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2018 DIGILAW 68 (UTT)

Reeta Sharma v. State

2018-02-23

RAJIV SHARMA

body2018
JUDGMENT : Rajiv Sharma, J. Petitioner no.1 was the elected Village Pradhan of Village Central Hopetown, Selaqui and the notification to this effect was issued vide Annexure No. 1 dated 28.6.2012. The respondent-State has issued the notification on 16.10.2015 which was published in the daily edition of ‘Amar Ujala’ on 31.10.2015, whereby, it was proposed to convert the Village Panchayat to Nagar Panchayat, Selaqui. The objections were to be lodged within seven days. Petitioners and similarly situate persons filed their objections, objecting to the conversion of Village Panchayat to Nagar Panchayat. 2. According to the averments made in the objections, 98% of the land was agricultural and only 2% of land was used for industrial purposes. 3. The State Government has issued the notification on 24.11.2015 whereby the Nagar Panchayat Selaqui was constituted. 4. Case of the petitioners, in a nutshell, is that the objections filed by them, on various dates, have not been taken into consideration and the decision is contrary to the provisions of U.P. Municipalities Act, 1916 r/w Article 243Q of the Constitution of India. 5. The District Magistrate, Dehradun has filed the reply on behalf of the respondent nos.4 and 5. It is stated in paragraph no. 10 of the reply that no objections/suggestions were received within the prescribed period. 6. The Joint Secretary, Urban Development Department, Dehradun has also filed the reply on behalf of the Respondent no. 2. The gist of the reply is that the conversion of Village Panchayat to Nagar Panchayat, Selaqui was necessary for overall development 7. I have heard learned Counsel for the parties and gone through the entire file. 8. For the sake of convenience, Section 3, 3-A, 4 and 5 of the U.P. Municipalities Act are quoted below: - “3. Declaration etc. of transitional area and smaller urban area.— (1) The Governor may, having regard to the population of any local area, the density of the population therein, the revenue generated or local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, by notification in the official gazette,— [(1) Any area specified by the Governor in a notification under Clause (2) of Article 243-Q of the Constitution with such limits as are specified therein to be a transitional area or a smaller urban area, as the case may be. (2) The Governor may, by a subsequent notification under Clause (2) of Article 243-Q of the Constitution, include or exclude any area in or from a transitional area or a smaller urban area referred to in sub-section (1), as the case may be. [(3) The notification referred to in subsections (1) and (2) shall be subject to the condition of the notification being issued after the previous publication required by Section 4 and notwithstanding anything in this section, no area which is, or is part of, a cantonment shall be declared to be a transitional area or a smaller urban area or be included therein under this section.” “3-A. Municipality for every transitional area and smaller urban area.—(1) A municipality constituted under Clause (1) of Article 243-Q of the Constitution in accordance with Part IX-A thereof shall— (a) for every transitional area, be known as the Nagar Panchayat; (b) for every smaller urban area be known as the Municipal Council; (2) Every Nagar Panchayat or Municipal Council constituted under sub-section (1), shall be a body corporate. (3) Notwithstanding anything in sub-section (1),— (a) every Municipal Board existing immediately before the commencement of the Uttar Pradesh Urban Local Self Government Laws (Amendment) Act, 1994, shall, [from such commencement and until the first constitution of the Municipal Council under this Act as amended by the said Act be deemed to be a Municipal Council under the Act. (b) every notified area committee constituted under Section 338 or Town Area Committee constituted under the U.P. Town Areas Act, 1914 as it stood immediately before the commencement of the Act referred to in Clause (a), shall [from such commencement and until the first constitution of the Nagar Panchayat under this Act as amended by the Act referred to in Clause (a) be deemed to be a Nagar Panchayat under this Act.” “4. Procedure preliminary to notification.—(1) Before the issue of a notification under Section 3 the [Governor] shall publish in the official Gazette [and in a paper, approved by it for purposes of publication of public notices, published in the district or, if there is no such paper in the district, in the division in which the local area covered by the notification is situate] and cause to be affixed at the office of the District Magistrate and at one or more conspicuous places within or adjacent to the local area concerned, a draft in Hindi of the proposed Notification along with a notice stating that the draft will be taken into consideration on the expiry of the period as may be stated in the notice; and (2) The [Governor) shall, before issuing the notification, consider any objection of suggestion in writing which it receives from any person, as respect of the draft, within the period stated.” “5. Effect of including area in [transitional area or a smaller urban area].