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Rajasthan High Court · body

2015 DIGILAW 950 (RAJ)

Ashok Khetoliya v. State of Rajasthan

2015-04-28

AJIT SINGH, PRAKASH GUPTA

body2015
JUDGMENT : By this petition the petitioner has prayed for quashing of notification dated 12.8.2014 (Annexure-1), issued by the respondents whereby Gram Panchayat Roopbas, District Bharatpur, has been declared as Municipal Board. 2. The petitioner is resident of village Roopbas and is also an Ex-Sarpanch of that village. According to him, notification dated 12.8.2014 declaring Gram Panchayat Roopbas as Municipal Board is illegal because the same has been issued in utter violation of Article 243Q(2) of the Constitution. The Advocate General on the other hand has strongly defended the validity of notification. 3. The sole question which calls for our consideration is whether notification dated 12.8.2014 (Annexure-1) declaring Gram Panchayat Roopbas as Municipal Board is legal and valid. 4. Part IXA including Article 243Q was inserted into the Constitution by seventy-fourth amendment with effect from 1.6.1993. This Article mandates every State to constitute a Municipality for a transitional area, smaller urban area and larger urban area. This Article reads as under:- 243 Q. 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. 5. 5. From the above quoted Article 243Q it is clear that the State shall constitute a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from rural to an urban area; Municipal Council for a smaller urban area; and a Municipal Corporation for a larger urban area, in accordance with the provisions of Part IXA. Article 243Q(2) defines these three areas to mean such areas 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 the Governor may deem fit, specify by public notification for the purposes of Part IXA. 6. Section 2(lxv) of the Rajasthan Municipalities Act, 2009 (in short 'the Municipalities Act') defines “a transitional area”, “a smaller urban area” or “a larger urban area” to mean an area specified under Article 243Q of the Constitution of India. Meaning thereby, “a transitional area”, “a smaller urban area” or “a larger urban area” shall be an area specified by public notification under Article 243Q(2) of the Constitution of India. 7. Section 5 of the Municipalities Act deals with establishment and incorporation of Municipality. Its sub-section (1) provides that in every transitional area, there shall be established a Municipal Board and every such Municipal Board shall be a body corporate by the name of Municipal Board of the place by reference to which the Municipality is known and shall have perpetual succession and a common seal and may sue or be sued in its corporate name. 8. No public notification as contemplated under Article 243Q(2) of the Constitution has been produced before us specifying Gram Panchayat Roopwas as “a transitional area” having regard to its population, the revenue generated for local administration, the percentage of employment in nonagricultural activities, the economic importance or any other factor which the Government deemed fit. Therefore, in the absence of such notification issued under signature of Governor of the State, Gram Panchayat Roopwas cannot be treated as “a transitional area”. And when Roopwas cannot be treated as “a transitional area”, it cannot be declared as Municipal Board. 9. Annexure-R-1 dated 30.4.2012 filed by the return is a general notification issued under Section 329 of the Municipalities Act. And when Roopwas cannot be treated as “a transitional area”, it cannot be declared as Municipal Board. 9. Annexure-R-1 dated 30.4.2012 filed by the return is a general notification issued under Section 329 of the Municipalities Act. It only classifies the Municipalities in the State of Rajasthan as Municipal Corporation, Municipal Council and Municipal Board, on the basis of population mentioned therein. It is also not the case of respondents in reply filed that this notification was one under Article 243Q(2) of the Constitution specifying Roopwas as “a transitional area”. Annexure-R-3 dated 7.2.2014 is a report prepared by the Sub-Divisional Officer, Roopwas, addressed to Collector, Bharatpur, on the latter's telephonic instructions regarding declaration of Gram Panchayat Roopwas as Municipal Board. And even then no public notification by the Governor specifying Gram Panchayat Roopwas as “a transitional area” has been made as mandated under Article 243Q(2). The notification dated 30.4.2012 (Annexure-R-1) published much prior to the report of Sub-Divisional Officer, therefore, does not help the respondents. The learned Advocate General lastly relied upon the decision of Supreme Court in Saij Gram Panchayat Vs. State of Gujarat (1999) 2 SCC 366 . But this decision deals with proviso to clause (1) of Article 243Q which provides that Municipality may not be constituted in such urban area or part thereof which the Governor by public notification specify to be an industrial township. Thus, the decision has no relevance in the present case. 10. For these reasons, we quash the notification dated 12.8.2014 declaring Gram Panchayat Roopwas, District Bharatpur, as a Municipal Board. 11. The petition is allowed but with no cost.