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Gram Sabha, Shahzadpur and ors. Vs. State of Haryana and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 2909 of 1980
Judge
Reported inAIR1982P& H33
ActsHaryana Municipal Act, 1971 - Sections 3(1); ;Bihar and Orissa Municipal Act - Sections 4(1); Punjab Village Common Lands (Regulation) Act, 1961 - Sections 4(2); ;Constitution of India - Article 14
AppellantGram Sabha, Shahzadpur and ors.
RespondentState of Haryana and ors.
Cases ReferredIn Tulsipur Sugar Co. Ltd. v. Notified Area Committee
Excerpt:
.....exercising powers of superintendence under article 227 of the constitution. - (1)(a) when the state government is satisfied that three-fourths of the adult male population of any town are engaged on pursuits other than agriculture and that such town contains not less than five thousand inhabitants, and an average number of not less than one thousand inhabitants to the square mile of the area of such town, the state government may declare its intention to constitute such town, together with or exclusive of any railway station, village, land or building in the vicinity of such town, municipality, and to extend to it all or any of the provisions of this act. (b) when the state government is satisfied that any municipality, or any area in a municipality, does not fulfil the conditions..........area committee, tulsipur town, air 1968 all 285 the notification under section 3 of the u. p. town areas act was under challenge, section 3 of this act reads (at p. 286):--'(1) the state government may by notification in the official gazette-- (a) declare any town, village suburb, bazar or inhabited place to be a town area for the purpose of the act,................... (b) to (d)...................... provided that an agricultural village shall not be declared, or included within the limits of a town area. (2) the decision of the state government, that any inhabited area is not an agricultural village within the meaning of the proviso to sub-section (1) of this section shall be final and conclusive, and the publication in the official gazette of a notification declaring such area to.....
Judgment:
ORDER

1. The State Government in exercise of the powers conferred by sub-section (1) of S. 3 of the Haryana Municipal Act, 1971 (hereinafter the Act) issued notification (Annex. P. 4) dated March 25, 1980, proposing the local areas of villages Shahzadpur and Majra in Naraingarh Tahsil of Ambala District, the boundaries of which were detailed therein, to be 'C' class Municipality of Shahzadpur. The State Government thereafter issued another notification (Annex. P. 8) dated August 5, 1980 under sub-section (6) of S. 3 of the Act declaring the local areas of Shahzadpur and Majra detailed in notification (Annexure P 4 to be 'C' Class Municipality of Shahzadpur. Gram Sabhas of Shahzadpur and Majra and a few other residents of these villages have filed the present writ petition challenging these two notifications on various grounds, inter alia, sub-section (1) of Section 3 of the Act is ultra vires Art. 14 of the Constitution and further they have been issued mala fide to harm Dr. Amar Nath Gupta, Sarpanch (under suspension), Gram Sabha, Shahzadpur petitioner and to benefit Rai Pirthi Singh respondent in the matter of payment of compensation to him of the charand land which is in occupation of Gram Panchayat, Majra. The mala fides are attributed to Shri Lal Singh, Deputy Minster, Labour and Public Health, Haryana, Chandigarh, who has been impleaded as a respondent.

2. The State of Haryana has contested the writ petition. It has been denied that the impugned notifications (Annexures P. 4 and P. 8) have been issued male fide or at the instance of Shri Lal Singh respondent. It has also been averred that sub-section (1) of S. 3 of the Act is intra vires Article 14 of the Constitution and the two impugned notifications (Annexures P. 4 and P. 8) are valid. Shri Lal Singh respondent in his separate return has denied the allegations of mala fides levelled against him.

3. The main attack of the learned counsel for the petitioners is that sub-section (1) of Section 3 of the Act is ultra vires Art. 14 of the Constitution inasmuch as it does not lay down guidelines in the matter of discretion to be exercise by the State Government for issuing the notification thereunder with the result that an arbitrary and unbridled power has been conferred upon it in this regard. The learned Senior Deputy Advocate General appearing on behalf of the State has argued that under sub-section (1) of Section 3 of the Act, the State Government can only propose any local area to be a Municipality by a notification. Under sub-section (5) of S. 3 of the Act the inhabitants have a right to submit objection within six weeks from the date of the notification under sub-section (1). Under sub-section (6) it is incumbent upon the State Government to consider the objections filed and pass order thereon before issuing the notification declaring the proposed local area to be a Municipality. The argument of the learned Sr. Deputy Advocate General proceeds that in view of the detailed procedure prescribed under Section 3 of the Act the power exercisable under sub-section (1) thereof cannot be taken as arbitrary or unbridled or ultra vires Art. 14 of the Constitution. The contention of the learned Senior Deputy Advocate General must prevail.

