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2014 DIGILAW 534 (PNJ)

Sahni Carpets v. State of Haryana

2014-03-12

ARUN PALLI, SANJAY KISHAN KAUL

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JUDGMENT : ARUN PALLI, J. A notification dated 13/22.1.1997 under Section 4, sub-section (1) of the Haryana Municipal Act, 1973 (for short the Municipal Act) was issued by the State with an intent to include within the municipality of Sadhaura, the area shown within the boundaries specified in the schedule appended with the notification. The inhabitants of the municipality or the local area were afforded an opportunity to submit objections, if any, to the proposed alteration of the municipal limits. 2. The objections were filed by the petitioners to the said notification vide Annexure P-2 and P-3 dated 21.2.1997 and 24.2.1997, respectively. 3. Notification under Section 4(3) of the Municipal Act, dated 12.9.1997 (Annexure P-4) was eventually issued by the State Government and the area specified in the notification dated 13/22.1.1997 was included within the limits of Municipal Committee Sadhaura. 4. The precise grievance being expressed by the petitioners is that before issuance of a final notification under Section 4(3) of the Municipal Act, the Government had failed to consider their objections and they were not afforded any opportunity of hearing. Thus, the notification dated 12.9.1997 (Annexure P-4) issued under Section 4(3) of the Municipal Act was invalid and unsustainable. A reliance is placed on a decision of the Hon’ble Supreme Court in Baldev Singh and others v. State of H.P. and others, AIR 1987 Supreme Court 1239. 5. The State Government in its written statement has stated in no uncertain terms that the objections preferred by the petitioner Nos.1, 3 and 4 were initially examined by the Deputy Commissioner, Yamuna Nagar and then by the Director, Local Bodies, Haryana in detail. The said objections were eventually considered at the level of the Government and it was found that there was no substance in them. Accordingly, the objections filed by the petitioners were rejected by the State after due consideration. It is only thereafter, the notification under Section 4(3) of the Municipal Act was issued. 6. The learned State Counsel contends that all what the provisions of Section 4 of the Municipal Act postulate and promise is an opportunity to file objections. The provisions do not conceive or contemplate any right of personal hearing. Thus, the Government was not obliged to afford any hearing to the inhabitants. 7. We have heard learned counsel for the parties and perused the records. 8. The provisions do not conceive or contemplate any right of personal hearing. Thus, the Government was not obliged to afford any hearing to the inhabitants. 7. We have heard learned counsel for the parties and perused the records. 8. Before we proceed further, it would be apposite to refer to the provisions of Section 4 of the Municipal Act which read as thus: 4. Notification of intention to alter limits of municipality. (1) The State Government may, by notification, and in such other manner as it may determine, declare its intention to include within a municipality any local area in the vicinity of the same and defined in the notification. (2) Any inhabitant of a municipality or local area in respect of which a notification has been published under sub-section (1), may, should be object to the alteration proposed, submit his objection in writing through the Deputy Commissioner to the State Government within six weeks from the publication of the notification; and the State Government shall take such objection into consideration. (3) When six weeks from the publication of the notification have expired, and the State Government has considered the objections, if any, which have been submitted under sub-section (2), (he State Government may, by notification, include the local area in the municipality. (4) When any local area has been included in a municipality under sub-section (3), this Act, and, except as the State Government may, by notification, direct otherwise, all notifications; rules; bye-laws, order, directions and powers issued made, or conferred under this Act and in force throughout whole of the municipality at the time, shall apply to such area. Ex facie, a plain reading of the afore-reproduced provisions of the Act irresistibly shows that all what the said provisions postulate and promise to the inhabitants of the municipality or a local area is the right to file objections to the proposed alterations of the municipal limits to include certain areas within the municipality. Likewise, the State Government is obligated to consider the said objections before issuing a final notification under Section 4(3) of the Municipal Act. In short, a declaration under Section 4(3) of the Municipal Act has to be preceded by a due consideration of the objections of the inhabitants at the end of the State Government. The said provisions indeed do not contemplate or promise any right of personal hearing to the inhabitants. In short, a declaration under Section 4(3) of the Municipal Act has to be preceded by a due consideration of the objections of the inhabitants at the end of the State Government. The said provisions indeed do not contemplate or promise any right of personal hearing to the inhabitants. The legislature in its legislative wisdom has not chosen to provide any such right. Thus, none can be presumed either by necessary implication or implied legislative intent. We must point out here that the petitioners never controverted the categorical stand set out by the State in its written statement. No replication or counter-affidavit was filed to controvert the aforesaid position. 