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2018 DIGILAW 746 (JK)

Pawan Kumar v. State

2018-09-28

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the medium of instant writ petition, petitioner seeks the following relief(s):- “(i) Quash the notification dated 21st January, 2017 (Annexure-C) whereby the wards No. 4, 5 and 6 of Panchayat Circle, Mandi Kehli have been included within Municipal Committee, Samba without complying with Section 5 of Municipal Act, 2000. (ii) Quash the notification dated 24th August, 2018 (Annexure-F), which has been issued without considering the objection of the petitioner. (iii) Direct the respondents to exclude the ward Nos. 4, 5 and 6 of Panchayat Circle, Mandi Kehli from Municipal Committee, Samba by adopting due procedure of law.” 2. The precisely stated facts in the case are that the petitioner is that the petitioner is a social worker and an Ex-Panch of Ward No. 5 of Panchayat Circle Mandi Kehli, Block Samba, Tehsil and District Samba. The said panchayat has 10 Wards, which include Ward No. 4 also to which petitioner belongs. Section 5 of the Municipal Act, 2000 (hereinafter referred to as the Act) provides for notification of intention of Government to include a local area in a municipal area. The provisions of Section 5 of the aforesaid Act are reproduced here under:- Section 5:- “Notification of intention to include a local area in a Municipal Area. (1) The Government may, by notification, in a such other manner as it may determine declare its intention to include within a municipal area any local area in the vicinity of the same and specified in the notification. (2) Any inhabitants of a municipal area of local area in respect of which a notification has been published under Sub-Section (1) may, if the objects to the alteration proposed, submit his objection in writing through the Deputy Commissioner to the Government within six weeks from the publication of the notification; and the Government shall take such objection into consideration. (3) When six weeks from the publication of the notification have expired, and the Government has considered the objections, if any, which have been submitted under sub-Section (2) the Government may, by notification, include the local area in the Municipal area. (3) When six weeks from the publication of the notification have expired, and the Government has considered the objections, if any, which have been submitted under sub-Section (2) the Government may, by notification, include the local area in the Municipal area. (4) When any local area has been included in a municipal area under Sub-Section (3) of this Act, and, except as the Government may, by notifications, direct otherwise, all notifications, rules, bye-laws, orders, directions and powers issued, made or conferred under this Act and in force throughout whole of the municipal area at the time shall apply to such area.” Thus, Section 5 of the aforesaid Act made it obligatory for the Government to declare by a notification, its intention to include within a Municipal area any local area and grant six weeks’ time from the publication of that notification to the inhabitants to file objection in this regard and only after the expiry of the above said six weeks and after considering the objections filed by the inhabitants, if any, may include that area in Municipal area. 3. Learned counsel for the petitioner submits that vide letter No. PS/FC/H&UDD/71/2018 dated 07th August, 2018, the Housing and Urban Development Department granted approval for the creation of 17 new wards by including the area of Ward Nos. 4, 5 and 6 of Panchayat Circle Area of Kandi Kehli also in Municipal area, as the population of Municipal Committee, Samba had crossed 20,000. Accordingly, respondent No. 7 vide Office Letter No. ENT/DCS/2018-19/539 dated 09th August, 2018 was directed by the department to carry out fresh delimitation and redistribution of area and voters in 17 wards after ensuring that allocation of voters in each ward has to be nearly equally number as far as possible and to submit proposal thereupon. Accordingly, respondent No. 7 submitted the proposal and the respondent No. 5 on the basis of the above said proposal and in terms of powers vested in her u/s 10 (2) of the aforesaid Act delimit the Municipal Area, Samba into 17 Wards vide Notification No. ENT/DCS/2018-19/571-574 (Annexure-B) dated 13th August, 2018 and informed the general public to file objections to the aforementioned proposal within five days, i.e., by or before 18th August, 2018 with the respondent No. 7. It is only after the issuance of Notification dated 13th August, 2018, the inhabitants of Ward Nos. It is only after the issuance of Notification dated 13th August, 2018, the inhabitants of Ward Nos. 4, 5 and 6 of Panchayat Circle Area of Mandi Kehli came to know about the inclusion of Ward Nos. 4, 5 and 6 within the local area of Municipal Area, Samba. After coming to know about the inclusion of their wards without any prior notification, the inhabitants of the respective wards approached respondent No. 7 and filed their objections, thereby submitting that no notification with regard to the intention of the Government to include the area of ward Nos. 4, 5 and 6 within Municipal Area Limit has ever been issued by the official respondents and they were not provided with any opportunity to file objections in this regard and requested him to consider their objections first and then to proceed ahead only after considering the same, as the entire process of inclusion of their wards within the Municipal Limit is against the procedures/rules laid down for this purpose, but the respondent No. 7 did not pay any heed to their objections and intimated them that a Notification dated 21st January, 2017 has already been issued for the purpose of inclusion of Ward Nos. 4, 5 and 6 within Municipal Committee, Samba and made over a copy of Notification dated 21st January, 2017 to them. As per notification dated 21st January, 2017, the Khasra Numbers of Ward Nos. 4, 5 and 6 of Panchayat Circle, Mandi Kehli mentioned at Serial Nos. 4 and 5 of the above said notification have been included within Municipal Committee, Samba. 