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2020 DIGILAW 1154 (MP)

Ratan Singh v. State of M. P.

2020-10-21

S.C.SHARMA, SHAILENDRA SHUKLA

body2020
ORDER Sharma, J. -- 1. Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of Writ Petition No. 483 / 2019 are narrated hereunder. 2. The petitioners before this Court are Sarpanchas of various villages in Tehsil Kukshi, Distt. Dhar and they have filed this present writ petition being aggrieved by the Notification dated 29.9.2018 which is in respect of formation of Nagar Panchayat, Baag. The contention of the petitioners is that they came to know about the news published in Newspaper that Baag has been declared as Nagar Panchayat in the District Dhar, Tahsil Kukshi and they immediately applied under the Right to Information Act in respect of the proceedings which have taken place in formation of village Baag as Nagar Panchayat. The information was furnished to the petitioner No.1 on 29.9.2018 and the contention of the petitioner is that the procedure prescribed for declaring Baag as Nagar Parishad has not been followed and only on the basis of announcement made by the Chief Minister, Nagar Panchayat has been constituted. The petitioner has raised various grounds before this Court and their contention is that the impugned Notification is unreasonable, unfair, arbitrary and violative of the rights guaranteed to the petitioner under Articles 14 and 16 of the Constitution of India and the same deserves to be quashed, as the prescribed procedure, as provided u/Ss. 5 and 6 of the Municipalities Act, 1961 has not been followed. The petitioners have prayed for the following reliefs : (i) the present petition may kindly be allowed; (ii) the order dated 29.9.2018 (Annexure P/4) may kindly be set aside; (iii) any other appropriate writ, order or direction which this Hon'ble Court deem just and proper in the facts and circumstances of the present case, may kindly be passed in favour of the petitioner. 3. 3. A reply has been filed in the matter and the respondents have stated that by Notification dated 29.9.2018, the State Government has declared its intention to form a Nagar Panchayat and the Notification is nothing but a Notification issued under the provision of section 5 of the Municipalities Act, 1961 and the entire area of the aforesaid Gram Panchayats has been specified as transitional area of Nagar Parishad Baag and for that the transitional area of Nagar Parishad is yet to be constituted under the provisions of the M. P. Municipalities Act. The respondents have also stated that the issue of being a separate Notification for declaration of an area as an transitional area, as per proviso of section 5 is no more res-integra and this Court by order dated 16.3.2012 passed in W.P.No. 910/2012 (Gram Panchayat Padlyakhurd v. State of Madhya Pradesh and others) has held that in respect of similar Notification dated 14.11.2011, by which the Gram Panchayat Karai and Padlyakhurd were notified as Nagar Parishad, Karai and Padlyakhurd, there is no such requirement of issuing a separate Notification declaring an area as transitional area and the Notification specifying intention to constitute Nagar Parishad, as per section 5(1) will be sufficient for the purpose. Respondents have also relied upon Article 243(Q) of the Constitution of India and it has been stated that vide Notification dated 29.9.2018 the area coming under the Gram Panchayats Baag, Jamanyapura, Mahakalpura, Agar, Nimakheda and Banada are the transitional area. It has been further stated that now proceedings will be initiated as per section 29 of the Municipalities Act and also as per the rules framed thereunder for delimitation of wards and formation of constitution of fresh Nagar Panchayat. Respondents have also stated that new Nagar Panchayat could not have been constituted by the State because the tenure of the existing Gram Panchayat was still subsisting. The respondents have stated that they will be proceeding strictly in accordance with law in the matter. 4. It has also been stated that the Notification dated 29.9.2018 has been issued and published in Dainik Bhaskar. It has been pasted on the notice board of the Collector Office and, therefore, there is sufficient compliance of sections 5 and 6 of the Municipalities Act. 4. It has also been stated that the Notification dated 29.9.2018 has been issued and published in Dainik Bhaskar. It has been pasted on the notice board of the Collector Office and, therefore, there is sufficient compliance of sections 5 and 6 of the Municipalities Act. The respondents have placed reliance upon the judgment delivered in the case of Pranay Gupta v. State of MP and others reported in 2004 (4) MPLJ 574 . The respondents have prayed for dismissal of the Writ Petition. 5. Heard learned counsel for the parties at length and perused the record. 6. In the present case, the petitioners are aggrieved by the Notification dated 29.9.2018 which has been issued under the provisions of section 5(1)(b) of the Municipalities Act, 1961 (Annexure P/4). 