Chetan Patidar vs State of M.P. and Others

Dipak Misra, J.

The question of law involved being similar in all these matters they were heard analogously and are disposed of by a singular order. Be it noted that in Writ Appeal No.678/2006 the defensibility and tenability of the order dated 20.7.2006 passed by the learned Single Judge in W.P. No. 4335/2006 is called in question. It is also worth noting that before the learned Single Judge the assail was to the notification published on 23.12.2005 under sub-section 2 of Section 5 of the M.P. Municipalities Act, 1961 (hereinafter referred to as ''the Act'') whereby a small urban area, Kolar, Tahsil Huzur, District Bhopal was notified whereby area of 20 villages as specified in the notification was included which formed the part of eight Gram Panchayats with the intention to constitute a Nagar Panchayat in Kolar. Tahsil Huzur, District Bhopal.

In other writ petitions the challenge is to the notification issued on 10.10.2006 by the Collector, Bhopal inviting objections and suggestions, and in pursuance of which, objections were filed. Without considering the same a notifications u/s 5(2) of the Act was issued on 10.11.2006 ascertaining the constitution of the new municipality.

The expose of facts which are imperative to be stated are that the State of Madhya Pradesh issued a notification on 23.12.2005 u/s 5 of the Act. By the said notification, small urban area, namely, Kolar, Tahsil Huzur, District Bhopal was notified and an area of 20 villages as specified in the notification was included which formed the part of eight Gram Panchayats, namely, Banjari, Akbarpur, Damkhera, Semri Kalan, Hinotia Allam, Nayapura, Bairagharh, Chichli and Inayatpur. The notification defined the local limits of the said area. After issue of said notification the appellant in W.A. No. 678/2006 assailed the same in W.P. No. 4335/2006 contending, inter alia, that he is the President of Gram Panchayat and Brijesh Gupta is the Upsarpanch who had preferred Writ Petition No. 3493/2006 and their rights are going to be jeopardized inasmuch as by virtue of issuance of notification they would be ousted from their elected office. It was contended in the writ court that before issuance of said notification for constitution of small urban areas the requisite mandate of grant of opportunity of being heard was not complied with; no objection had been invited before issuance of notification; the elected candidates had not completed the tenure of 5 years; that issue of notification runs counter to the intendment of Section 9 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for brevity 1993 Act''); that Bhopal Municipal Corporation is on the periphery of various Gram Panchayats and hence, the action taken is against the public interest.

The stand and stance taken in the writ petition were resisted to by the respondents contending, inter alia, that before issue of notification grant of opportunity of hearing was not necessary; that the Governor has the authority to specify any area as small urban area; that there is no provision in the statute for inviting objections before issue of such notification; that the principles of natural justice have no application to such process; that the action taken is in public interest inasmuch as 65% of general population is engaged in government service or business and only 35% of population is engaged in agriculture; out of 20 villages, 10 villages have residential colonies and have a character and contour of an urban area; and that section 9 of the 1993 Act does not create any impediment or obstacle for exercising the powers u/s 5 of the 1961 Act.

The learned Single Judge referred to Section 5 of 1961 Act which has been amended by Act No. 17 of 1994 with effect from 30.5.1994; that the opportunity of hearing was not necessary information of small urban area which is a legislative process; that from the grounds urged in the return it was luminescent that nature of residential area, population ratio and other relevant factors have been duly considered before issue of notification u/s 5 of the Act for constitution of small urban area; that Article 243-A of the Constitution is not attracted since there is no dissolution of Gram Panchayats by way of amendment of law but there has been constitution of small urban area for providing better amenities and facilities to the inhabitants considering the development which has taken in the area. Being of this view the learned Single Judge dismissed the writ petition.

It is pertinent to mention here that during penency of the matter a notification was issued by the Collector, Bhopal. In pursuance of the aforesaid notification objections were submitted. There were more than 1100 objections which were decided by a common order dated 8.11.2006. After the objections were dealt with a notification u/s 16 of the Act was issued on 10.11.2006 constituting a committee for transitional period.