— [Where by a Notification referred to in sub-section (2) of Section 3, the Governor includes any area in a [transitional area or a smaller urban area] such area shall thereby become subject to all notifications, rules, regulations, bye-laws, orders, directions, issued or made under this or any other enactment and in force throughout the [transitional area or a smaller urban area] at the time immediately preceding the inclusion of the area.” It is evident from a plain language of sub-section (1) of Section 3 that the Governor may make a declaration of transitional area and smaller urban area, taking into consideration the population of any local area, the density of population, the revenue generated or local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors he may deem fit. 9. The objections are required to be called as per Section 4 of the Act of 1916, in respect of the draft, within the period stated. In the present case, the tentative notification was issued on 16.10.2015. It appeared in the daily edition of ‘Amar Ujala’ on 31.10.2015. The objections were to be filed within seven days after 31.10.2015. 10. A false averment has been made by the respondent nos.4 and 5 that the objections/suggestions were not received. In the present case, the tentative notification was issued on 16.10.2015. It appeared in the daily edition of ‘Amar Ujala’ on 31.10.2015. The objections were to be filed within seven days after 31.10.2015. 10. A false averment has been made by the respondent nos.4 and 5 that the objections/suggestions were not received. In fact, as per the information placed on record, sought by way of the Right to Information Act, 2005, the objections were received from various persons including the petitioners. Petitioners have placed on record the ‘noting portion’ whereby the decision was taken to convert the Gram Panchayat into Nagar Panchayat. It is at page no.189 of the paper book dated 7.11.2015. 11. It is stated in the ‘noting portion’ that Serial Nos.1 to 12 have opposed the constitution of Gram Panchayat, Selaqui and from Serial Nos. 13 to 30, the persons have supported the constitution of Gram Panchayat, Selaqui. 12. Neither in the notification nor in the pleadings, there is any mention that the State has taken into consideration the population of local area, the density of population, the revenue generated or local administration, the percentage of employment in non-agricultural activities, the economic importance or any other factors. In the affidavit filed by the respondents, the population of only 16880 has been mentioned. 13. According to the pleadings of the petitioner, which have not been specifically denied by the respondent-State, the agricultural land of the village is 98% and remaining only 2% land is used for industrial purposes. 14. Petitioners have filed details objections to the tentative notification dated 16.10.2015. However, the same have not been taken into consideration in a right perspective. 15. It is settled law that in judicial review, the Court is not concerned about the final decision but it is concerned with the decision making process. What is said by the State in the ‘noting portion’ is that the Cabinet has approved the conversion of Village Panchayat to Nagar Panchayat and the notification was issued under sub-section (1) of Section 3 of the Act of 1916 r/w Article 243 of the Constitution of India. Thereafter, abruptly, it is stated that the objections were without merit and unreasonable. How the objections, filed by the petitioners and the similarly situate persons, were without merit and unreasonable, has not been spelt out. The objections filed by the petitioners were to be considered in accordance with law. Thereafter, abruptly, it is stated that the objections were without merit and unreasonable. How the objections, filed by the petitioners and the similarly situate persons, were without merit and unreasonable, has not been spelt out. The objections filed by the petitioners were to be considered in accordance with law. Even in the ‘noting portion’, the factors which are sina qua non i.e. the population of local area, the density of population, the revenue generated or local administration, the percentage of employment in non-agricultural activities, the economic importance etc. have not been considered. Thereafter, the notification was issued by the State Government on 20.11.2015 constituting the Nagar Panchayat and subsequently, the posts were created in the Nagar Panchayat on 6.1.2016. 16. In (1987) 2 SCC Page 510, their Lordships of Hon. Apex Court in the matter of ‘Baldev Singh and others v. State of H.P. & others’ have held that the hearing contemplated is not required to be oral and can be by inviting objections and disposing them of in a fair way. Denial of such opportunity is not in consonance with the scheme of the rule of law governing our society and would render the notification constituting a particular notified area invalid. Further held that location of a few shops may not amount to a bazaar and location of a bazaar may not bring a town into existence. These are factual aspects which require consideration before the State Government could come to the conclusion that the area in question, by the tests indicated in Section 256 of the Act, qualified to be constituted into a notified area. Their Lordships have held as under:- “2. Several affidavits have been filed on either side in support of the respective stands. There cannot be any serious dispute to the proposition that whether a particular area would be declared as notified area or not under the Act is ultimately an administrative decision. Section 256 of the Himachal Act provides: “256. Constitution of notified area.