Rattan Lal & Ors vs State Of H.P. & Ors

Tarlok Singh Chauhan, J

The instant petition has been filed for grant of following substantive reliefs:

i) that a writ in the nature of certiorari may kindly be issued to quash the notifications dated 24.8.2020 and 28.10.2020 issued by respondent No.1,

thereby ordering to exclude the Khasra numbers of the petitioners comprised in Khasra numbers 1327, 1331, 1332, 1334, 1335, 1372, 1373, 1374, 1375,

1376, 1377, 1378, 1379, 1380 and 1382 i.e. total 15 khasra numbers of Muhal Basal, Tehsil and District Solan, H.P. from its inclusion in Municipal

Corporation, Solan, District Solan, H.P. and justice be done.

ii) that a writ in the nature of mandamus may kindly be issued directing respondent No.1 to issue notification to exclude the area of the petitioners

comprised in Khasra numbers 1327, 1331, 1332, 1334, 1335, 1372, 1373, 1374, 1375, 1376, 1377, 1378, 1379, 1380 and 1382 i.e. total 15 khasra

numbers of Muhal Basal, Tehsil and District Solan, H.P. from its inclusion in Municipal Corporation, Solan, District Solan, H.P. and justice be done.

On 8.9.2020, the Deputy Commissioner, Solan, constituted a committee headed by the Additional Deputy Commissioner, Solan, to scrutinize the

areas to be included in Municipal Council, Solan, for its up gradation in light of the objections raised by Gramin Sangharash Samiti.

The Deputy Commissioner, Solan, vide letter No. Acctts (LFA) VIIIÂ2/2026/ÂM. Corp.ÂIÂ9978 dated 27.5.2020 submitted justifications to the

Director, Urban Development for including eight Gram Panchayats viz. Seri, Basal, Salogra, Parag, Shamti, Saproon, Anji and Kothon, in the existing

area of M.C. Solan. The government thereafter vide notification dated 24.8.2020 proposed to include the areas as specified in the letter dated

27.5.2020 and also called for the objections/suggestions from the general public.

On 21.9.2020, residents of Basal area preferred objections stating therein that most of their land in Mauza Basal is fertile, over which they have

been carrying on agricultural pursuits to earn their livelihood. On 1.10.2020, residents of area Basal again preferred objections reiterating their earlier

stand and requested for exclusion of their area from the Municipal Council limits of Solan.

After receipt of objections, the Additional Deputy Commissioner, Solan, on 12.10.2020, was assigned task to look into the objections preferred by

the residents of Basal area and Gramin Sanghrash Samiti. According to the petitioners, the respondents without taking into consideration the aforesaid

objections issued final notification dated 28.10.2020 to upgrade Municipal Council, Solan into Municipal Corporation, Solan. The petitioners again

preferred objections/representation to exclude their Khasra numbers from the limits of Municipal Corporation, Solan vide representation dated

9.11.2020, which was followed by reminder dated 27.11.2020, however the same has not been decided till date constraining the petitioners to file the

instant petition.

Even though no formal reply has been filed on behalf of the respondents, however, in the instructions so supplied to the Court, it has been stated as

under:Â​

That the inclusion of Panchayats in Municipal Council will not affect the activities of rural area as is feared by the villagers. The villagers are free to

continue with the farming activities etc., which they are doing before inclusion in municipal area.

That the Tehsildar, Solan, along with entire revenue field staff has personally visited the areas, as directed by the Committee which was formed by the

Deputy Commission, which were proposed to be included in the Municipal Corporation Solan. On visit it was found that certaina area of Gram

Panchayat Basal (two which the petitioner Sh. Rattan Lal belongs) was already touching the boundaries of Municipal Council Solan. Further, this

Panchayat mostly consists of urbanized area, including HIMUDA colony.

That the population of Municipal Council Solan was 39256 persons as per 2011 census with an estimated increase of about twenty thousand persons

till date. It is submitted that an amendment in section 3 of the Himachal Pradesh Municipal Corporation Act, 1994 has been done. As per amended

section now words 'forty thousand' have been substituted in place of 'fifty thousand' as number of population for considering any Municipality to be

declared as a Corporation. Further, total annual income of Municipal Council Solan was already exceeding Rupees two crore. Hence, the contention

of the petitioners that their Panchayat has been included in Municipal Council Solan just to fulfil the population and income criteria area altogether

wrong.