It is contended in the writ petitions that the objections raised by number of objectors have been mechanically dealt with without application of mind and the same tantamounts to violation of mandatory requirement as contemplated u/s 5A of Municipalities Act. It is put forth that unless the objections of the affected people of twenty villages decided properly with open mind and due care, the notification is absolutely unsustainable. It is asseverated that the notification issued on various dates are violative of Sections 8. 9 and 30 of the Panchayat Raj Adhiniyam and also runs counter to Article 243-E of the Constitution of India and, therefore, they are liable to be quashed. It is also the stand in the writ petitions that notification issued constituting committee for transitional period is violative of Section 5A of the 1961 Act. It is the further stance in the petitions that invitation of the objections u/s 5A of the Act is not mere formality but has its own sanctity which has not been kept in mind while dealing with the objections since they have been really dealt with in arbitrary and mechanical manner. It is urged that the respondent No.3 had invited objection by notice dated 4.10.2006 and the last date for submitting the objections was fixed to 10.10.2006 out of which two days were holidays and thus the large population of twenty villages had only four days'' time for submitting the objections and suggestions is nothing but mere negation and denial of the opportunity as envisaged u/s 5A of the Act. It is also contended that creation of urban area in the shape of Kolar Municipal Corporation is also violative of provisions of the Delimitation Act, 2002 as the circular issued by the Assistant Chief Election Officer on 3.2.1997 contained in Annexure P-19.

A counter affidavit has been filed asserting, inter alia, that the action of the respondent is in consonance with the provisions contained under Sections 5 and 16 of the Municipalities Act, 1961 and also in accord with the 1993 Act and MP Panchayat Raj (Alteration of Limit, Disestablishment or change of Head Quarters) Rules, 1994. It is also canvassed that there has been no violation of Article 243E of the Constitution of India. It is put forth that grounds which have been urged keeping in view provisions of Section 5 of the 1961 Act are totally irrelevant and misconceived. It is the case of respondents that the State Government in exercise of power conferred u/s 5(2) of the 1961 Act had issued notification on 23.12.2005 whereby twenty villages of Kolar, Tahseel Huzur, District Bhopal were specified in the notification for constitution of small urban area and before issue of notification under the said provision the procedure was followed u/s 5(2) of the Act. The facts which have been considered before issuance of the notification u/s 5(2) of the Act have been enumerated in the return and in support of the same Annexure R-1 has been brought on record.

It is the stand in the return that the action of constitution of new municipality and re-establishment of Panchayat is in consonance with the provisions of Section 5 of the 1961 Act and 1993 Act. It is also put forth that the said action does not contravene Article 243E of the Constitution of India. It is further put forth that the constitution of new municipality does not run against the spirit of Section 30 of the 1993 which provides minimum ten constituencies in a Jila Panchayat as the said ground was raised before the Collector, Bhopal who is the competent authority u/s 126 of the 1993 Act and the said authority while deciding the said objection has specifically concluded that Ward No.5 which is going to be affected by constitution of 13 new Gram Panchayats and out of said 13 Gram Panchayats 8 Gram Panchayats have been included in the new Municipality and the said Ward No.5 will remain in existence with five Gram Panchayats and hence, there is no violation of Section 30 of the 1993 Act. With regard to weightage on public exchequer it is urged that the Legislature in its wisdom has found justified to constitute new Municipality and hence, the reasons are cogent and germane. With regard to dealing with the objections it is submitted that the Collector had considered the objections raised and has passed a common order and it does not necessarily mean that the said authority has not applied its mind. The petitioners have been given adequate opportunity to raise objections and the number of objections clearly exposited that proper opportunity was granted.

An additional reply has been filed by the respondents whereby it has been pleaded that there has been no violation of directions of delimitation commission constituted in compliance with the provisions of Delimitation Act, 2002. The delimitation commission by letters dated 19.8.2002 and 23.1.2004 passed the directions that the existing administrative boundaries shall remain unaltered at the time of issuance of notification u/s 9(2) of the said Act. It is further put forth that the guidelines issued by the Commission do not have statutory force and further the State Government has taken a decision in its legislative competence. It is the stance in the additional reply the delimitation commission by notification dated 19.1.2007 published in MP Rajpatra has allocated seven assembly seats for Bhopal district and Kolar Municipality consisting of eight gram panchayats is placed in Huzur Assembly constituency which clearly indicates that delimitation commission has impliedly granted approval of the constitution of Kolar Municipality and thus the notification for constitution of new municipality does not suffer from any illegality for infirmity.

We have heard Mr. Rajendra Tiwari, Mr. R.L. Gupta, Mr. Mohd. Ali and Mr. V.K. Shukla, learned counsel for the writ petitioners and the appellants in the writ appeal and Mr. R.N. Singh, learned Advocate General along with Mr. Deepak Awasthy for the respondents.

