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Kulraj Kataria v. State Of Haryana And Others
Structured Summary of the Court's Opinion (CWP No.10712 & 10720 of 2008)
Factual and Procedural Background
This order disposes of CWP No.10712 and 10720 of 2008 challenging the notification dated 2.6.2008 (Annexure P/1) by which the Government of Haryana declared the Municipal Council, Gurgaon a Municipal Corporation (Municipal Corporation, Gurgaon).
The petitions were filed by persons who had been members (one petitioner was a nominated member from 12.9.2005) of the Municipal Council, Gurgaon whose term was stated to run until 2010. The petitioners challenged the notification on the grounds that (a) objections were not invited and inhabitants were not given an opportunity of hearing before the notification; and (b) the pre-condition relating to population (that the population be three lakhs or more) under the proviso to sub-section (2) of Section 3 of the Haryana Municipal Corporation Act, 1994 (the 1994 Act) was not satisfied because, they said, the population of the erstwhile Municipal Council, Gurgaon was only 2,01,026 as per Annexure P/4.
Respondents (State of Haryana and the newly formed Municipal Corporation, Gurgaon) filed pleadings defending the notification, asserting the population of the notified area was certified at 3,80,003 as per the 2001 census because the notification included the municipal limits plus a number of villages (a schedule listing 54 villages was placed on record). The State relied on powers under sub-section (2) of Section 3 of the 1994 Act. Both petitions, involving common questions of fact and law, were heard together and disposed of by this common order.
Legal Issues Presented
- Whether the notification dated 2.6.2008 declaring Municipal Council, Gurgaon to be Municipal Corporation, Gurgaon was valid when issued without inviting objections or giving an opportunity of hearing to the inhabitants of the erstwhile Municipal Council, Gurgaon.
- Whether the proviso to sub-section (2) of Section 3 of the 1994 Act (requiring the population of the area to be three lakhs or more) was complied with in issuing the notification.
- Whether the petitioners' tenure as members of the Municipal Council (allegedly until April 2010) was curtailed in violation of the proviso to Article 243U of the Constitution and the first proviso to sub-section (1) of Section 12 of the Haryana Municipal Act, 1973, by the issuance of the impugned notification.
Arguments of the Parties
Petitioners' Arguments
- The petitioners contended that the notification was issued without inviting objections or granting any opportunity of hearing to the inhabitants; this amounted to violation of procedural fairness.
- They asserted that the population of the erstwhile Municipal Council, Gurgaon (as per Annexure P/4 dated 2.7.2007) was only 2,01,026, i.e., less than the three lakh threshold prescribed by the proviso to sub-section (2) of Section 3 of the 1994 Act; hence formation of a Municipal Corporation was impermissible.
- They argued that the petitioners' terms as members (till April 2010) had been impermissibly curtailed, in breach of the proviso to Article 243U of the Constitution and the first proviso to sub-section (1) of Section 12 of the Haryana Municipal Act, 1973.
Respondents' (State and Municipal Corporation) Arguments
- The State contended it was fully empowered under sub-section (2) of Section 3 of the 1994 Act to declare a municipality to be a corporation and that the population pre-condition (not less than three lakhs) was satisfied because the area notified comprised the municipal limits plus Sukhrali, Gurgaon and 52 (in narrative ultimately 54) other villages, the total population of which was certified as 3,80,003 according to the 2001 census.
- They asserted there is no provision in the 1994 Act requiring prior notice or personal hearing before declaring a municipality to be a corporation; the action is legislative in character and does not call for such procedural requirements.