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€​

In Jayanti Lal Amrit Lal Sodhan vs. F. M. Rana, AIR 1964 SC 64,8 the Hon'ble Supreme Court laid down that executive, apart from purely

administrative function, is also entrusted under various Statutes functions, which are legislative and judicial in character. It shall be apposite to

reproduce relevant observations as contained in para 11, which read as under:Â​

It cannot however be assumed that the legislative functions are exclusively performed by the legislative executive functions by the executive and

judicial functions by the judiciary alone. The Constitution has not made an absolute or rigid division of functions between the three agencies of the

State. To the executive, exercise of functions legislative and Judicial are often entrusted. For instance power to frame rules, regulations and

notifications which are essentially legislative in character is frequently entrusted to the executive. Similarly judicial authority is also entrusted by

legislation to the executive authority : Harinagar Sugar Mills Ltd. v. Shyamsundar, (1962) 2 SCR 339 : AIR 1961 SC 166.9 In the performance of the

executive functions, public authorities issue orders which are not far removed from legislation and make decisions affecting the persona] and

proprietary rights of individuals which are quasiÂ​Judicial in character. In addition to these quasiÂ​judicial, and quasiÂ​legislative functions, the executive

has also been empowered by statute to exercise functions which are legislative and judicial in character, and in certain instances, powers are

exercised which appear to partake at the same moment of legislative, executive and judicial characteristics. In the complexity of problems which are

modern Government have to face and the plethora of Parliamentary business to which it inevitably leads, it becomes necessary that the executive

should often exercise powers of subordinate legislation ; Halsbury's Laws of England Vol. 7, Article 409. It is indeed possible to characterise with

precision that an agency of the State is executive, legislative or judicial, but it cannot be predicated that a particular function exercised by any

individual agency is necessarily of the character which the agency bears.

11 .In Tulsipur Sugar Company Limited v. Notified Area Committee, Tulsipur, AIR 1980 SC 882, the Hon'ble Supreme Court, while dealing with

Section 3 of U. P. Town Area Act, 1914, held, after considering the nature and the power exercised by the State Government under Section 3, that

the said power was legislative in character.

The constitution of Municipalities is provided under Article 243Q of the Constitution of India, which reads as under:Â​

“243Q. Constitution of Municipalities.Â​ (1) There shall be constituted in every State,Â​

(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 may not be constituted in such urban area or part thereof as the Governor may, having regard to the size

of tile 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.

Section 3 of the Himachal Pradesh Municipal Corporation Act, 1994, (for short, the Act) provides for declaration of municipal area as Corporation,

which reads as under:Â​

Declaration of municipal area as Corporation. (1) For the purposes of this Act, the area comprised within the limits of the Shimla Municipal

Corporation constituted under the Himachal Pradesh Municipal Corporation Act, 1979 (9 of 1980) shall be the Municipal Corporation of Shimla.

(2) The Government may, from time to time, by a notification in the Official Gazette, declare any municipality to be a Corporation Known as ""the

Municipal Corporation of .........................................

(Name of Corporation)â€​:

Provided that no municipality or group of municipalities shall be so declared to be a Corporation unless:Â​

(i) the population thereof exceeds fifty thousand; and (ii) the total income of the municipality or group of municipalities immediately preceding the date

of issue of the notification, exceeds two corers rupees per annum.

(3) The Government may, from time to time, after consultation with the Corporation, by notification in the Official Gazette, alter the limits of the

municipal area of the Corporation declared under subÂsections (1) and (2) so as to include therein or exclude therefrom such areas as may be

specified in the notification.

(4) When the limits of the municipal area are altered, so as to include therein any area, except as the Government may otherwise by notification direct,

all rules, regulations, notifications, byeÂ​laws, orders, directions and powers issued or conferred and all taxes imposed under this Act and in force in the

municipal area, shall apply to such area.

