1999 Supreme(Guj) 49

Gujarat High Court
Judgename :C.K.THAKKER, M.C.PATEL
ANJAR MUNICIPALITY - Appellant
Versus
J.M.VYAS OR HIS SUCCESSOR-INOFFICE DEPUTY SECRETARY,urban DEVELOPMENT and URBAN HOUSING DEVELOPMENT DEPARTMENT - Respondent
S.C.A. 866 of 1999
Decided On : 02/17/1999

Headnote:(a) Gujarat Municipalities Act, 1963 — Sec. 263 — (As amended by the Amendment Act 17 of 1993) — Constitutional validity — It is alleged that provision is ultra vires Part III as also Art. 243-U of Constitution — Court considered the phraseology used in Art. 243-U and found that the said provision saves the power of competent legislature of dissolution of Municipality in accordance with law as contemplated under Sec. 263 of the Act — Art. 243U states that every Municipality shall continue for five years from the date appointed for its first meeting unless sooner dissolved under any law for the time being in force — A bald assertion in this regard that there should be no dissolution of Municipality notwithstanding misfeasance, nonfeasance breach of duties imposed by statute or failure to perform statutory obligation can not be countenance by a Court of law in any legal system governed by Rule of law — Such a view neither favoured under Sec. 263 of the Act nor by Parliament under Art. 243-U of Constitution.

       Looking to the phraseology used in Art. 243U, it is clear to us that the said provision saves the power of competent Legislature of dissolution of a municipality in accordance with law. It is clear from the language of Art. 243U which states that every municipality shall continue for five years from the date appointed for its first meeting unless sooner dissolved under any law for the time being in force. It was no doubt contended that the expression unless sooner dissolved under any law for the time being in force would not apply to a municipality which has come into power after the expiration of one year from the date of commencement of the Constitution (Seventy-fourth Amendment) Act, 1992 as mentioned in Art. 243ZF. In our considered opinion, however, the language of Art. 243U is clear and unambiguous. It applies to all municipalities. Article 243ZF on the other hand, is a transitory provision for continuance of existing laws and municipalities. It, therefore, cannot successfully be contended that the provisions of Art. 243U would not apply to the present case. The legal position, in our view, is that ordinarily a municipality shall continue for five years from the date appoined for its first meeting, unless sooner dissolved under any law for the time being in force. Reading Art., 243U, it can be said that if a municipality has come into existence in accordance with law, it must be allowed to complete its statutory terms of five years, provided it is not subject to dissolution sooner under any law for the time being in force. There is a further safeguard in the nature of Proviso to Clause (1) of Art. 243U which enacts that before a municipality is dissolved, it shall be afforded a reasonable opportunity of being heard. From the conjoint reading of Art. 243U of the Constitution and Sec. 263 of the Act, it is amply clear that normally every municipality must be allowed to complete its terms of five years. Section 263 of the Act, however, authorises the State Government to take an appropriate action of dissolution on the grounds mentioned therein. Before taking such action, a municipality must be given reasonable opportunity of being heard. A bald assertion by the learned Counsel for the petitioners that there should be no dissolution of municipality notwithstanding misfeasance, nonfeasance, breach of duties imposed by a statute or failure to perform statutory obligations cannot be countenanced by a Court of law in any legal system governed by Rule of Law. Such a view, in our judgment, is neither favoured by the Legislature under Sec. 263 of the Act nor by Parliament under Art. 243U of the Constitution.

       [Para 14]

       The said Article does not in any way put embargo on or prohibit a competent Legislature to make provision for dissolution of a municipality provided that before such action is taken, a municipality is given reasonable opportunity of being heard. Now, whether or not an action of dissolution in a given case is in accordance with law and whether or not a reasonable opportunity of being heard was afforded to the Municipality must be decided in the light of the facts and circumstances of a particular case. But there is no absence of power on the part of the State Legislature in enacting such a provision and if a provision regarding dissolution of municipality is found in a statute, such law cannot be declared unconstitutional or ultra vires Art. 243U of the Constitution on the ground that under that provision, a municipality shall continue for five years from the date appointed for its first meeting. The only interpretation, in our view, in consonance with the provisions of Part IXA would be that a municipality constituted under any law shall continue for five years from the date appointed for its first meeting unless it is dissolved under the provisions of the Gujarat Municipalities Act and before such action is taken, reasonable opportunity of being heard is afforded to the municipality.

       [Para 18]

       (b) Gujarat Municipalities Act, 1963 — Sec. 63(1) — (As amended by the Amendment Act 17 of 1993) — Notice to show cause why the Municipality should not be dissolved — Validity of the notice challenged on ground that it is malafide — Division Bench hearing the challenge to the constitutional validity of Sec. 263 of the Act refused to decide the point because such matter must first go before the Single Judge for decision — Court does not lack the jurisdiction to decide but that it would prejudice the right of party to intra Court appeal under Sec. 15 of Letters Patent after the decision by Single Judge — Court dismiss the petition observing that it is open to the petitioners to take appropriate proceedings in accordance with law if they are aggrieved by issuance of notice.

       In Courts opinion, the law is fairly well settled. Reading the High Court Rules, the office was right in placing the matter before us as there was challenge to the constitutional validity of Sec. 263 of the Act. On that, we have heard the learned Counsel for the petitioners at length. We have dealt with all the arguments and in our opinion, it cannot be said that the said section is unconstitutional or inconsistent with the provisions of Art. 243U of the Constitution. The next question whether the notice was issued in colourable exercise of power or mala fide obviously depends upon the facts of the case. Neither under Order 14, Rule 2 of the Code of Civil Procedure, nor from the ratio laid down in Gujarat Working Class Union, it can be held that this Court is bound to decide the matter on merits even if it has recorded a finding that Sec. 263 is constitutional and intra vires. It is, no doubt, open to this Court to do so, but in our opinion, ordinarily, when such matter under the High Court Rules, requires to be heard by a Single Judge, it would be appropriate if it is decided by a Single Judge. It may also be remembered that an order passed by a Single Judge of this Court is subject to intra-Court appeal under Clause 15 of the Letters Patent. If a question is decided by a Division Bench, an aggrieved party may lose a right of appeal which is otherwise available to him in law. Normally, this Court would not like to exercise the power and decide other issues raised in the petition depriving and aggrieved party of the right of appeal.

       [Para 26]

       Since Court are not entering into the correctness or otherwise of the allegations of the petitioners, we dismiss the petition by observing that it is open to the petitioners to take appropriate proceedings in accordance with law, if they are aggrieved by issuance of notice. Court may state that as Court have refused to decide that question, as and when such question is raised before an appropriate forum, it will be decided on its own merits, without being influenced in any manner by the observations made by this Court.

       [Para 27]