- With respect to Annexure P/4, respondents said that document related only to a more limited area (municipal limits plus two villages) and thus did not represent the population of the entire area included by the impugned notification.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gram Panchayat Bassi Sekhan v. State of Punjab and others (CWP No.2273 of 2007) — decision of Division Bench (4 Sept 2008) | Held that exercise of powers by the State under provisions of the Municipal Act to alter municipal limits by excluding or including areas is legislative in nature. | The Court relied on this decision to support the proposition that declaring a municipality to be a corporation is a legislative function and therefore does not require prior notice or personal hearing to inhabitants. |
| State of Punjab v. Tahal Singh and others, AIR 2002 Supreme Court 533 | Referenced as an authority relied upon in Gram Panchayat Bassi Sekhan (as cited in the opinion). | The Court noted that the Division Bench decision (Gram Panchayat Bassi Sekhan) placed reliance on this Supreme Court judgment; the Court therefore treated it as supportive authority for the legislative-character proposition invoked. |
| K. Pramila Patnaik & another v. State of Orissa & others, AIR 2001 ORISSA 190 | Involved issues pertaining to suppression or dissolution of municipalities (as described in the opinion). | The Court held that this precedent was not applicable to the present case because the cited decisions addressed dissolution/suppression issues, whereas the present case concerned declaration of a municipal area as a corporation. |
| Mohansingh Tanwani & another v. State of Maharashtra & others, AIR 2002 BOMBAY 39 | Involved matters relating to suppression or dissolution of municipalities (as described in the opinion). | The Court held this decision was not applicable for the same reason: it dealt with dissolution/suppression, not with the legislative declaration of a municipal corporation under the 1994 Act. |
| S.L. Kapoor v. Jagmohan & others, AIR 1981 Supreme Court 136 | Addressed issues connected to removal or dissolution of public bodies or related procedural questions (as described in the opinion). | The Court stated this authority was not applicable because the present controversy did not involve removal or dissolution; instead, it involved automatic cessation of the Municipal Council upon valid creation of a Municipal Corporation. |
Court's Reasoning and Analysis
The Court examined the impugned notification (2.6.2008) and the statutory provision relied upon: sub-section (2) of Section 3 of the 1994 Act, which empowers the Government to declare any municipality (including rural areas or parts thereof) to be a Corporation, provided the population is three lakhs or more.
Key analytical steps recorded in the opinion:
- The Court reproduced and applied Section 3(2) of the 1994 Act (including the proviso requiring population of three lakhs or more).
- The Court considered the competing population figures: the petitioner relied on Annexure P-4 (dated 2.7.2007) asserting a total population of 2,01,026, but respondents explained (and placed on record) that Annexure P-4 pertained only to the municipal area together with two villages, not to the full area included by the notification.
- The Court noted the detailed schedule annexed to the impugned notification included the municipal limits plus Sukhrali, Gurgaon and 52 (narratively 54) other villages (the opinion reproduces the list of villages and references Annexures R-3/2 and R-3/3 which contain a site plan and list of villages respectively).
- On that basis, the State had certified the population of the area notified as 3,80,003 according to the 2001 census. The Court accepted the respondents' explanation that the notified area was larger than the area reflected in Annexure P-4 and therefore the three-lakh pre-condition was satisfied.
- The Court observed that the petitioner did not challenge the list of villages (Annexure R-3/3) or the site plan (Annexure R-3/2) by replication or rejoinder; as a result, the Court treated the averments in those annexures as deemed accepted by the petitioner.
- The Court addressed the contention that the petitioners' tenure had been curtailed and that the action violated Article 243U and provisions of the 1973 Act. The Court differentiated the present case (declaration of a municipal area as a corporation under statutory power) from cases of dissolution or removal of municipal bodies. It held that the creation of a Municipal Corporation resulted in automatic cessation of the Municipal Council because there was no longer a Municipal Council in existence; therefore there was no requirement to give prior notice or opportunity of hearing to the petitioner in that context.
- The Court relied on the principle (as stated in the Division Bench decision in Gram Panchayat Bassi Sekhan, which itself relied on State of Punjab v. Tahal Singh) that altering municipal limits or declaring an area a corporation is legislative in nature, and thus does not carry a statutory requirement of prior notice or personal hearing.
- The Court distinguished the authorities cited by the petitioner (K. Pramila Patnaik, Mohansingh Tanwani and S.L. Kapoor) on the ground that they dealt with suppression or dissolution of municipalities and related questions, which are different issues from the legislative declaration made under Section 3(2) of the 1994 Act.
Holding and Implications
HOLDING: The Court dismissed both writ petitions challenging the notification dated 2.6.2008.
Implications:
- Direct effect on the parties: The notification declaring Municipal Corporation, Gurgaon stands; the Municipal Council, Gurgaon ceases to exist and the petitioner consequently ceased to be a nominated member of that council when the corporation was validly created.
- On procedure and statutory compliance: The Court concluded that (a) the population pre-condition in the proviso to Section 3(2) of the 1994 Act was satisfied for the notified area (certified as 3,80,003 per 2001 census); and (b) there was no statutory requirement to issue prior notice or grant a personal hearing prior to a valid legislative declaration under Section 3(2).