(5) When a local area is excluded from the Corporation under subsection (3),Â​

(a) this Act, and all notifications, rules, byeÂ​laws, orders directions and powers issued, made or conferred under this Act, shall cease to apply thereto ;

and

(b) the Government shall after consulting the Corporation, frame a scheme determining what portion of the balance of the Corporation fund and other

property vesting in the Municipal Corporation shall vest in the Government and in what manner the liabilities of the Corporation shall be apportioned

between the Corporation and the Government, and, on the scheme, being notified, the property and liabilities shall vest and be apportioned accordingly.

Section 4 of the Act provides for incorporation and constitution of Corporation, which reads as under:Â​

(1) The Corporation shall be a body corporate having perpetual succession and a common seal with power subject to the Provisions of this Act, to

acquire,hold and dispose of property and may by the said name sue and be sued.

(2) Save as provided in subÂsection(3), all seats in the Corporation shall be filled by persons chosen by direct election from the territorial

constituencies in the municipal area and for this purpose the municipal area shall, by a notification issued in this behalf, be divided into territorial

constituencies to be known as wards.

(3) In the Corporation, in addition to persons chosen by direct election under this section, the Members of the State Legislative Assembly, representing

constituencies which comprise wholly or partly in municipal area, shall also be the Councillors.

(3ÂA). The State Government may, by notification, nominate as councillors not more than three persons having special knowledge or experience of

municipal administration:

Provided that a person who contested and lost the immediately preceding election of any Corporation shall not be nominated by the State Government

as a Councillor of that Corporation or any other Corporation during its existing term:

Provided further that a Councillor nominated under subÂsection whether before or after the commencement of the Himachal Pradesh Municipal

Corporation (Amendment) Act, 2003 shall hold office during the pleasure of the State Government, but not beyond the term of Corporation as

provided for in subÂ​section (1) of section 5 of this Act.

(3ÂB). The nominated Councillors referred to in sub section (3ÂA) and the Commissioner shall have the right to attend all the meetings of the

Corporation and to take part in the discussion therein but shall not have any right to vote.

(4) Where after the commencement of this Act, any municipal area is declared to be a Corporation under subÂsection (2) of section 3, all powers and

duties conferred and imposed upon the Corporation by or under this Act or any other law, shall be exercised and performed by the commissioner for a

period not exceeding six months or till a Corporation is constituted under the provisions of this Act, which ever is earlier.

15 Now, the moot question is whether the exercise of power under Sections 3 and 4 of the Act is administrative or legislative in character because

scope of judicial review in both cases would be entirely different.

16 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.

The issue in question is no longer res integra in view of the judgment rendered by the Hon'ble Supreme Court in Sundarjas Kanyalal Bhatija vs.

Collector, Thane, (1989) 3 SCC 396, wherein the Hon'ble Supreme Court has categorically held that issuance of notifications and consideration of

persons affected and taking decision under Bombay Provincial Municipal Corporation Act is a legislative process and, therefore, in absence of express

statutory provision, principles of natural justice are excluded from this process and there is no obligation to afford opportunity of hearing to the

objectors. It was further held that even if the government heard residents of only one municipal area, but when it was only after duly considering all

the objections and representations, that it took a decision excluding that municipal area alone from the proposed corporation, even then such decision

would not be vitiated on the ground of violation of principles of natural justice, arbitrariness and discrimination.

The judgment rendered in Sundarjas Kanyalal Bhatija's case (supra) has been consistently followed by this Court and reference in this regard can

conveniently be made to the judgments rendered by different division benches of this Court in Gram Panchayat, Nangal Kalan vs. State of H.P. &

ors., ILR 2015 (IV) HP 1582; Bal Krishan & ors. vs. State of H.P. & ors., ILR 2015(VI) HP 914 andY udh Chand Saklani vs. State of H.P. & ors.,

ILR 2016(VI) HP 1733.

20 Since judgment in Yudh Chand Saklani's case (supra) is later in point of time, it shall be profitable to refer to relevant observations as contained in

paras 35 to 39 of the judgment, which read as under:Â​

Even otherwise, declaration of Municipalities is a legislative function, which is undertaken by the Government in larger public interest and ordinarily

Courts are not to interfere in the decisions so undertaken by the State Government until and unless the judicial conscious of the Court is satisfied that

the decision so taken is not in public interest, but has been taken with ulterior motive at the behest of some interested person or persons who

personally stand to gain by the declaration of such Municipality. In this case, the petitioner has not been able to demonstrate or prove the same.