7. In the present case, the following questions arises for adjudication of the lis involved : (a) Whether before constitution / formation of Nagar Parishad any notification to declare such area as “Transitional Area” is necessary after providing opportunity of filing objections and their consideration as required by Article 243Q of the Constitution of India, section 126 of the Panchayat Raj Adhiniyam and section 5(2) of the Municipalities Act ? (b) Whether any such notification as required by Article 243Q of the Constitution of India, section 126 of the Panchayat Raj Adhiniyam and section 5(2) of the Municipalities Act was ever issued before issuance of notifications for constitution / formation of Municipality u/S. 5(1)(b) was ever issued ? 8. In the present case, undisputedly the Notification as required keeping in view Article 243Q of the Constitution of India; section 5(2) of the Municipalities Act and section 126 of the Panchayat Raj Adhiniyam has not been issued and, therefore, the provisions of section 6 has not been followed. The respondents in the return have stated that vide impugned Notification dated 29.9.2018 the entire area of the aforesaid Gram Panchayat has been declared as transitional area for Nagar Parishad Baag and for that transitional area, the Nagar Parishad is yet to be constituted in accordance with the provisions of the Municipalities Act. The respondents in the return have stated that vide impugned Notification dated 29.9.2018 the entire area of the aforesaid Gram Panchayat has been declared as transitional area for Nagar Parishad Baag and for that transitional area, the Nagar Parishad is yet to be constituted in accordance with the provisions of the Municipalities Act. Reliance placed upon the judgment delivered in Writ Petition No. 910/2012 dated 16.3.2012, is misplaced as in the aforesaid case there was a Notification dated 14.11.2011 specifying an area as transitional area, whereas, in the present case, the respondents have not at all complied with the provisions of section 5(1) of the Municipalities Act, 1961 and provisions of section 125 and 126 of the Panchayat Act and, therefore, the judgment relied upon by the learned counsel for the respondent does not help them in any manner. 9. The another important aspect of the case is that the respondents in their reply, in paragraphs No.7 and 8 have stated that the Notification (Annexure R/2) dated 27.7.2020 has been published after complying with the provisions, as contained u/s. 6 of the Municipalities Act, 1961. The aforesaid Notification does not reflect that at any point of time by an earlier Notification transitional area was declared and now the area is declared as Nagar Parishad. Annexure R/2 which is a Notification dated 27.7.2020 is again a Notification issued u/s. 5(1)(b) without complying the statutory provisions as contained u/s. 5 of the Municipalities Act and Article 243(Q) of the Constitution of India as well as section 126 of the Panchayat Raj Adhiniyam. Not only this, in the Notification dated 27.7.2020 there is a mention of Notification dated 2.7.2020 which is again not a Notification for the purpose of declaring an area as an transitional area. 10. The apex Court in the case of Champa Lal v. State of Rajasthan and others reported in ( AIR 2018 SC 2352 ) has dealt with a similar issue. Paragraphs 7 to 14 of the aforesaid judgment reads as under : 7. Article 243Q contemplates the constitution of three different categories of bodies known as (i) Nagar Panchayat for a transitional area, (ii) Municipal Council for a smaller urban areas and (iii) Municipal Corporation for a larger urban area. 8. Paragraphs 7 to 14 of the aforesaid judgment reads as under : 7. Article 243Q contemplates the constitution of three different categories of bodies known as (i) Nagar Panchayat for a transitional area, (ii) Municipal Council for a smaller urban areas and (iii) Municipal Corporation for a larger urban area. 8. It is declared Under Article 243Q(2) that the expressions "a transitional area", "a smaller urban area" and "a larger urban area" (hereinafter collectively referred to as "AREAS") would mean such areas as may be specified by the Governor by a public notification for the purpose of Part IX A of the Constitution of India. Article 243Q(2) further obligates the Governor to have due regard to the various factors mentioned therein before specifying the AREAS i.e. population of the area, the density of the population, the revenue generated in the area for local administration, percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit. 9. It, therefore, appears from the scheme of Article 243Q(2) that the Governor is not free to notify 'AREAS' in his absolute discretion but is required to fix the parameters necessary to determine whether a particular AREA is a transitional area or a smaller urban area or a larger urban area with due regard to the factors mentioned above. It is implicit that such parameters must be uniform for the entire State. It is only after the determination of the parameters, various municipal bodies contemplated under Article 243Q(1) could be constituted. 