- No broader new legal principle was announced by this order beyond the application of existing statutory text and the cited authorities; the decision applies those principles to the facts of these petitions.
Present:- Mr. Jagdish Manchanda, Advocate for the petitioner.
Mr. H.S. Hooda, Advocate General, Haryana with Mr. Sudhir Makkar, Sr. D.A.G. Haryana for respondents No.1 and 2.
Mr. J.P. Singh, Advocate for respondent No.3.
Mr. Harminderjit Singh, Advocate for the petitioners. Mr. H.S. Hooda, Advocate General, Haryana with Mr. Sudhir Makkar, Sr. D.A.G. Haryana.
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH JASWANT SINGH J.
This order shall dispose of CWP No.10712 and 10720 of 2008 wherein challenge has been laid to the notification dated 2.6.2008 (Annexure P/1) issued by the Government of Haryana for forming a Corporation known as Municipal Corporation, Gurgaon in place of Municipal Council, Gurgaon, on the ground of non-inviting of objections and without giving any opportunity of hearing to the inhabitants of the erstwhile Municipal Council, Gurgaon, with a further prayer for directing non-interference in the working of the Municipal Council Gurgaon till 2010.
Since common questions of facts and law are involved in both these petitions, hence with the consent of counsel for the parties both these cases are being disposed of by this common order. However, facts have been taken and dealt with from CWP No.10720/2008.
Briefly stated, the facts are that election of Municipal Council, Gurgaon took place on 16.4.2005 and the petitioner was nominated as a Member on 12.9.2005. It is stated that term of the Municipal Council, Gurgaon was to expire in 2010. It is further stated that earlier limits of Municipal Council, Gurgaon were extended to include the areas of Village Sukhrali and Village Gurgaon vide notification dated 20.6.2001 (Annexure P/3) and as a result thereof the total population within the limits of Municipal Council, Gurgaon had risen to 2,01,026 (as depicted in Annexure P/4). It is also stated that a meeting of the Commissioner, Gurgaon Division, Gurgaon, Deputy Commissioner, Gurgaon and Administrator HUDA and the President, Municipal Council, Gurgaon had been called for 4.1.2008 by the Director, Urban Local Bodies, Haryana with regard to fixation of schedule of boundaries for the proposed Municipal Corporation, Gurgaon. Thereafter, the State Government in exercise of the powers conferred by sub-section (2) of Section 3 of the Haryana Municipal Corporation Act, 1994 (hereinafter referred to as the 1994 Act) proceeded to issue the impugned notification dated 2.6.2008 (Annexure P/1), declaring erstwhile Municipal Council, Gurgaon alongwith areas as specified in the schedule to be a Corporation known as Municipal Corporation, Gurgaon, without inviting any objection or granting any opportunity of hearing to the inhabitants of the Municipal Council, Gurgaon, as a result of which the petitioner ceased to be a nominated member of the Municipal Council, Gurgaon, which is no more in existence due to formation of Municipal Corporation, Gurgaon. Hence, the present writ petition.
Respondent State of Haryana has filed its written statement and respondent Municipal Corporation, Gurgaon has filed its detailed reply in CWP No.10720 of 2008.
The stand of the respondents is that the State Government is fully empowered to issue impugned notification Annexure P/1 under sub- Section (2) of Section 3 of the 1994 Act and to declare any municipal area as Municipal Corporation, provided that the population of the area of the Corporation is not less than three lacs. Since the population of the areas of the Municipal Council, Gurgaon, created vide impugned notification Annexure P/1, has been certified to be 3,80,003 as per the last Census of 2001, the exercise of power is legal and valid and for the reason of proper and greater development and serving the interests of the public at large in the area. It has been further stated that there is no provision in the scheme of the 1994 Act for giving prior notice or personal hearing before declaring any municipality as Municipal Corporation. With regard to the averment of population of 2,01,026 (as depicted in Annexure P/4), it has been stated that the same was part of a covering letter dated 26.12.2002 (Annexure R-3/1) sent by the Municipal Council to Director, Urban Development Haryana, on the subject of formation of Municipal Council, Gurgaon wherein an estimated census of the population of the Municipal Town, Gurgaon, Village Sukhrali and Village Gurgaon had been sent, whereas as a matter of fact, total area included in the Municipal Corporation, Gurgaon (vide impugned notification Annexure P/1) comprises the municipal limits of erstwhile Municipal Council, Gurgaon, Village Sukhrali, Village Gurgaon and 52 other villages (as depicted in Annexure R-3/3), thus raising the population to 3,80,003 as per the last Census of 2001. Therefore, it has been stated that the population of the area declared to be Municipal Corporation, Gurgaon, was never less than 3 lacs as required under proviso to sub-section (2) of Section 3 of the 1994 Act.