Petitioner has not been able to demonstrate or prove that the declaration of area subject matter of the writ petition into a Nagar Parishad 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 was not done by following statutory requirements of the Himachal Pradesh Municipal

Act, 1994.

It is settled law that function of the Government while establishing a Municipality is neither executive nor administrative, but it is a legislative

process.

In Tulsipur Sugar Co. Ltd. Vs. The Notified Area Committee, Tulsipur, (1980) 2 SCC 29,5 the Hon‘ble Supreme Court while dealing with U.P.

Town Areas Act, 1914 has held that power of the State Government to make a declaration under the same is legislative in character.

The Hon‘ble Supreme Court in Baldev Singh and Ors. Vs. State of Himachal Pradesh, (1987) 2 SCC 51,0 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.

The Hon‘ble Supreme Court in Sundarjas Kanyalal Bhathiaja and ors. Vs. The Collector, Thane, Maharashtra and ors., AIR 1990 SC 26, 1has

also held that rules of natural justice are not applicable to legislative action plenary or subordinate. The Hon‘ble Supreme Court in paraÂ23 of the

judgment has held: ―23. Reverting to the case, we find that the conclusion of the High Court as to the need to reconsider the proposal to form the

Corporation has neither the attraction of logic nor the support of law. It must be noted that the function of the Government in establishing a

Corporation under the Act is neither executive nor administrative. Counsel for the appellants was right in his submission that it is legislative process

indeed. No judicial duty is laid on the Government in discharge of the statutory duties. The only question to be examined is whether the statutory

provisions have been complied with. If they are complied with,, then, the Court could say no more. In the present case the Government did publish the

proposal by a draft notification and also considered the representations received. It was only thereafter, a decision was taken to exclude Ulhasnagar

for the time being. That decision became final when it was notified under Section 3(2). The Court cannot sit in judgment over such decision. It cannot

lay down norms for the exercise of that power. It cannot substitute even ""its juster will for theirs.

Similar reiteration of law regarding creation of municipality can be found in division bench's judgment of this Court in CWP No. 5451/2020, titled

as Lalit Singh vs. State of H.P. & ors., dated 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 area 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.

Learned counsel for the petitioners would however contend that this Court while deciding Lalit Singh's case (supra) has not taken into

consideration two latest judgments of the Hon'ble Supreme Court in Bharati Reddy vs. State of Karnataka & ors. (2018) 12 SCC 61 and Dravida

Munnetra Kazhagam (DMK) vs. Secretary, Governor's Secretariat & ors., (2020) 6 SCC 548.

In Bharati Reddy's case (supra), the appellant therein was elected as member of Zila Panchayat from constituency reserved for Woman

(General), whereas post of Adhyaksha of that Zila Panchayat was reserved for Backward Class Woman. The appellant contested to that post and

was declared successful. Private respondents challenged her selection in writ petition alleging that she had obtained false caste certificate, whereas

the appellant contended that the writ petition was not maintainable in view of alternative forum. Single Judge ruled writ petition to be not maintainable.

In intraÂcourt appeal, Division Bench concluded that writ petition was maintainable. Upholding the view taken by the Division Bench, the Hon'ble

Supreme Court held that power of judicial review under Articles 226/227 is an essential feature of Constitution, which cannot be tinkered with nor

eroded. However, this is not the fact situation obtaining in the present case.

As regards Dravida Munnetra Kazhagam (DMK)'s case (supra), the Hon'ble Supreme Court was dealing with a case, where delimitation for local

body elections had already been notified earlier as per proposal of delimitation Commission and State Government had already accepted it and issued

notifications in respect of 31 revenue districts. Pursuant to earlier delimitation exercise, concomitant reservations on the basis of rotation for SCs/STs

had also been proposed by Commission and the State Government had also issued notification therefor, but the impugned notification for creation of 9

out of 4 districts, prior to said elections, was without any research or proposal by delimitation commission and it was in this background that the

Hon'ble Supreme Court held as under:Â​

The contention of the respondents that the present proceedings amount to “calling in question an election†and hence not being maintainable in

view of the express constitutional embargos of Articles 243O and 243ZG does not impress us for the present proceedings are only to further the

expeditious completion of prerequisites of a fair election. Hence, the following ratio of a coordinate Bench in Election Commission of India v. Ashok

Kumar and Others [2000 (8) SCC 216] squarely applies to the present case:

“32.... (2) Any decision sought and rendered will not amount to “calling in question an election†if it subserves the progress of the election and

facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as

questioning the election.