Learned counsel for the petitioners and appellants have raised the following contentions:

(a) The notification issued by the State Government on 23.12.2005 violates Article 243Q of the Constitution of India inasmuch as the Nagar Panchayat has to be constituted first before a small urban area is conceived of.

(b) The Governor has been conferred a specific role to specify with regard to population of the area, density of population of the area, revenue of the local area, percentage of employment and such other factors which deemed fit before the notification is issued in respect of small urban area but in the instant case the notification issued does not indicate that the Governor had taken into consideration the aforesaid factors as a consequences of which there transgression of the constitutional provisions.

(c) There has been violation of Article 243E of the Constitution inasmuch as by the notification for small urban area the duration of panchayat has been curtailed. Incrementing the aforesaid submission it is submitted by them Article 243E (2) clearly mandates no amendment of any law for the time being in force shall have the effect causing dissolution of Panchayat at any level, which is functioning immediately before such amendment till the expiration of its duration specified in clause (1) of the said Article.

(d) The notification clearly contravenes the provisions contained in Section 5 and 5A of the 1961 Act.

(e) The notification issued u/s 16(1) of the Act is not justified as there could not have been creation of small urban area.

(f) Notifications issued are arbitrary, unjust, unlawful, irrational and have come into existence in mechanical manner with an ulterior motive inasmuch as the objects have not been considered by the competent authority.

(g) The authority while issuing notification has not considered the provisions of the Delimitation Act which makes the same vulnerable in law.

(h) By virtue of the notification the duration of the Panchayat got curtailed which violates Section 9 of the 1993 Act.

(i) Proviso to Section 30 of the Act clearly lays a postulate that where the population of a district is less than five lakhs it shall be divided into not less than ten constituencies and by taking away eight gram panchayat there has been reduction of gram panchayat which violates Section 30 of the 1993 Act.

Mr. R.N. Singh, learned Advocate General for the State resisting ie aforesaid submissions proponed as follows:

(i) The stand that it was incumbent to constitute a Nagar Panchayat before notifying the area in question as a municipal area or smaller urban area inasmuch as that is the mandatory requirement prescribed under Article 243Q(1) of the Constitution of India is totally unacceptable.

(ii) On appreciation of employment of language in Clause (2) of Article 243Q it is clearly evincible that on certain conditions precedent being satisfied the Governor has the jurisdiction to specify the nature of area by a public notification and it is not the requirement that there should be a sequential laddering from transitional area to municipal area and from municipal area to municipal corporation,

(iii) Section 5 of the 1961 Act substituted by M.P. Act No. 17 of 1994 clearly makes a demarcation between the municipal council and a Nagar Panchayat depending upon circumstances and the said provision is not to be read to mean that there has to be a Nagar Panchayat first whereafter a municipal council for a small urban area will come into existence.

(iv) The submission that the first proviso to Section 30 of the 1993 Act has been violated by reduction of the number of constituencies from 10 by issue of a notification under Annexure-P/1 is unacceptable inasmuch as after taking out of 20 villages included in 8 gram panchayats more than 10 constituencies do remain in the constituency which does not offend the provision contained in Section 30 of the aforesaid Act.

(v) The stance that there has been violation of Article 243E of the Constitution and Section 5 of the 1993 Act are totally unacceptable as the said provisions do not have any applicability to the case at hand.

(vi) The ground that there has been curtailment of tenure of the elected candidates does not merit any consideration as a conscious decision has been taken in issuing the notification under Annexure-P/1 and subsequent notifications as envisaged in law and further there has been no dissolution of the Gram Panchayat.

(vii) The principles of natural justice are not applicable inasmuch as issue of a notification is fundamentally a legislative process.

(viii) The requirement of law if any, is to receive objections and suggestions and take an objective decision on the same and as that has been done the requirement under the constitutional scheme as well as the statutory scheme has been met with.

To appreciate the rivalised submissions raised at the Bar, it is apposite to refer to Article 243Q of the Constitution of India. It reads as under: "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 many 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.

