IMPORTANT POINT
Notification fixing parameters of an area will not be valid unless requirements of Article 243Q(2) are considered. Any notification constituting a municipality without proper notification under Article 243Q(2) will not be valid.

JUDGMENT :

Chelameswar, J.

Leave granted.

2. These two appeals are inter connected tossing up an important question of law regarding the interpretation of Article 243 Q of the Constitution of India.

3. It is not necessary for us to give the complete factual details and history of the case for the purpose of this order except the bare minimum. The litigation revolves around the upgradation by a notification dated 6.10.2008 of Gram Panchayat of Napasar Village as Nagar Palika (Municipality) Class IV [State Government while exercising power conferred to it under section 3 (1) (A) of the Nagar Palika ordinance 2008, State Government hereby declares Gram Panchayat Napasar as Nagar Palika Fourth category. Existing limit/area of the Gram Panchayat Napasar will be the area of Nagar Palika Napasar.] category by the State of Rajasthan purportedly in exercise of power conferred under Section 3(1)(A) of the Rajasthan Municipalities Ordinance 2008 [The ordinance was eventually replaced by Rajasthan Municipalities Act, 2009.]. Legality of the said notification was challenged before the Rajasthan High Court in a writ petition. It was dismissed by a learned Single Judge. Aggrieved by the dismissal, the matter was carried in a writ appeal. During the pendency of the writ appeal, the impugned notification dated 6.10.2008 was withdrawn by another State of Rajasthan by a notification dated 18.9.2009. The writ appeal was therefore, rendered infructuous.

4. Challenging the notification dated 18.9.2009, another writ petition came to be filed. The said writ petition was allowed by a Division Bench by its judgment dated 13.5.2015 quashing the notification and directing the State to take consequential steps [The consequent act referred to by the court is that a new notification was directed to be issued.]. Aggrieved by the same, SLP(C)No.11091/2017 came to be filed. Pursuant to the direction of the High Court, a fresh notification dated 2.6.2016 came to be issued once again for establishing a Nagarpalika for the Napasar village. Challenging the said notification, another writ petition came to be filed before the Rajasthan High Court. It was dismissed by a judgment dated 3.8.2016. On appeal, the same was confirmed by the Division Bench by its judgment dated 12.9.2016. Aggrieved by the same, SLP(C)No.38618 of 2016 is filed.

5. The correctness of the two judgments of the High Court impugned in these two appeals, is questioned on various grounds. In our opinion, it is not necessary to examine the various submissions made before us. The impugned actions of the respondent State which culminated in the two impugned judgments of the High Court suffers from a fundamental infirmity which goes to the root of the matter.

6. The establishment of municipalities and their organisations is governed by Part IX A (consisting of Articles 243P to 243ZG) of the Constitution of India inserted in the Constitution by the Constitution 74th (Amendment) Act, 1992 with effect from 1.6.1993. Article 243P (e) defines the expression “Municipality” to mean an institution of self-government constituted under Article 243 Q. Article 243 Q of the Constitution of India declares 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 smaller urban area; and

(c) a Municipal Corporation for a larger urban area, in accordance with 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