(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the wellÂsettled parameters which

enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory

body been shown to have acted in breach of law.(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial

intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to

remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the

results are declared and stage is set for invoking the jurisdiction of the court.â€​

For the reasons aforestated, these applications are allowed in part and disposed of with the following directions:

15.1. The RespondentÂauthorities shall hold elections to all Panchayats at village, intermediate and district levels, except those in the following nine

reconstituted districts:

i. Kancheepuram

ii. Chengalpattu

iii. Vellore

iv. Thirupathur

v. Ranipet

vi. Villupuram

vii. Kallakurichi

viii. Tirunelveli ix. Tenkasi;

15.2. The Respondents (including the Delimitation Commission) are directed to delimit the nine newly constituted districts in accordance with law and

thereafter hold elections for their panchayats at the village, intermediate and district levels within a period of four months;

15.3. There shall be no legal impediment against holding elections for Panchayats at the village, intermediate and district levels for rest of the districts;

15.4 State Election Commission shall notify elections for the panchayats at village, intermediate and district levels in respect of all districts except the

nine reconstituted districts as per the details given in direction 15.1 above;

15.5. While conducting elections, the respondents shall provide proportionate reservation at all levels, in accordance with the Rule 6 of Tamil Nadu

Panchayats (Reservation of Seats and Rotation of Reserved Seats) Rules, 1995.

After having gone through the aforesaid judgments and discussed, as above, we find that the ratio laid down therein is not at all attracted to the

facts of the instant case and evidently, the same does not at all deal or even remotely touch the issue involved in the present case and is, thus, clearly

distinguishable.

In view of aforesaid exposition of law, we are clearly of the view that the power exercisable under Sections 3 and 4 of the Act by the Government

is not an exercise of a judicial or quasiÂjudicial function, where the very nature of function involves the principles of natural justice or in any case an

administrative function affecting the rights of an individual. As discussed above, the function is legislative in character and being a legislative function,

even rules of audi alteram partem does not apply to such act as has been held by this Court in Lalit Singh's case (supra) and in CWP No. 3895/2020,

titled as Vijay Kumar & ors. vs. State of H.P. & ors., decided on 23.12.2020.

As regards allegations of mala fides, by long established practice, which has received approbation from the authorities of the Hon'ble Supreme

Court, the Court has always refrained from attributing malafides to the legislature. In fact, such a thing is unknown to law. Here, it shall be apt to

reproduce relevant observations as contained in para 36 of the judgment rendered by the Hon'ble Supreme Court in K. Nagaraj vs. State of Andhra

Pradesh, AIR 1985 SC 551, wherein it was observed as under:Â​

The argument of mala fides advanced by Shri A.T. Sampat, and adopted in passing by some of the other counsel, is without any basis. The burden

to establish mala fides is a heavy burden to discharge. Vague and casual allegations suggesting that a certain act was done with an ulterior motive

cannot be accepted without proper pleadings and adequate proof, both of which are conspicuously absent in these writ petitions. Besides, the

ordinanceÂmaking A power being a legislative power, the argument of mala Fides is misconceived. The legislature, as a body, cannot be accused of

having passed a law for an extraneous purpose. Its reasons for passing a law are those that are stated in the Objects and Reasons and if no reasons

are so stated, as appear from the provisions enacted by it. Even assuming that the executive, in a given case, has an ulterior motive in moving a

legislation, that motive cannot render the passing of the law mala fide. This kind of 'transferred malice' is unknown in the field of legislation.

The petitioner has not been able to demonstrate or prove that declaration of area, subject matter of the writ petition, into Municipal Corporation 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.