Ramesh Thakur & Ors vs State Of H.P. & Ors

Tarlok Singh Chauhan, J

The petitioners are permanent residents of Gram Panchayats Sirinagar and Kawarag and aggrieved by the action of the respondents, whereby their

area, which earlier formed part of the Gram Panchayats have now been included in Nagar Panchayat, have filed the instant petition for grant of the

following substantive reliefs:

(i). by issuing writ of certiorari, by quashing the notification No. UDÂA(1)Â5/2015 dated 28.10.2020 (Annexure PÂ2) whereby the area was notified

to be Nagar Panchayat Kandaghat by the respondents.

(ii). by issuing writ of certiorari, by quashing the further proceedings initiated by the respondents including creation of new wards and delimitation of

the wards etc. on the basis of notification No. UDÂ​A(1)Â​ 5/2015 dated 28.10.2020 (Annexure PÂ​2).

(iii). by issuing writ of certiorari, by quashing the notification No. UDÂA(1)Â5/2015 dated 24.9.2020 (Annexure PÂ1), whereby the area was

proposed to be notified as municipal area.

(iv). by issuing writ of mandamus, directing the respondents not to conduct elections of Nagar Panchayat Kandaghat on the basis of Notification No.

UDÂ​A(1)Â​5/2015 dated 28.10.2020 (Annexure PÂ​2).

(v). by issuing writ of certiorari, by quashing the amended Section 4 of H.P. Municipal Act, 1994, amended by way of Amendment Bill No. 13 of 2020

(Annexure PXÂ​4) whereby curtailing the period from 6 weeks to 2 weeks in Section 4 of Himachal Pradesh Municipal Act, 1994.

It is averred that the proposal for declaration of the local area of Gram Panchayat Kandaghat as Municipal area, Kandaghat, was notified and

objections and suggestions from the inhabitants, likely to be affected, were invited by the respondents vide notification dated 24.9.2020. Thereafter, the

Gram Panchayats Sirinagar and Kwarag filed objections vide resolutions dated 31.8.2020 and 1.9.2020 respectively before the Deputy Commissioner

Solan, objecting therein declaration of area in question as Nagar Panchayat, Kandaghat on the ground that the local inhabitants have agricultural land

in the area in question, over which they have been carrying on agricultural pursuits to earn their livelihood. The Deputy Commissioner, Solan, referred

the objections to Director, Urban Development. Various meetings were also held in separate wards of Gram Panchayat Srinagar and the inhabitants

opposed the action of the respondents. Similar objections filed by the Gram Panchayat Srinagar were also assigned by the Deputy Commissioner,

Solan, to SDM, Kandaghat to be sent to State Government. However, vide notification dated 28.10.2020, the State Government under subÂSection 6

of Section 4 of the Himachal Pradesh Municipal Act, 1994 (for short, the Act) declared the Gram Panchayat Srinagar, Sub Mohal Srinagar and Sub

Mohal Dolag to be Nagar Panchayat known as Nagar Panchayat Kandaghat. It is further averred that the respondents have failed to comply with the

provisions of Section 3(1) and 4(4) of the Act and entire exercise undertaken by the respondents is liable to be set aside.

Lastly, it is averred that by reducing the period for filing objections from 6 weeks to 2 weeks by carrying out amendment in the Act, the respondents

have illegally defeated valuable right of the petitioners and, therefore, also entire action of the respondents in declaring Nagar Panchayat deserves to

be quashed and set aside.

Even though the respondents have not filed their reply, but necessary instructions in this behalf have been placed on record by the learned Advocate

General, a perusal whereof reveal that the objections were received from the petitioners along with other representations from the concerned villagers

and it was only after considering the same that the amended proposal was sent by the SDO (C) Kandaghat to Deputy Commissioner, Solan, vide letter

dated 23.10.2020, in which the agricultural portion in 87 kittas measuring 04Â95Â51 hectares was proposed to be excluded from Up Mohal Sirinagar.

Since this land was traditionally irrigated through Kuhal, therefore, keeping in view the situation of the area, two patches mentioned in the main

proposal were excluded and in Up Mohal Dolag, the land comprised in 46 Kitta measuring 01Â06Â69 hectares adjoining agricultural land was

proposed to be excluded on the demand of local people along with petitioners. The amended proposal was sent to the government in the shape of area

100Â​16Â​26 hectares in Kitta 1443. After considering all the objections/suggestions of the inhabitants of Gram Panchayats Sirinagar and Kawarag and

after excluding the agricultural land mentioned (supra), Department of Urban Development issued notification dated 28.10.2020. It is further stated

that the area notified as Nagar Panchayat is in the shape of Town and has to be developed in urbanized manner and the same cannot be done by the

Gram Panchayat.

We have heard learned counsel for the parties and have also gone through the material placed on record.

In a constitutional scheme, there is no absolute separation of power. Apart from the various governmental functions, the executive is always

entrusted with several functions, which are legislative in nature. The distinction between legislative and administrative function is thin and often

overlapping.