10. In response to a specific query whether any notification contemplated under Article 243(Q)(2) had been issued by the State of Rajasthan, Mr. Guru Krishnakumar learned senior counsel appearing for the State of Rajasthan, produced two notifications dated 4.7.1995 and 30.4.2012. On a plain reading of both the notifications, it appears that these notifications had been issued in exercise of the statutory powers conferred on the State Government by two different enactments known as "The Rajasthan Municipality Act, 1959 (since repealed) and the Rajasthan Municipalities Act, 2009. Apart from the declaration regarding the source of power for the issuance of these notifications to be authority conferred by the various provisions of the above mentioned two enactments, it appears from the tenor and scheme of the notifications that these notifications purport to classify municipalities only on the basis of population. Apart from the declaration regarding the source of power for the issuance of these notifications to be authority conferred by the various provisions of the above mentioned two enactments, it appears from the tenor and scheme of the notifications that these notifications purport to classify municipalities only on the basis of population. The various other parameters to which regard is required to be had under Article 243Q(2) were not taken into consideration for the purpose of classification made under the above mentioned two notifications. Therefore, in our opinion, these two notifications cannot be treated as notifications contemplated under Article 243(Q)(2). 11. In the absence of any notification which meets the requirements of Article 243Q(2), the entire exercise undertaken by the State of Rajasthan in upgrading the Napasar village Gram Panchayat to be a Nagarpalika - [that is equivalent to Nagar Panchayat as mentioned in Article 243Q(1)(a)] is unconstitutional as it is inconsistent with the requirements of the Constitution under Article 243Q of the Constitution of India. Therefore, the initial notification dated 6.10.2008 itself is unsustainable. Unfortunately, this aspect has not been noticed by the High Court obviously because it was not brought to the notice of the High Court. The fact that a litigant before the Court does not point out the relevant principles and provisions of law does not prevent the Court from examining the issues involved in the lis, more particularly, when the process which is the subject matter of litigation before the Court is inconsistent with the mandate of the Constitution. It is a settled principle of law that Courts are bound to take note of the constitution and the laws.4 12. We, therefore, have no choice but to hold that the initial notification dated 6.10.2008 is unconstitutional. Therefore, the legality of various actions which followed that notification and the judgments of the High Court which examined the legality of those actions, in our view, need not be examined. All such subsequent action of the State which led to litigation suffer from a fundamental constitutional flaw. The impugned judgments of the High Court rendered without examining the true scope and scheme of Part IXA of the Constitution and more particularly Article 243Q(2) are per incuriam. 13. Mr. All such subsequent action of the State which led to litigation suffer from a fundamental constitutional flaw. The impugned judgments of the High Court rendered without examining the true scope and scheme of Part IXA of the Constitution and more particularly Article 243Q(2) are per incuriam. 13. Mr. A. Subba Rao, learned Counsel appearing for the non-State Respondents in SLP (C) No. 11091/2017 submitted that in view of the findings recorded by the High Court that in the interregnum, lot of development (such as the establishment of industries, educational institutions and hospitals etc.) took place in the geographical area in question, and therefore, this Court may not interfere with the notification upgrading the area in question to a Nagarpalika as such interference would have the effect of reducing the Nagarpalika into a Gram Panchayat once again. Confronted with the question as to what would be the prejudice the nonState Respondents would suffer by such consequence, Mr. Rao submitted that there is a possibility of the industries being shifted away from the area in question. It is only an apprehension. We find no basis in the pleading for such apprehensions nor do we see any reason which might lead to such a possibility. Therefore, the submission is rejected. 14. The appeals are disposed of accordingly. 11. In the light of the aforesaid judgment, as initial notification itself was unsustainable, the subsequent Notifications are also bad in law and the respondents are under an obligation to comply with the statutory provisions governing the field which have been quoted above. 12. In a similar case, Sitabai v. State of Madhya Pradesh (W.P.No. 7612/2016), the respondents have not complied with the statutory provisions, as contained u/s. 6 of the Municipalities Act, 1961 and this Court has set aside the Notification therein dated 26.9.2016. 13. This Court is of the considered opinion that as the respondents have not complied with the statutory provisions of law, this Court is left with no other choice except to quash the impugned Notification dated 29.9.2018 and the subsequent Notification issued by the respondents. However, the respondent State shall be at liberty to follow the due process of law afresh in the matter. 14. With the aforesaid, the present petitions stand disposed of. A copy of this order be placed in the record of connected Writ Petition ie., 10833/2020.