Hon'ble Sudhanshu Dhulia, J. (Oral)
Heard Mr. L.P Naithani, Senior Advocate assisted by Mr. Vipul Sharma, Advocate and Mr. Lok Pal Singh assisted by Mr. Tapan Singh, Advocates for the petitioners and Mr. S.N Babulkar, learned Advocate General and Mr. J.P Joshi, learned Chief Standing Counsel for the State of Uttarakhand/respondents.
Counter affidavits have been filed today by the State, the same are taken on record.
Learned counsels for the petitioners state that the counter affidavits have been studied and since in the present case only an interpretation of law needs to be required on which hinges the entire controversy, no rejoinder needs to be filed.
What is under challenge in both these writ petitions, referred above, is a Notification dated 20.5.2011 by which the State of Uttarakhand while exercising powers under Article 243Q of the Constitution of India read with Section 8-AA of the Uttar Pradesh Municipal Corporation Act, 1959 (as applicable in the State of Uttarakhand) have dissolved the two municipal councils and an Administrator has been appointed in their place, which is the District Magistrates of Haridwar and Nainital, respectively.
In short what is under challenge is the dissolution of a democratically elected body by an executive order dated 20 May, 2011. The counsels for the petitioners have challenged the above impugned order on primarily two grounds. The first ground of challenge is that the Municipal Council after the 74 amendment of the Constitution of India is now a constitutional body. Under Article 243U of the Constitution of India, the term of a Municipal Council is for five years and cannot be curtailed in any given contingency and moreover before the term of five years are to complete, the new council has to be elected so that there is no rupture or hiatus between coming to an end of an existing council and taking over of the newly elected council. In other words, a hiatus or an interregnum is not visualized or contemplated in the scheme of the Constitution, pertaining to these Municipalities, particularly in Part IX A of the Constitution of India. The counsels further contend that the municipal councils were elected in the year 2008 and the first meeting of the respective councils were held on 6.5.2008 at Haridwar and that of Haldwani on 5.5.2008 and since the period of five years have to be concluded from the first meeting of the council, they are liable to continue for a period of five years i.e till 5.5.2013 for Haridwar and 4.5.2013 for Haldwani. By the impugned orders, though this period of five years has been curtailed and a hiatus has been created as there is no elected council at present but these powers have been given to an Administrator, which is in violation of the Constitution of India.
The second ground of contention is that even assuming for the sake of arguments that in a given contingency a duly elected municipal council was liable to be dissolved yet the existing municipal council was liable to be heard and given a reasonable opportunity of hearing before it could be so dissolved, under any law. The recourse here is again of Part IX A, of the Constitution of India namely the first proviso to Article 243 U which provide that before dissolving a municipality, it must be given a reasonable opportunity of hearing.
The learned Advocate General appearing for the State of Uttarakhand Sri S.N Babulkar has opposed both these contentions and has defended the stand of the Government by submitting that first and foremost a hiatus between one elected municipality and another is sometime a necessity and both the Constitution of India as well as the law laid down by the Hon'ble Apex Court support this view. The second argument of the learned Advocate General is that in the present facts and circumstances of the case, an opportunity of hearing was not liable to be given as it is not a “dissolution” as it is ordinarily understood but it is a dissolution made under special circumstances, where a municipal council has been elevated to the status of a municipal corporation, in other words a “Nagar Palika Parishad” has been elevated to the status of “Nagar Nigam” and therefore it is not a “dissolution” as contemplated under Article 243U of the Constitution of India.
On facts, the State admit that the two municipal councils were elected in the year 2008 and that no opportunity of hearing was given to these municipal councils before they were dissolved. On these admitted facts the two legal questions, referred above, are being decided as under:
1. First Question:
Whether the Constitution of India visualizes a complete five years period for a municipality and the five years period must be completed in every given situation, and a hiatus can never exist?
Counsels for the petitioners have relied upon Article 243U which, inter alia, prescribes a duration of a municipality. For a ready reference, Article 243U is quoted below:-
“243U. Duration of Municipalities, etc. -
(1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer:
Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).
(3) An election to Constitute a Municipality shall be completed,
(a) before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date of its dissolution:
Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period.
