Council.” 24. In other words, it is admitted by the State that there is no specific order passed by it to revive the municipality. As such, the logical conclusion would be that the municipality was never revived, in other words, there was no municipality at the time of the so called hearing. Any hearing given to members of general public or to even councillors of the dissolved council has no relevance. Councillors do not have any independent existence in absence of its council. On the designated day which is 13.7.2011 for Haridwar and 13.7.2011 for Haldwani there was no municipality in existence, hence there was no hearing, much less a reasonable hearing as contemplated under the proviso to Article 243 U of the Constitution of India. Such was the case even on 16.7.2011 and 17.7.2011 when effectively such “hearing” took place. 25. The State, on the other hand, has argued that after the order of the Division Bench, since the Division Bench itself has stayed the operation of the order for a period of three weeks, the administrators continued to function till 13.7.2011 and relinquished the charge on 13.7.2011 as regarding Haridwar Municipal Council and on 16.7.2011 as regarding Haldwani Municipal Council. Further, in terms of the notice dated 29.6.2011, which had already been issued the Chairman, the elected representatives of the municipal councils as well as the general public were heard and their contentions were not accepted, as regarding the dissolution of the municipalities and subsequently the order for dissolution were passed. 26. This Court is of the considered view that the procedure adopted by the State Government is not a procedure as contemplated under Proviso to Article 243 U to the Constitution of India. In other words, no opportunity of hearing, much less any reasonable opportunity of hearing has been given as contemplated under the said proviso. 26. This Court is of the considered view that the procedure adopted by the State Government is not a procedure as contemplated under Proviso to Article 243 U to the Constitution of India. In other words, no opportunity of hearing, much less any reasonable opportunity of hearing has been given as contemplated under the said proviso. This Court on an earlier occasion on the same ground (that opportunity of hearing was not given), had quashed the dissolution of the two municipalities. The same act has been repeated again. 27. When the Constitution of India prescribes a certain mode or method of performing an act by an authority, then the authority can only perform the act by the method prescribed under the Constitution. It cannot ignore, deviate or bye-pass that method! When it acts in any other manner than what is provided under the Constitution of India and further while doing so it impinges upon any rights, that too the rights of an elected body, such an act would be a deception or a subterfuge, as observed by the Hon’ble Apex Court, though in a different context, in its seminal judgment of Dr. D.C. Wadhwa and others vs. State of Bihar and others reported in (1987) 1 SCC 378 stating as under : “If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision.” 28. This Court has no doubt in its mind whatsoever that the action of the State Government presently under challenge is arbitrary, illegal and unconstitutional. It has been done by the powers that be, in the colourable exercise of its powers. 29. The writ petitions are therefore allowed. The orders dated 21.7.2011 (annexure nos. 6 and 7 to the writ petition M/S No.1533 of 2011) and orders dated 21.7.2011 (annexure no. 7 and 8 to the writ petition M/s No. 1548 of 2011) are hereby quashed. The two municipal councils now stand revived. The two Administrators i.e. District Magistrate, Haridwar as well as the District Magistrate, Nainital are hereby directed to handover the charge forthwith to the elected representatives of these municipalities. 30. No order as to costs.