In Saij Gram Panchayat Vs. The State of Gujarat and Others, the Apex Court while dealing with the connotative expanse of clause (1) of Article 243Q has expressed the view as under:

It is next contended that the proviso to CI.(1) of Art. 243Q applies only to urban areas. It does not apply to a transitional area. Since the industrial areas in question have been subsequently notified as transitional areas they cannot be equated with industrial townships. This contention also cannot be accepted. Article 243-Q deals with Constitution of Municipalities. Municipality is defined under Art. 243-P(e) to mean "an institution of self-Government constituted under Art. 243-Q. Article 243-Q constitutes three types of Municipalities - (a) a Nagar Panchayat (b) a Municipal Council and (c) a Municipal Corporation. The proviso to Art. 243-Q deals with all three types of Municipalities constituted under C1. (1). It provides that a Municipality under C1. (1) may not be constituted in certain circumstances. This would refer to any of the three types of Municipalities. Although the proviso refers to such urban area or part thereof, this "urban" area also covers a transitional area, in transition from rural to urban. It is because this area is also in the process of turning into an urban area that it is put under Part IXA which deals with Municipalities in urban areas. Therefore, in respect of any of these three types of areas set out in C1. (1) of Art. 243-Q, having regard to the size of the area, the Municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as the Governor will deem fit to consider, he may, by public notification specify such area to be an industrial township. All these relevant factors would be in operation in an industrial area already notified many years back under an Industrial Development Corporation Act as in the present case. Therefore, there is no breach of Art. 243-Q if such an area is, under the provisions of an Industrial Development Act, equated with an industrial township under Art. 243-Q.

In the background of the constitutional scheme what we perceive is that Article 243P(d) defines ''municipal area'' to mean the territorial area of a municipality as is notified by the Governor. Article 243P(e) defines ''municipality'' to mean an institution of self-government constituted under Article 243Q. It is worth noting that in Cantonment Board, Secunderabad Vs. G. Venketram Reddy and Others, it has been held that municipality covers a municipal corporation. An area which is rural at the time of coming into force of the provision of Chapter IX of the Constitution can be considered as transitional area which is called a Nagar Panchayat or in whatever name it may be described. If clause (2) of Article 243Q is properly understood it does convey that the governor on being satisfied in respect of certain conditions precedent can declare an area as ''transitional area'', ''smaller urban area'' or ''larger urban area''. The power has been vested with the Governor. It is worth noting that proviso to clause (1) stipulates that a municipality under clause (1) may not be constituted in certain circumstances. Thus, there is no rationale that a rural area first has to be notified as a transitional area and thereafter as a municipal council for a smaller urban area. An area in transition from a rural area to an urban area 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, but, a fertile and significant one, that does not necessarily mean the constitutional provisions cast a mandate on the Governor first to constitute a Nagar Panchayat for a transitional area and then to proceed to constitute or convert it as a municipal council. We are disposed to think, the Governor has the authority, depending upon relevant factors, to covert a rural area to a smaller urban area and not to follow the sequence as urged by Mr. Rajendra Tiwari, learned Senior Counsel for the petitioner.

The next aspect that requires to be dealt with is whether the principles of natural justice are applicable to a case of this nature and if so whether that have been met with. In this regard the learned counsel for the appellant has placed reliance on Baldev Singh and Others Vs. State of Himachal Pradesh and Others, wherein it has been held that inclusion of an area governed by a Gram Panchayat within a notified area would certainly involve civil consequences and hence, in such circumstances, it is necessary that people who are affected by change should be given an opportunity of being heard otherwise they would be visited with serious consequence for loss of office, an incident of taxation and other factors. It is worth noting that though the H.P. Municipal Act did not provide for grant of an opportunity of being heard their Lordships expressed the aforesaid view holding that denial of such an opportunity would not be in consonance and accord with the scheme of rule of law governing the society. The learned counsel for the appellant and the petitioner also commended us to the decision rendered in State of U.P. and others etc. Vs. Pradhan Sangh Kshettra Samiti and others etc., wherein the Apex Court has expressed the opinion that while dealing with Panchayat areas and Gram Sabha under the U.P. Panchayat Raj Act, 1977 was considered that an opportunity of being heard should be given to the people of the area concerned. Mr. R.N.Singh, learned Advocate General for the State has commended us to the decision rendered in State of Punjab Vs. Tehal Singh and Others, wherein it has been held as under:

The State Government is not required to give an opportunity of hearing to the residents of the area excluded from Gram Sabha, Khanpur before issuing notifications under Ss. 3 and 4 of Act, respectively declaring territorial area of Gram Sabha, Khanpur and establishing Gram Sabha, Khanpur. The power exercisable under Sections 3 and 4 of the Act respectively by the Government is not an exercise of a judicial or quasi-judicial function where the very nature of function involves the principles of natural justice or in any case of an administrative function effecting the rights of an individual. On making a declaration u/s 3 of the Act determining the territorial area of a Gram Sabha and thereafter establishing a Gram Sabha for that area is an act legislative in character in the context of the provisions of the Act. Once it is found that the power exercisable under Sections 3 and 4 of the Act respectively is legislative in character, no questions of application of rule of natural justice arises. However, in case of subordinate legislation, the legislature may provide for observance of principles of natural justice or provide for hearing to the residents of the area before making any declaration in regard to the territorial area of a Gram Sabha and also before establishing a Gram Sabha for that area. We have come across many enactments where an opportunity of hearing has been provided for before any area is excluded from one Gram Sabha and included in different Gram Sabhas or a local authority. However, it depends upon the legislative wisdom and the provisions of an enactment. Where the legislature has provided for giving an opportunity of hearing before excluding an area from a Gram Sabha and including it in another local authority or body, an opportunity of hearing is sine qua non and failure to give such an opportunity of hearing to the residents would render the declaration invalid. But where the legislature in its wisdom has not chosen to provide for any opportunity of hearing or observance of principles of natural justice before issue of a declaration either u/s 3 or Section 4 of the Act, the residents of the area cannot insist for giving an opportunity of hearing before the area where they are residing is included in another Gram Sabha or local authority.

(quoted from the placitum)

At this juncture we may note with profit that clause (2) of Article 243Q stipulates that the Governor shall specify by public notification about the area in question 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. In the return it has been asseverated that while considering the issue of notification u/s 5(2) of the Act the following factors have been taken into consideration :

(i) Smaller Urban Area specified in the notification dtd. 23.12.2005 includes 20 villages of Kolar, Taheseel Huzur Distt. Bhopal having total area of 4981.61 hectares (19.8161 Kilometers.)

(ii) The total population as per census of 2001 was 28,378 and at the time of issuance of notification u/s 5(2) of the Act the total population has increased to 88,447. Similarly, the density of population as per census of 2001 was 570 people per square kilometer which has increased to 755 people per square kilometer.

(iii) 65% of the total population is engaged in non-agricultural activities meaning thereby that either they are in service or doing some business and only 35% of the population is engaged in agricultural and related activities.

(iv) That out of 20 villages, 10 villages namely, Banjari, Akbarpura, Damkheda, Semrikala, Hinotiya Alam, Nayapura, Bairagarh Chichli, Gehunkheda and Sunkhedi are having residential colonies and has acquired the nature of urban area. The document showing the above mentioned position is filed herewith as Annexure-R-1.

(v) That there is ample scope for generation of revenue from these villages as mentioned above 10 out of 20 villages are having residential colonies and had the scope to generate revenue by way of taxes. It is further relevant here to mention that looking to the nearness to the State capital there is ample scope for economic development of this area as an independent unit/local area.

It is revealable that in the case at hand a notification was issued inviting objections and more than 1100 objections were received. Submission of Mr. Tiwari is that the objections have not properly considered. There is also submission that the conditions precedent as prescribed under Article 243Q and Section 5(2) have not been complied with. To appreciate the said submission this Court requisitioned the file dealing with the issue of notification contained in Annexure P-1. We have bestowed our anxious consideration and carefully perused the file and noting therein. The Collector, Bhopal had issued a proposal to the Divisional Commissioner after naming twenty villages. The proposal reads as under:

(2) Total area of the proposed 20 Revenue Villages in 4981.61 Hectares.

(3) According to the census of the year 2001 the population of the proposed area is 28.375 and presently the expected population is said to be 88,447.

(4) According to the census of the year 2001 density of population in the proposed municipal area is 575 persons per square kilometer and on the basis of expected population presently this density is said to be 1775 persons per kilometer.

(5) 65% people of the proposed area are engaged in the activities other than the agricultural activities.

(6) More than 50 developed colonies exist in the proposed municipal area and the total earnings from Light Tax, Water Tax, Property Tax and other miscellaneous taxes of the areas of gram Panchayats to be included in the municipal area is said to be Rs. 13,99,744.

(7) The proposed municipal are is densely populated residential are, wherein there are schools, Anganwadi Centres, Gram Panchayat Offices, Private Nurshing Homes etc. under different gram Panchayats.