—(1) The State Government may, by notification, declare that with respect to some or all of the matters upon which a municipal fund may be expended under Section 51, improved arrangements are required within a specified area, which nevertheless, it is not expedient to constitute as a municipality. (2) An area in regard to which a notification has been issued under sub-section (1) is hereinafter called a notified area. (2) An area in regard to which a notification has been issued under sub-section (1) is hereinafter called a notified area. (3) No area shall be made a notified area unless it contains a town or bazar and is not a purely agricultural village. (4) The decision of the State Government that a local area is not an agricultural village within the meaning of sub-section (3) shall be final, and a publication in the Official Gazette of a notification declaring an area to be a notified area shall be conclusive proof of such decision.” Though detailed guidelines are not indicated in the section yet from the provisions contained therein it is clear that purely agricultural villages are not to be included in a notified area and there must be a town to form the nucleus of a notified area. It is not disputed that these four villages from out of which portions have been taken out to constitute the notified area were already within Gram Panchayats duly constituted under statute. Once these areas are constituted into a notified area under the Municipal Act, the areas now included in the notified area would necessarily be taken out from the jurisdiction of the Gram Panchayats. The villagers who were elected to the Gram Panchayats and were holding office would, as a consequence of the constitution of the notified area, cease to be in office so far as the Gram Panchayats are concerned. Chapter XII of the Municipal Act dealing with notified areas provides that once a notified area is constituted, taxes would be imposed and it has not been disputed before us that the rates of such taxes would involve higher incidence and the people living within the area would be subjected to higher tax burden. From an agricultural society, the inhabitants of the area will have to switch over into a semi-urban community. There has been a serious dispute as to whether there is really a town or bazar in existence within the area. Undoubtedly, the reports in the record indicate that there are some shops and a good number of passenger buses pass through this area. Shops are found even in agricultural villages. Location of a few shops may not amount to a bazar and location of a bazar may not bring a town into existence. Undoubtedly, the reports in the record indicate that there are some shops and a good number of passenger buses pass through this area. Shops are found even in agricultural villages. Location of a few shops may not amount to a bazar and location of a bazar may not bring a town into existence. These are factual apects which require consideration before the State Government could come to the conclusion that the area in question, by the tests indicated in Section 256 of the Act, qualified to be constituted into a notified area. 4. Appellants’ counsel has raised a more serious issue, namely, denial of an opportunity of being heard before the notified area has been constituted. Since Section 256 of the Act requires certain aspects to be satisfied before a notified area can be constituted, factual determination had to be made as to whether those statutory conditions were satisfied. Ours is a democratic polity. At every level, from the villages up to the national level, democratic institutions have been introduced. The villages are under Gram Panchayats, urban areas under municipalities and corporations, districts are under parishads; for the State there is a legislature and for the entire country, we have the Parliament. People residing within Gram Panchayats have their electoral rights to exercise and in exercise of such rights, they have elected their representatives. Citizens of India have a right to decide what should be the nature of their society in which they live — agrarian, semi-urban or urban. Admittedly, the way of life varies, depending upon where one lives. Inclusion of an area covered by a Gram Panchayat within a notified area would certainly involve civil consequences. In such circumstances it is necessary that people who will 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. 5. Reliance was placed on two decisions of this Court in support of the appellants’ stand that natural justice required an opportunity of being heard to be extended to the people of the area before the administrative decision to constitute the notified area was taken. The first is the case of S.L. Kapoor v. Jagmohan. That was a case where the committee constituted under the Municipal Act was superseded. The first is the case of S.L. Kapoor v. Jagmohan. That was a case where the committee constituted under the Municipal Act was superseded. This Court held that where the administrative action entails civil consequences, observance of natural justice would be warranted and unless the law excludes the application of natural justice it should be taken as implanted into the scheme. The other is the case of State of Orissa v. Sridhar Kumar Mallik where the validity of the action