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2018 Supreme(UK) 189
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Sudhanshu Dhulia, J.
Gram Sabha Mawakot & Others – Petitioners
Versus
State of Uttarakhand & Others – Respondents
Petition (M/S) No. 1047, 1101, 1107, 1276, 1286, 1292, 1287, 1266, 1183, 1184, 1214, 1223, 1224, 1258, 1260, 1179, 1144 of 2018
Decided On : 14-05-2018
For the Petitioners:Mr. V.B.S. Negi, Senior Advocate assisted by Mr. A.K. Joshi, Advocate, Mr. Yogesh Pacholia, Mr. Subhash Upadhyaya, Mr. Vivek Shukla, Mr. Siddhartha Singh, Mr. B.D. Pandey, Mr. Lalit Samant, Mr. D.S. Bohra, Mr. D.S. Mehta, Mr. Rakesh Kumar Joshi, Mr. D.P. Bhatt, Mr. M.S. Bisht, Mr. M.C. Bhatt, Advocates
For the Respondents:Mr. S.N. Babulkar, Advocate General assisted by Mr. Paresh Tripathi, Chief Standing Counsel, Mr. Sanjay Bhatt, Advocate for the State Election Commission., Mr. S.C. Bhatt, Advocate for Nagar Palika Parishad, Khatima, District Udham Singh Nagar., Mr. Navnish Negi, Advocate for Nagar Palika Parishad, Bhowal, District Nainital., Dr. Kartikey Hari Gupta, Advocate for Nagar Nigam, Haridwar., Mr. B.S. Negi, Advocate for Nagar Panchayat, Nandprayag, District Chamoli., Mr. M.K. Chand, Advocate for Nagar Palika Parishad, Tanakpur, District Champawat
Headnote:
CONSTITUTIONAL LAW - Panchayats and Municipalities - Conversion of rural area into urban area - Discretionary powers of Governor - Notification under Article 243Q(2) of the Constitution of India read with Sections 3 & 4 of the U.P. Municipalities Act - To be issued by the Governor in his discretionary powers and not by the Government under its Rules of Business.
Fact of the Case:
The petitioners, members of Gram Sabhas and erstwhile Gram Pradhans, challenged the notifications issued by the State Government converting rural areas into urban areas. They contended that the exercise undertaken by the State executive was in violation of the Constitutional provisions and the State statute. The State Government argued that the petitioners' grievance had already been complied with by giving them an opportunity of hearing, as directed by the Court in an earlier round of litigation. It also relied on a Division Bench judgment holding that the matters raised by the petitioners had already been considered and rejected.
Finding of the Court:
The Court held that the power to decide what would constitute a “transitional” or a “smaller” or “larger” urban area is to be exercised by the Governor in its discretionary powers, under clause (2) of Article 243Q read with Sections 3 & 4 of the U.P. Municipalities Act. It is a decision where he has to use his “discretion” and not to act merely on the aid and advice of his council of ministers. The Court further held that the notifications under Article 243Q(2) of the Constitution of India read with Sections 3 & 4 of the U.P. Municipalities Act are the notifications, which have to be issued by none other than the Governor, in his discretionary powers. Since this has not been done, the notifications do not have the validity of law.
Issues: 1. Whether the power to decide what would constitute a “transitional” or a “smaller” or “larger” urban area is to be exercised by the Governor in its discretionary powers, or by the Government under its Rules of Business? 2. Whether the notifications under Article 243Q(2) of the Constitution of India read with Sections 3 & 4 of the U.P. Municipalities Act are the notifications, which have to be issued by none other than the Governor, in his discretionary powers?
Ratio Decidendi: 1. The power to decide what would constitute a “transitional” or a “smaller” or “larger” urban area is to be exercised by the Governor in its discretionary powers, under clause (2) of Article 243Q read with Sections 3 & 4 of the U.P. Municipalities Act. 2. The notifications under Article 243Q(2) of the Constitution of India read with Sections 3 & 4 of the U.P. Municipalities Act are the notifications, which have to be issued by none other than the Governor, in his discretionary powers.
Final Decision: The Court allowed the writ petitions and quashed the impugned notifications dated 05.04.2018.
Sudhanshu Dhulia, J.
1. 73rd and 74th constitutional amendments have brought the Panchayats in Part IX and Municipalities in Part IXA of the Constitution of India. Both these institutions establish local self governments at the rural and urban areas, respectively. Local self governments which function in rural areas are known as “Panchayats”, which have a three-tier system, at Village, Block and District level, known as Gram Panchayats, Kshetriya Panchayats and Zila Parishad respectively. Similarly for urban areas again there is again a three-tier system, each for a “transitional area”, “smaller urban area”, and “a larger urban area”. Their nomenclature in Uttarakhand is “Nagar Panchayat”, “Nagar Palika” and “Nagar Nigam”, respectively.
2. In its usual course, over a period of time, a rural area may turn into a transitional urban area, which again over a period of time may become a smaller urban area and ultimately a larger urban area. This is the normal trajectory, a development or growth achieved over a period of time. At times though, “urbanity”, like greatness, is also thrust upon.
3. It is this thrusting of urbanization, or more precisely the thrusting of urban institutions over an unwilling and overwhelmingly rural population, that has become the cause for filing of the above writ petitions, before this Court. In these cases what is under challenge is a declaration of rural self governing institutions like “gram panchayat” to an urban local body, by converting it into a “Nagar Panchayat”. In some cases, conversion of Nagar Palika to Nagar Nigam i.e. in smaller urban area institution to large urban area body is done by inclusion of adjoining rural areas. All this is being challenged at the hands of the petitioners.
4. The conversion of these institutions, from smaller to bigger ones is not without its effects. First and foremost, it brings to a premature end the term of many local self governing bodies, which will now merge in one big local body, such as gram panchayat into a municipality. It also exposes the population of rural areas to fresh taxes and duties. The change also results in a change in the land use of the place. There are other collateral effects as well. For this reason, the law mandates that a “hearing” to the affected persons is necessary before bringing this change. But more importantly, who will ultimately take the decision in bringing this changeover, is also an extremely important aspect.
5. In all these connected writ petitions before this Court, the issue which has been raised is common, hence all these petitions are being heard and decided together. In most of the petitions, barring Writ Petition (M/S) No. 1047 of 2018 and Writ Petition (M/S) No. 1101 of 2018, even counter affidavits have not been called for as the learned Advocate General principally adopts the stand in all these petitions, as taken by the State in above two petitions. Moreover, what is being examined in any case is purely a legal issue. Hence with the consent of all the parties, the matter is being decided together. Having said this, for the records, since counter affidavit has been received in two of the petitions, i.e. Writ Petition (M/S) No. 1047 of 2018 and Writ Petition (M/S) No. 1101 of 2018, therefore while facts are being referred it shall be with reference to these two writ petitions.
6. In many of the writ petitions, either members of “Gram Sabha” or erstwhile “Gram Pradhan” of such “Gram Sabha” are before this Court. The challenge is based on the grounds that this exercise undertaken by the State executive is in violation of the Constitutional provisions, as well as in violation of the State statute.
7. This is the second round of litigation. In the first round of litigation, the petitioners and similarly situated persons had challenged the earlier notification, whereby a rural area was to be converted into an urban area*. The only point canvassed before this Court in the first round of litigation was that the State