4. The learned counsel for the petitioners has relied upon Ram Bachan Lal v. State of Bihar, AIR 1967 SC 1404, wherein Section 4(1) of the Bihar and Orissa Municipal Act was examined and was held to be not violative of Art. 14 of the Constitution. Section 4 of the Bihar and Orissa Municipal Act reads:--

'4. Declaration of intention to constitute or alter limits of municipality:

(1)(a) When the State Government is satisfied that three-fourths of the adult male population of any town are engaged on pursuits other than agriculture and that such town contains not less than five thousand inhabitants, and an average number of not less than one thousand inhabitants to the square mile of the area of such town, the State Government may declare its intention to constitute such town, together with or exclusive of any railway station, village, land or building in the vicinity of such town, municipality, and to extend to it all or any of the provisions of this Act.

(b) When the State Government is satisfied that any municipality, or any area in a municipality, does not fulfil the conditions specified in Clause (a), or when the Commissioners at a meeting have made a recommendation in this behalf, the State Government may declare its intention to withdraw such municipality from the operation of this Act, or to exclude such area from such municipality.'

5. Their Lordships of the Supreme Court held that S.4(1) of the Bihar and Orissa Municipal Act contemplates a town containing not less than five thousand inhabitants and a town of a particular density of population and further that three-fourths of the adult male population should be engaged in pursuits other than agriculture. These requirements show that the area has reached such a stage of development that the Government should constitute a municipality in the area. It was further held that section 388 of the said Act would come into picture only if the requirements of Section 4 are not satisfied but yet the Government considers it necessary to make administrative provisions for all or any of the purposes of the Act. This gives sufficient guidance to the Government and no arbitrary power has been conferred on the Government. The learned counsel for the petitioners has argued that the provisions contained in sub-section (1) of S. 3 of the Act are not at par with S. 4 of the Bihar and Orissa Municipal Act. No guidelines as contained in s. 4 of the Bihar and Orissa Municipal Act are provided in S. 3 of the Act. Sub-section (1) of S. 3 of the Act is, therefore, violative of Art. 14 of the Constitution. This contention is without merit. In Ram Bachan Lal's case (AIR 1967 SC 1404 (supra), their Lordships were examining Section 4 of the Bihar and Orissa Municipal Act. It was held to be not violative or Art. 14 of the Constitution. Section 3 of the Haryana Municipal Act is not similar to Section of the Bihar and Orissa Municipal Act. it cannot be inferred from the ratio of Ram Bachan Lal's case (supra) that Section 3(1) of the Haryana Municipal Act must conform to Section 4 of the Bihar and Orissa Municipal Act to be contravening Art. 14 of the Constitution.

6. The learned counsel for the petitioners has argued that under S. 258 of the Haryana Municipal Act (since deleted) which deals with the Constitution of a notified area, it was specifically provided that no area shall be made a notified area unless it contains a town or a bazar and is not a purely agricultural village. No such guideline is provided in a S. 3(1) of the Haryana Municipal Act with the result that it is hit by Art. 14 of the Constitution. This contention is also without force. sub-section (1) of Section 3 of the Act cannot be held to be violative of Art. 14 of the Constitution because under S. 258 (since deleted) it was provided that no area shall be made a notified area unless it contains a town or a bazar and was not a purely agricultural village.

7. The learned counsel for the petitioners has relied upon sub-section (2) of Section 3 of the Punjab Municipal Corporation Act, 1976, whereunder the Government by notification may constitute a municipality to be a city provided its population exceeds three lacs and its total income exceeds two crore rupees per annum. The argument is that no such guideline is provided in Section 3 of the Act and as such it is ultra vires Art. 14 of the Constitution. This contention has also no force. Section 3(1) of the Act is to be examined on its own merits and not by comparison with S. 3(2) of the Punjab Municipal Corporation Act, 1976.

8. In State of Punjab v. Dewan Chand, AIR 1979 Punj & Har 46, a challenge had been laid to the vires of S. 10 of the Punjab Municipal Corporation Act. In this connection Section 4 of the Punjab Municipal Corporation Act which is similar to Section 3 of the Act was examined. It was held (at p. 47):

'From a bare perusal of this section, it is evident that no guideline is provided as to in which cases the area of any municipality could be withdrawn from the operation with the Act. Section 10 forms part of Chap. II which relates to be constitution of Municipalities. Section 4 provides a detailed procedure for constituting a municipality. Under this Section the State Government is required to issue a notification when it proposes to constitute a Municipal committee in respect of any local area. Such a notification is required to define the limits of the local area to which it relates. A detailed procedure is prescribed for the publication of the notification. The inhabitants of the area, who may object to the notification, are entitled to file objections in writing. The objections have to be disposed of by the State government by passing orders. It would thus be seen that a municipality can be constituted only after following a detailed procedure and nothing has been left to the whim of the State Government.'