(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would leave continued. under, clause (1) had it not been so dissolved.”
The learned counsels for the petitioners state that the term of an elected municipality is to be for a period of five years. Article 243U(3)(a) further states that the new municipality has to be constituted before the expiry of the existing municipality. This being the constitutional mandate, the counsels argued that the Constitution does not visualize a rupture or a contingency where a break is given between one municipality and another. In other words, it is continuous body and no hiatus or interregnum is visualized under the Constitution. This argument of the petitioner may not be entirely correct for the reasons that in a decision of the Hon'ble Apex Court namely in State of Maharashtra v. Jalgaon Municipal Council reported in (2003) 9 SCC Page 731 (from hereinafter referred to as “Jalgaon case”), it has been held that in a given contingency a hiatus may be justified between one duly elected municipality and another, and more particularly in a case where a municipal council is being elevated to the status of a municipal corporation. All the same, the learned Senior Advocate Sri L.P Naithani has argued that the ratio of a given case is applicable only to the facts of that case and the facts of the present case are different and they did not necessitate, dissolution of the municipality and appointment of an Administrator and consequently hiatus as done in Jalgaon case.
Though the facts of the present case are somewhat different from the one cited by the petitioners yet the position of law being that in a given case a municipal council can be dissolved in accordance with law, before its term has come to an end and the newly elected body not yet constituted and a hiatus can be created in a given case. Therefore, in first question, the answer would be in affirmative and therefore against the petitioners.
Question - 2
Whether an opportunity of hearing was liable to be given to the “Nagar Palika Parishad” before its dissolution?
The petitioners have heavily relied upon the proviso to Article 243U of the Constitution of India, which says:
“Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.”
The counsels state that Article 243 U primarily states two things. One that the period of an elected municipality is going to be five years, the second that in case it is curtailed and the municipality is to be dissolved, before such dissolution, a “reasonable opportunity” of hearing is mandatory. Reliance has also been placed upon a judgment of Orissa High Court namely K. Pramila Patnaik v. State of Orissa reported in AIR 2001 Orissa 190. In the said case, Nabarangpur Municipal Council was dissolved and though an opportunity was given to the council before such dissolution, but it was not a reasonable opportunity of hearing and the contention of the State Authorities in the said case was that the Act (i.e the State Act of Orissa) provided an opportunity which was given but the Hon'ble High Court of Orissa held otherwise. Relying upon the proviso to Article 243U of Constitution of India the Hon'ble Court held that a reasonable opportunity of hearing must be given before a municipal council is to be dissolved and the provision of the State Act shall be read in consonance of the constitutional provision. The counsels before this court have argued that an exactly similar situation has come up in the present case, where municipal councils of Haridwar as well as Haldwani have been dissolved without giving an opportunity of hearing. This is in violation of the first proviso to Article 243U of the Constitution of India.
Learned Advocate General has an ingenious reply to the above contention. The learned Advocate General submits that Article 243Q and Article 243U visualize entirely different contingencies and the two provisions of the Constitution of India have to be read separately and one cannot be read in the context of another. The counsel further argues that in the present case what has been invoked by the Government is Article 243Q and therefore there is no application of Article 243U.
Article 243 Q of the Constitution of India reads as follows:
“243Q. Constitution of Municipalities.
(1) There shall be constituted in every State, -
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area.
(b) a Municipal Council for a smaller urban area;and
(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:
Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township.
(2) In this article, ‘a transitional area’, ‘a smaller urban area’ or ‘a larger urban area’ means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part.”
Therefore, what the Constitution visualizes under Article 243Q is three types of Municipalities:
a) A Nagar Panchayat, which is formed in an area, which is in transition from a rural area to an urban area.
b) A Municipal Council for a smaller urban area; and
c) A Municipal Corporation for a larger urban area.