taken under Section 417-A of the Orissa Municipal Act in constituting a notified area was being examined. The court, referring to the statutory scheme, found: (SCC pp. 700-01, para 6) “The extension of the Orissa Municipality Act to an area other than a municipality is a matter of serious moment to the residents of the area. It results in the provision of amenities and conveniences necessary to civil life and their regulation by a local body. But the Act also provides for the imposition of taxes of different kinds on the residents. The tax structure does not embody an integrated unified impost expressed in a single tax measure. Different kinds of taxes are contemplated by the Act. The scheme set forth in Chapter XXX-A of the Act intends that before the Government extends the operation of the Act to an area under a municipality it must afford an opportunity to the local residents to object to the proposed action. The objections are submitted to the District Magistrate, who forwards them along with his views to the State Government. The State Government must take into consideration all the material before it and decide thereafter what should be the precise area to which the Act should be extended, and indeed whether all the provisions of the Act or only certain specified provisions should be so extended. The possibility of some only of the provisions of the Act being applied to the notified area is evident from the terms in which the grant of power has been conferred on the State Government. Sub section (1) of Section 417-A specifically envisages that when issuing the notification contemplated therein the State Government must decide whether administrative provision needs to be made “for all or any of the purposes” of the Act in the area proposed to be notified. Sub section (1) of Section 417-A specifically envisages that when issuing the notification contemplated therein the State Government must decide whether administrative provision needs to be made “for all or any of the purposes” of the Act in the area proposed to be notified. Unless the proposal formulated in the proclamation made under sub-section (1-a) of Section 417-A is precise and clear, and indicates with sufficient accuracy the area intended to be notified, and further indicates whether the administrative provision is proposed for all the purposes of the Act or only some of them, and if only some of them then which of them, it will not be possible for the residents to properly avail of the right conferred on them by the statute to make their objections to the proposal of the State Government. We do not see how it can be otherwise.” It is a fact that the Orissa Act provides in clear terms a right of hearing whereas Section 256 of the Himachal Act makes no such provision, but the settled position in law is that where exercise of a power results in civil consequences to citizens, unless the statute specifically rules out the application of natural justice, the rules of natural justice would apply. We accept the submission on behalf of the appellants that before the notified area was constituted in terms of Section 256 of the Act, the people of the locality should have been afforded an opportunity of being heard and the administrative decision by the State Government should have been taken after considering the views of the residents. Denial of such opportunity is not in consonance with the scheme of the Rule of Law governing our society. We must clarify that the hearing contemplated is not required to be oral and can be by inviting objections and disposing them of in a fair way. 7. The appeal is allowed and the impugned notification of 31-3-1982 constituting the particular notified area is quashed. We make it clear that it is open to the State Government to make a fresh notification after complying with the law and this judgment of ours would not stand in the way of the State Government to do so. Parties are directed to bear their own costs.” 17. In the present case, the objections have not been decided in a just and fair way. Parties are directed to bear their own costs.” 17. In the present case, the objections have not been decided in a just and fair way. These have been rejected in a cursory manner without due application of mind. 18. A strong reliance was placed upon the judgment rendered by the Division Bench of this Court in the matter of ‘Narendra Singh Rana v. State of Uttarakhand & others’ reported in 2016 (2) U.D. 275 decided on 4.8.2016 (WP [PIL] No. 21 of 2016). In that case, the petitioners were seeking personal hearing which was denied to them by the Division Bench by holding that there was no provision of granting oral hearing. 19. Under Section 4 of the Act of 1916, the notification is required to be issued and the objections are to be called and thereafter, the objections ought to be decided on the basis of the factors mentioned in sub-section (1) of Section 3 of the Act and dealing with the objections extensively and not in a haste. There would be violation of principle of natural justice if the objections are called but the same are not decided in accordance with law. 20. Accordingly, the writ petition is allowed. Impugned final notification dated 24.11.2015 constituting Nagar Panchayat, Selaqui is quashed and set aside. However, it shall be open to the State Government to make a fresh notification after complying with the provisions of law. 21. Pending application, if any, stands vacated.