In this judgment Section 4 of the Punjab Municipal Corporation Act. 1976 was found not ultra vires the Constitution inasmuch as a blanket power has not been given to the State Government and the inhabitants have been given a right to raise objections which the State Government is bound to decide by passing orders. Section 3 of the Act being similar to S. 4 of the Punjab Municipal Corporation Act it or any sub-section thereof cannot be treated ultra vires the Constitution.

9. In Ayodhya Prasad, Vajpai v. State of U. P., AIR 1968 SC 1344, the notification issued by the Government of Uttar Pradesh under the Uttar Pradesh Kshetra Samitis and Zila Parishads Adhiniyam (33 of 1961) Ss. 3 and 8 were challenged. By these notifications the Government of Uttar Pradesh redivided the rural area in the district with the result that a few khands were abolished and new created in their place. The argument advanced was that the power of the Government to do so amounted to excessive delegation of legislative functions to the State Government and being not supported by adequate safeguards or guides were liable to be struck down. This argument was not upheld. It was held (at p. 1347) :

'The Act speaks for itself and is self-contained. Its policy is stated in clear terms and the power to create Khands must be read with the power to abolish Khands and create new Khands in their place. The details of how big a Khand should be, what territory it should involve and so on and so forth, cannot be the subject of detailed legislation. The Act gives ample indication of what the purpose of making a Khand is and the duties which the Kshettra Samities must perform. On this subject the legislative will have been sufficiently expressed and must, therefore, guide the State Government in making its notifications.'

The ratio of Ayodhya Prasad Vajpai's case (supra) was followed in State of Haryana v. Gram Panchayat, Dera Fateh Singh, Teh. Gulha, (1978) 80 Pun LR 696 and it was held that the State Government is competent under sub-section (2) of S. 4 of the Punjab Village Common Lands (Regulation) Act, 1961 to include or exclude any area of the Sabha.

10. In Tulsipur Sugar Company Ltd. v. Notified Area Committee, Tulsipur town, AIR 1968 All 285 the notification under Section 3 of the U. P. Town Areas Act was under challenge, Section 3 of this Act reads (at p. 286):--

'(1) The State Government may by notification in the Official Gazette--

(a) declare any town, village suburb, bazar or inhabited place to be a town area for the purpose of the Act,...................

(b) to (d)......................

Provided that an agricultural village shall not be declared, or included within the limits of a town area.

(2) The decision of the State Government, that any inhabited area is not an agricultural village within the meaning of the proviso to sub-section (1) of this section shall be final and conclusive, and the publication in the Official Gazette of a notification declaring such area to be a town area or within the limits of a town area shall be conclusive proof of such decision.'

Holding the notification to be valid, it was held that when an area is declared as a Town Area no specific rights of residents are adversely affected. It may be that in due course of time taxes would be imposed, and residents of the locality may have to pay such taxes. But it cannot be said that a mere declaration of a town area with respect to a specified area directly affects the rights of the residents of the locality. Such a declaration is of administrative nature. Since the decision is of administrative nature, it is not necessary for the State Government to give an opportunity to residents of the locality to oppose such a proposal.

11. Tulsipur Sugar Company having lost in the High Court preferred an appeal in the Supreme Court which was also dismissed. Their Lordships of the Supreme Court in their judgment reported in Tulsipur Sugar Co. Ltd. v. Notified Area Committee, Tulsipur, AIR 1980 SC 882 held (at p. 887):

'We are concerned in the present case with the power of the State Government to make a declaration constituting a geographical area into a town area under Section 3 of the Act which does not require the State Government to take such declaration after giving notice of its intention so to do to the members of the public and inviting their representations regarding such action. The power of the State Government to make a declaration under Section 3 of the Act is legislative in character because the application of the rest of the provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration. Section 3 of the Act is in the nature of a conditional legislation.'

12. Section 3 of the Act provides a detailed procedure for constituting a municipality. The State Government is required to issue a notification when it proposes to constitute a Municipal Committee in respect of any local area. Such notification is required to define the limits of the local area to which it relates. A detailed procedure is prescribed for the publication of the notification. The inhabitants of the local area are entitled to file the objections in writing. The objections have to be disposed of by the State Government by passing orders. It is, thus, clear that municipality can be constituted after following the detailed procedure and it cannot be said that an arbitrary power in this regard has been conferred on the State Government. This apart the Act gives ample indication about the purpose of setting up of a municipality which is a sufficient guide for the State Government for making a notification under S. 3 of the Act.

13. I, therefore, hold that the power conferred on the State Government to issue notifications under sub-section (1) of S. 3 of the Act is neither arbitrary not unguided and as such is not violative of Article 14 of the Constitution.