In De Smith's Judicial Review of Administrative Action†(Fifth Edition) with regard to difference between legislative and administrative acts,

following observations have been made:

“A distinction often made between legislative and administrative act is that between the general and the particular. A legislative act is the creation

and promulgation of a general rule of conduct without reference to particular cases and administrative act cannot be exactly defined, but it includes the

adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the

requirements of policy of expediency or administrative practice. Legal consequences flow from this distinction.â€​

8 Such distinction has been meticulously culled out by the Hon'ble Supreme Court in Bombay Dyeing & MFG. Co. Ltd. (3) vs. Bombay Environmental

Action Group & ors., (2006) 3 SCC 434, wherein it was observed as under:Â​

A matter involving environmental challenges may have to be considered by a superior court depending upon the fact as to whether the impugned

action is a legislative action or an executive action. In case of an executive action, the court can look into and consider several factors, namely,

(i) Whether the discretion conferred upon the statutory authority had been property exercised;

(ii) Whether exercise of such discretion is in consonance with the provisions of the Act;

(iii) Whether while taking such action, the executive government had taken into consideration the purport and object of the Act;

(iv) Whether the same subserved other relevant factors which would affect the public in large;

(v) Whether the principles of sustainable development which have become part of our constitutional law have been taken into consideration; and

(vi) Whether in arriving at such a decision, both substantive due process and procedural due process had been complied with.

It would, however, unless an appropriate case is made out, be difficult to apply the aforementioned principles in the case of a legislative act. It is

no doubt true that Articles 14, 21, 48ÂA of the Constitution of India must be applied both in relation to an executive action as also in relation to a

legislation, however, although the facet of reasonableness is a constitutional principle and adherence thereto being a constitutional duty may apply, the

degree and the extent to which such application would be made indisputably would be different. Judicial review of administrative action and judicial

review of legislation stand on a different footing. What is permissible for the court in case of judicial review of administrative action may not be

permissible while exercising the power of judicial review of legislation. It may, however, be a different thing to contend that the legislation had been

enacted without constitutional principles in mind. The real question is whether the constitutional mandates had been complied with in making such

legislation.

Judicial review of administrative action and judicial review of legislation stand on a different footing. What is permissible for the Court in case of

judicial review of administrative action may not be permissible while exercising the power of judicial review of legislation.

10.Insofar as this Court is concerned, it is no longer res integra and rather has been authoritatively laid down by this Court that declaration of

Municipalities is a legislative function, which is undertaken by the Government in a larger public interest and ordinarily Courts are loath to interfere

with such decision(s); until and unless judicial conscious of the Court is satisfied that the decision so taken is not in public interest, but has been taken

with ulterior or oblique motive at the behest of some interested person or persons who personally stand to gain by the declaration of such Municipality.

Apart from above, similar reiteration of law can also be found in a very recent judgments rendered by this Court in CWP No. 3895/2020, titled as

Vijay Kumar & ors. vs. State of H.P. & ors., along with connected matters, dated 23.12.2020 and CWP No. 5451/2020, titled as Lalit Singh vs. State

of H.P. & ors., decided on 30.12.2020.

A bare perusal of the writ petition, more particularly, grounds raised therein, would go to indicate that entire petition proceeds on the premise as if

the impugned act of notifying the Nagar Panchayat in question by the State Government was an administrative act, whereas as observed above, this is

a legislative act. Therefore, in this background, scope of interference, in exercise of power of judicial review, by this Court, is extremely limited.

Now, adverting to the plea of the petitioners regarding amendment being illegal, whereby time for filing objections has been curtailed.

We really do not find any merit in this contention as it is more than settled that elections to Panchayati Raj Institutions have to be held in a time

bound manner and since the node to conduct the elections was received late by the State Government from Central Government on account of

assessment of COVIDÂ19 pandemic situation, therefore, in these circumstances, the respondents were well within their right to have curtailed period

of filing objections from 6 weeks to 2 weeks.

As a last ditch effort, learned counsel for the petitioners, after placing strong reliance on judgment of the Hon'ble Supreme Court in Baldev Singh

and Ors. Vs. State of Himachal Pradesh, (1987) 2 SCC 510 ,would contend that the residents of the affected areas should have been afforded an

opportunity of hearing before issuing the impugned notification.

We find no merit in this contention as the Hon'ble Supreme Court in Baldev Singh's case (supra) has held that affording of hearing to affected

persons is essential prerequisite for constituting notified area, however, hearing contemplated is not required to be oral and can be by inviting

objections and disposing them of in a fair way as is the fact situation obtaining in the instant case.

In addition to aforesaid, declaration of municipal area, in terms of Section 4 of the Act, is essentially a policy matter, which is within the exclusive

discretion, domain and jurisdiction of the State and the Courts are loath to interfere in such policy decision of the Government which is taken on

consideration of myriads of inputs and merely because the petitioner may lose his clout, he cannot invite the Court to interfere in such matters; except

on limited ground if the decision is found to be against the statute(s) or constitution.

The petitioners have not been able to demonstrate or prove that declaration of area, subject matter of the writ petition, into a Nagar Panchayat is

either not in public interest or this decision has not been taken by the Government in larger interest of inhabitants of the area, but the same has been

taken by the State Government to help a few individuals or the declaration has not been done in accordance with constitutional requirement coupled

with statutory requirements of the Act.

In view of aforesaid discussions, we find no merit in the instant petition and the same is accordingly dismissed, so also the pending application(s), if

any, leaving the parties to bear their own costs.