Learned counsel for the petitioner has raised two-fold submissions-firstly that the term of the petitioner as member of the Municipal Council, Gurgaon was five years i.e. till April 2010 and the same has been curtailed vide impugned notification without giving any reasonable opportunity of being heard in violation of provisions of the proviso to Article 243U of the Constitution of India as also the provisions of the first proviso to sub-section (1) of Section 12 of the Haryana Municipal Act, 1973 (hereinafter referred to as the 1973 Act); and secondly that the provisions of proviso to sub-section (2) of Section 3 of the 1994 Act have not been complied with while forming the Municipal Corporation, Gurgaon in place of Municipal Council, Gurgaon as the population of the erstwhile Municipal Council, Gurgaon as per the 2001 Consensus was less than three lacs as depicted in Annexure P/4.
Learned Advocate General, Haryana, on the other hand has argued that the case in hand is not that of dissolution of a municipality that would entail grant of reasonable opportunity of being heard before its dissolution, rather it is a case of declaration of a municipal area as a Corporation in exercise of powers under sub-section (2) of Section 3 of the 1994 Act, within the parameters laid down in the Act and there is no provision in the Act for giving any prior notice or personal hearing before declaring any municipality as a Municipal Corporation. It was then argued that the laid down parameter provided in sub-section (2) of Section 3 before issuing impugned notification (Annexure P/1) have been followed in as much as the pre-condition of population of the area to be declared as a Corporation not being less than three lacs has been adhered to.
We have heard learned counsel for the parties and perused the record.
Perusal of the impugned notification dated 2.6.2008 (Annexure P-1) reveals that in exercise of powers conferred by sub-section (2) of Section 3 of the Act of 1994, State of Haryana as declared the Municipal Council, Gurgaon comprising the area specified in the schedule given in this notification to be a Corporation known as Municipal Corporation, Gurgaon. Therefore, it is necessary to reproduce Section 3(2) of the Act of 1994 for adjudication of the matter in controversy, as under:-
" 3. Declaration of Municipal Area as Corporation:-
(1) xxx xxx xxx (2) The Government may, from time to time, by notification in the Official Gazette, declare any municipality including area comprising rural area or a part thereof, if any, to be a Corporation known as "the Municipal Corporation of __________ (Name of Corporation)":
Provided that no municipality including area, comprising rural area or a part thereof, if any, shall be so declared to be a Corporation unless the population thereof is three lacs or more. "
The petitioner has relied upon a document dated 2.7.2007 prepared by the office of Executive Officer, Municipal Council, Gurgaon (Annexure P-4) to substantiate that on the date of notification i.e. 2.6.2008 total population of the area of the Corporation was 2,01,026. But this is not correct as respondent No.3 has rightly submitted in his affidavit that letter dated 2.7.2007 (P-4) pertains to the pupulation of area under the limits of Municipal Council, Gurgaon alongwith two villages namely Sukhrali and Gurgaon and break up is as under:-
As a matter of fact the detailed area to be included in the Municipal Corporation, Gurgaon by way of impugned notification dated 2.6.2008 is comprising of municipal limits of Gurgaon, villages Sukhrali, Gurgaon and 52 more villages as depicted in the schedule. In this way the total population of the above area has been certified to be 3,80,003 as per last census of 2001. The boundaries of Municipal Council area is described with the black line and the area covered under the Municipal Corporation, Gurgaon is encircled with red dotted line in the site plan placed on record as Annexure R-3/2. The detailed list of villages is given in Annexure R-3/3, the details of which are given as under:-
1. Bhimgarh Khera
2. Choma Khera
3. Sarai Alawardi
4. Dhanwapur
5. Basai
6. Garoli Kalan
7. Garoli Khurd
8. Mohmmadpur Jharsa
9. Narsinghpur
10. Khandsa
11. Kadipur
12. Daultapur - Narsirabad (Cartapuri)
13. Moulahera
14. Dhundahera
15. Sarhaul
16. Nathupur
17. Sikanderpur Ghoshi
18. Jharsa