9. The reliance placed by the learned counsel for the petitioners upon a decision of the Hon’ble Supreme Court in Baldev Singhs case ( AIR 1987 SC 1239 ) (supra) also does not advance their case. There cannot be any quarrel with the proposition of law that wherever the executive action of the State Government entails civil consequences or affects the civil rights of an individual, opportunity of being heard has to be afforded. It was in this context, the Hon’ble Supreme Court had observed that inclusion of an area covered by the Gram Panchayat within a notified area would certainly involve civil consequences. In such circumstances, it was observed, it is necessary that people who would be affected by the change should be given an opportunity of being heard otherwise they would be visited with serious consequences like loss of office in Gram Panchayats, an imposition of a way of life, higher incidence of tax and the like. 10. Needless to assert, the powers exercised by the State Government under Section 4 of the Municipal Act is legislative in character and is exercised to discharge the legislative functions. This being so, we cannot persuade ourselves to accept the contention of the petitioners that affording of opportunity of hearing to the inhabitants was mandatory and in the absence thereof, the Notification under Section 4 (3) of the Municipal Act was not sustainable. We are supported, in our view and perspective, by a decision of the Hon’ble Supreme Court in State of Punjab v. Tehal Singh, AIR 2002 SC 533 . The relevant paragraphs of the judgment are reproduced below: 5. We are supported, in our view and perspective, by a decision of the Hon’ble Supreme Court in State of Punjab v. Tehal Singh, AIR 2002 SC 533 . The relevant paragraphs of the judgment are reproduced below: 5. Once it is found that the power exercisable under Sections 3 and 4 of the Act respectively is legislative in character, the question that arises is whether the State Government, while exercising that power, the rule of natural justice is required to be observed? It is almost settled law that an act legislative in character primary or subordinate, is not subjected to rule of natural justice. In case of legislative act of legislature, no question of application of rule of natural justice arises. However, in case of subordinate legislation, the legislature may provide for observance of principle of natural justice or provide for hearing to the resident of the area before making any declaration in regard to the territorial area of a Gram Sabha and also before establishing a Gram Sabha for that area. We have come across many enactments where an opportunity of hearing has been provided for before any area is excluded from one Gram Sabha and included it in different Gram Sabhas or a local authority. However, it depends upon the legislative wisdom and the provisions of an enactment. Where the legislature has provided for giving an opportunity of hearing before excluding an area from a Gram Sabha and including it in another local authority or body, an opportunity of hearing is sine qua non and failure to give such an opportunity of hearing to the residents would render the declaration invalid. But where the legislature in its wisdom has not chosen to provide for any opportunity of hearing or observance of principle of natural justice before issue of a declaration either under Section 3 or Section 4 of the Act, the residents of the area cannot insist for giving an opportunity of hearing before the area where they are residing is included in another Gram Sabha or local authority. In Ramesh-chandra Kachardas Porwal Ors. v. State of Maharashtra ( AIR 1981 SC 1127 ) (supra), this court held as thus: In one of the Bihar cases it was further submitted that when a market yard was disestablished at one place and established at another place, it was the duty of the concerned authority to invite and hear objections. In Ramesh-chandra Kachardas Porwal Ors. v. State of Maharashtra ( AIR 1981 SC 1127 ) (supra), this court held as thus: In one of the Bihar cases it was further submitted that when a market yard was disestablished at one place and established at another place, it was the duty of the concerned authority to invite and hear objections. Failure to do so was a violation of the yard at one place and establishing it elsewhere was therefore, bad. It was objections before a market area was declared under the Act, so should objection be invited and heard before a market yard was established at any particular place. The principles of natural justice demanded it. We are unable to agree. We are here not concerned with the exercise of a judicial or quasi-judicial function where the very nature of the function involves the application of the rules of natural justice, or of an administrative function affecting the rights of persons, wherefore, a duty to act fairly. We are concerned with legislative activity; we are concerned with the making of a legislative instrument, the declaration by notification of the Government that a certain place shall be a principal market yard for a market area, upon which declaration certain