4. Learned counsel also submits that if is assumed for the sake of arguments that any such notification has been issued, the same has never been published in a local newspaper, which is circulated in the area of the petitioner. Moreover, there were other procedures also like affixation of notice at any conspicuous place of the locality; drum beating; intimation to the members of the panchayat committee so that the inhabitants would have got an ample opportunity to file objections, if any and resist the same, but the officials respondents failed to do the same in order to succeed in their ulterior motive to include the ward Nos. 4, 5 and 6 at any cost. 4, 5 and 6 at any cost. Thereafter, the respondent No. 5, i.e., District Election officer, Samba vide Notification No. ENT/DCS/2018-19/610-613 dated 20th August, 2018 issued the final draft of delimitation proposal based on the recommendation of respondent No. 7 and informed the general public to file objections to the aforementioned proposal with full justification within five days, i.e., by or before 24th August, 2018 with the respondent No. 7. 5. Learned counsel for the petitioner further submits that the general public of Ward Nos. 4, 5 and 6 of Panchayat Circle, Mandi Kehli, headed by the petitioner submitted their objections with the respondent No. 7 well within time, i.e., on 24th August, 2018-the last date for filing objections, as directed vide Notification dated 20th August, 2018. It has been submitted therein in the objections that the competent authority has included panchayat ward Nos. 4, 5 and 6 of Panchayat Circle, Mandi Kehli in Municipal Committee Limit without following laid down procedures and set norms. It has been further submitted in the objections that all the three wards are inter-connected with one other in all developmental and other activities. Moreover, there is majority of Scheduled Castes residing in these wards and the inhabitants of these wards are availing the benefits of special schemes and programmes like IAY, MGNREGA and other beneficial schemes sponsored by Rural Development Department for their upliftment, which are only sponsored, monitored and provided by the Rural Development Department only. Moreover, Water Charges, Property Tax, House Tax, Legal Charges and Court fees are also higher in the urban areas, which are unbearable to them because majority of inhabitants of the area are living below poverty line. Above all, under any circumstances, these wards are not approachable and manageable under urban/municipal committee area and requested in view of the submissions made in the objections to delete Ward Nos. 4, 5 and 6, which are part and parcel of Panchayat Circle, Mandi Kehli from the voter enrollment of Municipal Limit and keep their status intact with Rural Development Department instead of Housing and Urban Development Department. The respondent No. 5 on 24th August, 2018 itself issued Notification No. DCS/PS/2018-19/966-69 dated 24th August, 2018, thereby notifying the final delimitation of wards on the basis of recommendation made by respondent No. 7 vide Letter dated 24th August, 2018. The respondent No. 5 on 24th August, 2018 itself issued Notification No. DCS/PS/2018-19/966-69 dated 24th August, 2018, thereby notifying the final delimitation of wards on the basis of recommendation made by respondent No. 7 vide Letter dated 24th August, 2018. In this regard, it is submitted that as per Notification dated 20th August, 2018, the last date for filing objections was 24th August, 2018 and it was specifically mentioned in the said notification that no objections shall be entertained, if filed after 24th August, 2018, which clearly reveals that the official respondents were legally bound to consider the objections filed by the petitioner on 24th August, 2018. It is further submitted that the petitioner filed the objections on 24th August, 2018 and the official respondents without considering the objections filed by the petitioner straight away issued the Notification dated 24th August, 2018. In view of the aforesaid factual backdrop, the petitioner has approached this Court by way of instant writ petition. 6. During the course of arguments, learned counsel for the petitioner submitted that the petitioner has already moved objections/representation (Annexure-E) dated 24th August, 2018 before the respondent No. 7, i.e., Executive Officer, Municipal Committee, Samba, but the same have not been considered by the authority concerned till date. He further submits that the petitioner would feel satisfied, if the instant writ petition is disposed of with a direction to the respondents to consider the objections/representations submitted by the petitioner. 7. On the contrary, Mr. A.M. Malik, learned Dy. AG, appearing on behalf of the respondents submits that he has no objections in this regard. 8. In view of the aforesaid submissions made by the learned counsel for the parties and in the facts of the case, I deem it appropriate to dispose of the instant writ petition with a direction to the respondent No. 7, i.e., Executive Officer, Municipal Committee, Samba to consider the objections/representation filed by the petitioner. The same shall be done expeditiously, preferably within a period of two weeks from the date of receipt of a certified copy of this order. 9. With the above observations, the writ petition is disposed of along with connected IA(s).