14. The learned counsel for the petitioners has further argued that the right given to the inhabitants to file objections under sub-section 3(5) of the Act is illusory, because no right has been given to them to substantiate the same. I am not impressed by this contention. In Tulsipur Sugar Co. Ltd. v. Notified Area Committee, Tulsipur, AIR 1968 All 285, Section 3 of the U. P. Town Areas Act did not provide that the inhabitants could file objections at all against the notification. It was held that the mere declaration of a town area with respect to a specified area did not directly affect the rights of the residents of the locality. Their Lordships of the Supreme Court in Tulsipur Sugar Co.'s case (supra) held further that a declaration under Section 3 of the U. P. Town Areas Act is legislative in character because the application of the rest of the provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration. The observations of their Lordships completely demolish the contention of the learned counsel for the petitioners that the notifications under S. 3 of the Act are bad because the objectors who file objections under sub-section (5) thereof have not been given a right to substantiate the same.

15. Another argument of the learned counsel for the petitioners is that the impugned notifications are ultra vires Article 40 of the Constitution, inasmuch as the areas detailed in notification P. 4 under Section 3(1) of the Act had already been declared Sabha Areas of Shahzadpur and Majra. The argument in other words is that no municipality can be constituted over the area which is part of Sabha Area under Section 4 of the Gram Panchayat Act. The contention is devoid of any force Article 40 is contained in Part IV of the Constitution which deals with the Directive Principles of State Policy and reads:

Organisation of Village Panchayats:--

The State shall take steps to organise Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of Self-Government.

This Article in no way negatives the right of the State Government to set up a municipality over the area which is covered by the Village Panchayat. The setting up of a Panchayat is a step towards Self-Government and a municipality is a further improvement in that direction. Article 40 of the Constitution therefore, cannot be taken as a bar for setting up municipality under Section 3 of the Act even with respect of an area which is covered by a Panchayat or Gram Sabha.

16. It has been argued by the learned counsel for the petitioners that the areas of Gram Sabhas of Shahzadpur and Majra were admittedly governed by the Gram Panchayat. After the impugned notifications P. 4 and P. 8, they will be governed by the Act. There is no provision in the Act that it will apply notwithstanding that the area was governed by the Gram Panchayat Act. The impugned notifications are, therefore bad on that account. This contention is outright fallacious. There is no bar under the Haryana Municipal Act for setting up a municipality with respect to an area which had earlier been declared a Sabha Area under the Gram Panchayat Act. After a notification under S. 3(6) of the Act is issued with respect to an area which had earlier been declared a Sabha Area the Gram Panchayat Act would cease to apply and the Act would come into force in relation thereto.

17. The last contention of the learned counsel for the petitioners is that the notifications P. 4 and P. 8 are liable to be struck down because they have been issued mala fide to harm Dr. Amar Nath Gupta petitioner and to benefit Rai Pirthi Singh respondent. This contention has also no force. Dr. Amar Nath Gupta, Petitioner was Sarpanch of Gram Sabha, Shahzadpur. He was placed under suspension. According to the petitioners the municipality in Shahzadpur has been set up to dissolve the Gram Sabha and to render the claim of Dr. Amar Nath Gupta for reinstatement as Sarpanch infructuous. The mala fides are attributed to Shri Lal Singh, Deputy Minister, Labour and Public Health, who in his return has categorically denied the allegations levelled against him. In view of the denial by Shri Lal Singh, the allegations of mala fides against him cannot be upheld. It is, however, significant that the impugned notifications P. 4 and P. 8 have not be issued by or under the authority of Shri Lal Singh who holds the portfolios of Labour and Public Health. The notifications have been issued by the Local Government Department. It is admitted that Shri Lal Singh has never been incharge of the Local Government Department. The case of the petitioners against Rao Pirthi Singh respondent is that his ancestors owned about 400 Bighas of land in Majra which is Chirand. This land or a part thereof was acquired. The Additional District Judge, Ambala directed that the compensation of the acquired land be paid to Rai Pirthi Singh who is its owner though its possession was with the Village Panchayat. The Village Panchayat has filed an appeal against the order of the Additional District Judge which is pending in this Court. The effect of the dissolution of Gram Sabha, Majra as a result of impugned notifications P. 4 and P. 8 would be that Gram Panchayat Majra would cease to have locus standi to maintain the appeal against the orders of the Additional District Judge, Ambala. Shri Lal Singh, Deputy Minister, Labour and Public Health has been instrumental in getting the impugned notifications issued for the benefit of Rai Pirthi Singh. Shri Lal Singh has denied allegations made against him on this point as well. This apart the impugned notifications have not been issued under his authority. The petitioners, therefore, cannot justify their claim that these notifications be quashed on the ground of mala fides.

18. In view of the discussion above there is no merit in this writ petition and the same is dismissed with no order as to costs.

19. Petition dismissed.


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