Under Clause (2) of Article 243Q what would be ‘a’ ‘b’ ‘c’ i.e a transitional area, a smaller urban area and a larger urban area would be as determined by the Governor having consideration to population of the area, the density of the population, the revenue generated for local administration, etc. Earlier a transitional area, smaller urban area and larger urban area were as it had been determined by the orders of the erstwhile State of Uttar Pradesh, where primarily a larger urban area (for which a municipal corporation is to be constituted) had to have a population of five lakhs or more. All the same, the present Government in the State of Uttarakhand exercising its power under Article 243Q(2) has redetermined these areas by order dated 8 October, 2010 stating that in a plain area such as in the present case with which we are presently concerned municipal corporation can be constituted in an area having 1 lakh 25 thousand of population. Though this order dated 8 October, 2010 has also been challenged in Writ Petition No. 1031 of 2011 (M/S) but no serious contention has been made before this Court as to what is the anomaly with such order and therefore it has not been made an issue in the present writ petition. For our present purposes, it is sufficient to note that vide order dated 8 October, 2010 a municipal corporation can be created in an area which has a population of 1.25 lacs. In other words, a larger urban area in plain areas (in the State of Uttarakhand) the benchmark of 1.25 lakh of people has been fixed.
The argument of the learned Advocate General would be that now what has been done in the present case is that the municipal councils of Haridwar as well as Haldwani have been upgraded to that of municipal corporations. This can be done by the State Government by invoking powers under Article 243Q of the Constitution of India. Article 243Q of the Constitution of India does not contemplate that when a municipal council has to be elevated to the status of a municipal corporation and therefore by necessary implication it has to be dissolved, an opportunity of hearing is liable to be given to anyone. The counsel further argues that had this been so, such a provision would have been incorporated in Article 243Q. Since this has not been done, one cannot read principal of natural justice and fair play in Article 243Q of the Constitution of India. He further argues that reading of the principal of natural justice and fair play or in other words a reasonable opportunity of hearing to be given before dissolution, and the principle of natural justice and fair play cannot be read in the Article 243Q of the Constitution of India, since provision has been deliberately omitted otherwise as in Article 243U, such a provision (i.e giving of “reasonable opportunity of hearing”) should have been there in Article 243Q as well.
After hearing submissions of both the counsels, this Court is of the view that after the 73 and th 74 amendment “Panchayats” and “Municipalities” have gained a constitutional status. These are not ordinary local bodies of self-governance as they were prior to the said constitutional amendment. The municipal council consists of elected representative of people of Haridwar and that of Haldwani, respectively. In other words, these municipal councils represent the electorates of Haridwar and Haldwani respectively. Dissolution of such a body by an executive feat may be a requirement of law in a particular given contingency, but before a municipal council is dissolved a reasonable opportunity of hearing is mandatory. This is not a mandate of an ordinary statute but of the Constitution of India provided in the first Proviso to Article 243 U of the Constitution of India, which reads as follows:
“Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.”
The first principle of natural justice and fair play which is giving of a reasonable opportunity of hearing before an adverse order is to be passed, is a principle that has by now taken a ‘deep root’ in our judicial conscience. Even in the Jalgaon case relied upon by the respondents regarding an opportunity of hearing to be given to the municipal council before its dissolution, the Hon'ble Apex Court had to say this:
“30. It is a fundamental principle of fair hearing incorporated in the doctrine of natural justice and as a rule of universal obligation that all administrative acts or decisions affecting rights of individuals must comply with the principles of natural justice and the person or persons sought to be affected adversely must be afforded not only an opportunity of hearing but a fair opportunity of hearing. The State must act fairly just the same as anyone else legitimately expected to do and where the State action fails to satisfy the test it is liable to be struck down by the courts in exercise of their judicial review jurisdiction. However, warns Prof. H.W.R Wade that the principle is flexible:
“The Judges, anxious as always to preserve some freedom of manoeuvre, emphasise that “it is not possible to lay down rigid rules as to when the principles of natural justice are to apply : nor as to their scope and extent. Everything depends on the subject-matter’. Their application resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. ‘In the application of the concept of fair play there must be real flexibility.’ There must also have been some real prejudice to the complainant: there is no such thing as a merely technical infringement of natural justice.” (Wade & Forsyth: Administrative Law, 8 Edn., 2000, pp. 491-92.)”