19. Islampur
20. Samaspur
21. Tigra
22. Ghasola
23. Teekri
24. Fazilpur Jharsa
25. Behrampur
26. Begampur Khatola
27. Kherki Daula
28. Naharpur Rupa
29. Chakkarpur
30. Silokha (Jeewan wali & Chander Nagar)
31. Kanhai
32. Wazirabad
33. Sihi
34. Tikampur
35. Paula Khasuru Pur (Jahajgargh)
36. Shahpur
37. Bindapur
38. Fathepur viran
39. Inayatpur Khera
40. Haiderpur viran
41. Adampur
42. Daultabad
43. Kherki Majra
44. Dhankot
45. Harsaru
46. Nangli Umarpur
47. Badhshapur
48. Gopalpur (Tuglakpur)
49. Ghota
50. Naya Nehrampur
51. Ulhawas
52. Gawal Pahari Therefore, the net result is that in the notification dated 2.6.2008, total area as contained in the schedule is old M.C. Gurgaon limit plus 54 villages and therefore, the population is certified as 3,80,003.
Therefore, ground of the petitioner that the population is less than 3,00,000 is devoid of merit, consequently rejected.
The provisions of the Act quoted above reveal that the Government is fully empowered to declare any Municipality including area comprising in any rural area or part thereof to be a Corporation and there is no need of any prior notice or calling objections. Rather, this is a function akin to legislation. A Division Bench of this Court in CWP No.2273 of 2007, Gram Panchayat Bassi Sekhan v. State of Punjab and others, decided on 4th of September, 2008 by placing reliance on a judgment of the Hon'ble Supreme Court in State of Punjab v. Tahal Singh and others, AIR 2002 Supreme Court 533 has held that exercise of powers by the State Government under the provisions of the Municipal Act, while proceeding to alter the limits by excluding or including certain areas in a municipality is legislative in nature. Therefore, in the present case there was no requirement for giving any prior notice or personal hearing before declaring the area is a municipal corporation. No legal right of the petitioner has been infringed.
After issuance of notification dated 2.6.2008, a member of Municipal Council, Gurgaon ceases to be a member of Municipal Council as the same is no longer in existence after the formation of Municipal Corporation. The Government is fully competent to declare the Municipal Corporation in the larger interest of the Society due to increase in the population and for the greater development of infrastructure, as Gurgaon city is one of the main destination around the Capital of India and attracting so many investors from all over the world. Petitioner has failed to press into service any provision of the Act for giving any prior notice or personal hearing before declaring the municipality as Municipal Corporation.
It is necessary to mention here that petitioner has not controverted the details of list of villages appended at Annexure R-3/3 and map/site plan as Annexure R-3/2 by way of any replication or rejoinder. Therefore, averments made in both the annexures will be deemed to have been accepted by the petitioner. The contention of the petitioner that the tenure of the petitioner as member of the Municipal Council has been curtailed as the same was till April, 2010, without giving any reasonable opportunity of hearing and the same is in violation of proviso to Article 243-U of the Constitution of India as well as first proviso to sub-section (1) of Section 12 of the Act of 1973 is misplaced and does not help the petitioner as there is neither removal of the petitioner nor dissolution of the municipal council. Rather, it is automatic ceasing of the Municipal Council after issuance of notification dated 2.6.2008 for creation of Municipal Corporation and the net result is that as there is no Municipal Council in existence and only Municipal Corporation will be in existence, so there is no need of issuing any prior notice or opportunity of hearing to the petitioner. Thus, the judgments cited on behalf of petitioner reported as K. Pramila Patnaik and another v. State of Orissa and others, AIR 2001 ORISSA 190, Mohansingh Tanwani and another v. State of Maharashtra and others, AIR 2002 BOMBAY 39 and S.L. Kapoor v. Jagmohan and others, AIR 1981 SUPREME COURT 136 are not applicable in the present case as in the cited cases, the question involved was with regard to either suppression or dissolution of the municipalities.
Consequently, both the writ petitions are dismissed.
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