statutory provisions at once spring into action and certain consequences prescribed by statute follow forthwith. The making of the declaration, in the context, is certainly an act legislative in character and does not oblige the observance of the rules of natural justice. In the present case, the provisions of the Act do not provide for any opportunity of hearing to the residents before any area falling under a particular Gram Sabha is excluded and included in another Gram Sabha. In the absence of such a provision, the residents of that area which has been excluded and included in a different Gram Sabha cannot make a complaint regarding denial of opportunity of hearing before issue of declarations under Sections 3 and 4 of the Act respectively. However, the position would be different where a house of a particular resident of an area is sought to be excluded from the existing Gram Sabha and included it in another Gram Sabha. There the action of the Government being directed against an individual, the Government is required to observe principles of natural justice. However, the position would be different where a house of a particular resident of an area is sought to be excluded from the existing Gram Sabha and included it in another Gram Sabha. There the action of the Government being directed against an individual, the Government is required to observe principles of natural justice. For the aforesaid reasons, we are of the view that no opportunity of hearing was required to be given before making declarations either under Section 3 or Section 4 of the Act by the Government. 6. Coming to the second question, the High Court had taken a view that since an opportunity of hearing was required to be given before issuing a declaration under Sections 3 of the Act, therefore, notifications under Sections 3 and 4 could not have been issued simultaneously has to be held erroneous, once we held that no opportunity of hearing was required to be given before issue of declaration under Section 3 of the Act. 11. We are also reminded to point out at this juncture that the Division Bench of this Court while admitting the petition on 5.3.1998 had passed the following order:- Cites 1994 (2) PLR 234. Admitted D.B. To be listed for final hearing within six months. Operation of notification dated 12.9.1997 Annexure P-4 is stayed qua petitioners 1, 3 and 4 only subject to the conditions, (i) that petitioners 1, 3 and 4 shall not raise any further construction on the area falling within the extended municipal limits without prior permission of the Municipal Committee concerned; (ii) It will be open to the Municipal Committee to assess the properties of these petitioners for the purpose of property/house tax according to law but the recovery of the amount under those orders shall not be effected as learned counsel for the petitioners has undertaken before us that the petitioners shall pay the amount in that behalf immediately in the eventuality of the writ petition being dismissed; (iii) the petitioners shall supply full information at the concerned octroi posts regarding goods brought by them within the municipal limits and officer/official-in-charge of such octroi post/posts shall issue necessary slips to the petitioners in Form O-V so as to enable them to keep account of the goods of each of the petitioners for the purpose of octroi. The payment of amount of octroi shall however, not be demanded from the above petitioners for the time being and the petitioners shall be liable to pay the amount of octroi in the eventuality of the writ petition being dismissed. It will thus be open to the Municipal Committee concerned to keep a detailed account of the goods of those petitioners and even calculate the octroi thereon so that the same can be recovered in the eventuality of the writ petition being dismissed. 12. As we have already observed that the petitioners were only entitled to file objections under Section 4(2) of the Municipal Act and also the consideration thereof under sub-section (3) at the end of the State Government. The objections having been duly solicited and considered by the State Government before issuing notification under Section 4(3), we do not find any irregularity in the process adhered to by the State Government, least an illegality in the notification-Annexure P/4 dated 12.9.1997. 13. As is clearly discernible from the order dated 5.3.1998 (supra) that in the event of the petition being dismissed the petitioners were obligated to meet their liability vis-a-vis the payment of octroi and property/house tax, we are cognizant of the fact that the operation of the notification in question has remained stayed qua petitioner Nos. 1, 3 and 4 for over 14 years. We are informed by the learned State counsel that the octroi had been abolished by the State in the year 1999. We are also informed that even the Municipal Committee of Sadhaura itself was abolished by the State Government vide its notification dated 28.2.2007. This being so, in the peculiar facts and circumstances of the present case and to put a quietus to the matter, we though dismiss the petition, however, we hold that the petitioners would not be liable to meet any liability as perceived by the afore-reproduced order dated 5.3.1998 either in terms of payment of octroi or towards the property/house tax. 14. Resultantly, the petition is dismissed and interim orders stand vacated in the aforesaid terms. Petition dismissed.