Therefore, the Hon'ble Apex Court even in that case held that a proper opportunity of hearing is necessary before the dissolution of a municipal council. Though it is a different matter that in Jalgaon case, the Hon'ble Apex Court came to the conclusion that the opportunity of hearing given to the concerned council was sufficient, yet what is relevant for our purposes in the present case is that the Hon'ble Apex Court even in Jalgaon case has held that before dissolution of a council, in view of the proviso to Article 243 U an opportunity of hearing is liable to be given before such dissolution. Same is the view of the learned Single Judge of Orissa High Court in K. Pramila Patnaik v. State of Orissa (supra), which has already been referred above.
The argument of the learned Advocate General that what has only been invoked is Article 243Q cannot be accepted inasmuch as the necessary implication and the effect of the impugned order is that duly elected councils stands dissolved, and before its dissolution the council was not heard. The purpose of this dissolution is immaterial. The purpose may be good, even noble and laudable, but a reasonable opportunity of hearing must precede this dissolution. Moreover, what has actually been invoked is not merely Article 243Q of the Constitution of India but Section 8-AA of the Uttar Pradesh Municipal Corporation Act, 1959 which reads as under:-
“8-AA. Temporary provisions for the constitution of Corporation and administration of area notified as City. -
(1) Where any area has been specified to be a larger urban area under clause (2) of Article 243-Q of the Constitution] and the State Government is of opinion that until the due constitution for such area under [the Constitution], it is expedient so to do, then the State Government may, notwithstanding anything contained in this Act or any other law for the time being in force, by order direct that -
(a) [the Municipal Council] or any other local authority constituted for exercising jurisdiction in such area shall, with effect from such date as may be specified in the said order, hereinafter in this section referred to as ‘specified date’, stand dissolved or, as the case may be, cease to exercise jurisdiction in such area;
(b) all powers, functions and duties of the Corporation, its Mayor Deputy Mayor, [Wards Committee, Executive Committee, Development Committee and other Committees established under clause (e) of Section 5 and of the Municipal Commissioner shall as from the specified date, be vested in and be exercised, performed and discharged by an officer appointed in that behalf by the State Government (hereinafter referred to as the Administrator) and the Administrator shall be deemed in law to be the Corporation, the Mayor, the Deputy Mayor, [Wards Committee], Executive Committee, Development Committee or other Committees, or the Municipal Commissioner as the occasion may require;
(c) such salary and allowances of the Administrator as may be fixed by general or special orders of the State Government in that behalf, shall be paid out of the Corporation fund.
(2) Subject to any general or special orders of the State Government, the Administrator may, in respect of all or any of the powers conferred on him by clause (b)--
(i) consult such committee or other body, if any, constituted in such manner as may be specified in that behalf; or
(ii) delegate, subject to such conditions as he may think fit to impose, the power so conferred to any person or Committee or other body constituted under Sub-clause (i), to be specified by him in that behalf.
(3) The provisions of this section shall be in addition to, and not in derogation of, the provisions contained in Section 579 and Section 580.]”
Therefore, municipal councils have been actually dissolved not under the Constitution of India but under Section 8-AA of the Uttar Pradesh Municipal Corporation Act, 1959 as is evident by the impugned order dated 20.5.2011 The dissolution has been done under Section 8-AA of the Act and the Administrator has also subsequently been appointed in place of municipality also under Section 8-AA of the Uttar Pradesh Municipal Corporation Act, 1959. This is an admitted case by the State Government, which is also clear from the counter affidavits, which have been filed before this Court that no opportunity of hearing or show cause much less a reasonable opportunity of hearing was given to the municipal councils before their dissolution. In fact the case of the State is that no opportunity was liable to be given to them! The impugned order dated 20.5.2011 is therefore clearly violative of the Constitution of India. A democratically elected body such as a municipal council has been dissolved by an order in violation of the Constitution of India. Such an order cannot stand.
The writ petitions are therefore allowed. The orders dated 20.5.2011 are hereby quashed. The two municipal councils now stand revived. The two Administrators i.e District Magistrate, Haridwar as well as District Magistrate, Nainital are hereby directed to handover the charge forthwith to the elected representatives of these municipalities.
No orders as to costs.
Comments