Thereafter the Joint Director had given a synopsis and the matter travelled to the higher authorities. A decision was taken and a notification was issued as per Annexure P-1. Thereafter, as has been indicated above, objections were called for. Objections have been made by various categories individuals and committees. Some of the representations show that they wanted to be included in the Bhopal Municipal Corporation. Such representations have been filed by Bima Kunj Niwasi Kalyan Samiti, Bhopal, MP Class III Government Employees Association, Bhopal, Park Avenue House Owner Association and others. The main aspects of the objects were that it would affect the candidates who have been elected in the year 2005 election; that the constituencies for the purpose of Jila Panchayat would become less than ten which is violative of statutory provisions; that the Central Government has given grant for development of panchayats and by conversion to small urban area the interest of the panchayats would be affected; that the matter was sub-judice in a public interest litigation before this Court; it would be difficult for the people to get the ration cards; that the benefits issued by the Central Government would be totally nullified; that out of 13 panchayats eight would be included in the municipal area as a result of which the interest of five panchayats would be affected; that pipelines which are in existence at Kolar would be affected; that various schemes floated by the State Government would be taken away; that the price of articles would increase and day to day life would be affected; and that the people who are existing in eight panchayats are poor and would not be able to meet the tax component imposed by municipality and other objections are also almost of this nature. On a perusal of the decision it is perceptible that the competent authority has bifurcated number of persons and the objections and has dealt with them by ascribing reasons that inclusion of panchayats would not affect the interest of the public; that there is no possibility of any hike in the prices of items; that the interest of the incumbents would be intact and they would be allowed to continue for five years; that there would be improvement of the area when it would become a small urban area; that Kolar pipe line will be maintained as such, as a consequence of which the people of the area will not face any difficulty; that all Government schemes would be made available to them. Thus, we are disposed to think that the objections have been appositely and appropriately dealt with and we find that the conditions precedent prescribed under Article 243Q and Section 5(2) of the 1961 Act are satisfied. We may proceed to state, once objections are invited and people of the localities have been heard, principles of natural justice are met with.

The next aspect which requires to be dealt with is whether the provisions of 1993 Act have been violated. Section 30 deals with division of districts into constituencies. Sub-section (1) of Section 30 is relevant for the present purpose. It reads as under:

Division of District into constituencies - (1) Subject to the provisions contained of sub-section (2), the State Government shall by notification divide a district into such number of constituencies that each constituency shall have as far as practicable, a population of fifty thousand and every constituency shall be a single member constituency:

Provided that where the population of a District is less than five lacs, it shall be divided into not less than ten constituencies and the population of each constituency shall as far as practicable, be the same in each constituency:

Provided further that the total number of constituencies shall not exceed thirty five.

Submission of the learned counsel for the petitioner is that after inclusion of twenty constituencies into small urban area, the number of constituencies is reduced to less than ten. It is submitted by Mr. R.N. Singh that as per 1993 Act Bhopal Jila Panchayat has to consist ten Gram Panchayats. It is put forth by him that exclusion of twenty Gram Panchayats does not make it less than ten constituencies inasmuch as only eight Gram panchayats have been excluded and five remained intact. Submission of Mr. Singh is that exclusion of eight Gram Panchayat from total 25 wards of Janpad Panchayat Funda, only three wards would be affected and hence, in the Janpad Panchayat there would be no requirement of fresh election. That apart, after exclusion of eight Gram Panchayats from 92 Gram Panchayats of Janpad Panchayat Funda remaining Gram Panchayats would remain in existence and hence, there would be no need for Panchayat elections afer conversion into small urban area.

In view of the aforesaid we are of the considered opinion that there is no violation of Section 30 of the 1993 Act.

The next aspect that arises for consideration is the term of elected persons. The learned counsel for the petitioners have assailed the notification on the ground it violates Article 243E of the Constitution of India. The said Article reads as under:

243E. Duration of Panchayats etc. - (1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date of appointed for its first meeting and no longer.

(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediate before such amendment, till the expiration of its duration specified in clause (1).

(3) An election to constitute a Panchayat 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 Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period.

(4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under Clause (1) had it not been so dissolved.

On a careful reading of the aforesaid provision it is clear as day that the said provision does not in any way render assistance to the appellants and writ petitioners as we are inclined to think the same does not apply to the case at hand.

The next spectrum which requires to be dealt with is with regard to delimitation. On a perusal of the grounds urged and return filed, we are of the considered opinion that the said provision has nothing to do with the notification issued from time to time.

Resultantly, the writ petitions and writ appeal, being devoid of substratum, stand dismissed. There shall be no order as to costs.