IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 WP(C).No. 14160 of 2010(T) --------------------------------------- PETITIONER(S): ----------------------- SREEKALA K., MANCHAKKATTIL, THIRUVANKULAM, ERNAKULAM DISTRICT. BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR RESPONDENT(S): -------------------------- 1. STATE OF KERALA,REPRESENTED BY ITS SECRETARY, LOCAL ADMINISTRATION (EM) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM 2. TRIPUNITHURA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPALITY OFFICE, TRIPUNITHURA. 3. THIRUVANKULAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THIRUVANKULAM. *ADDL. R4 AND R5 IMPLEADED ADDL. R4: STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE COMPLEX, THIRUVANANTHAPURAM. ADDL. R5: STATE DELIMITATION COMMISSION, KERALA, REPRESENTED BY ITS SECRETARY, TC.14/764(4), OBSERVATORY LANE, MUSEUM P.O., THIRUVANANTHAPURAM-695 033. *ARE IMPLEADED AS PER ORDER DATED 15/06/2010 IN I.A.7778/2010. R1 BY SRI.C.P. SUDHAKARA PRASAD, ADVOCATE GENERAL, BY GOVT. PLEADER SRI.T.B. HOOD. R2 BY ADV. SRI.V.M.KURIAN. ADDL.R4 & R5 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2010, ALONG WITH WP(C) NO.17104 OF 2010 AND CONNECTED CASES, THE COURT ON 22/07/2010 DELIVERED THE FOLLOWING: rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 14160/2010-T, 17104/2010-K, 18019/2010-B, 18167/2010-U, 18543/2010-P, 18883/2010-I, 18931/2010-D, 19508/2010-K & 20079/2010-H - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of July, 2010. JUDGMENT These writ petitions concern the challenge against the notifications whereby certain Panchayats have been added to Thiruvananthapuram and Kozhikode Corporations; the addition of certain Panchayats to the existing Municipalities and challenge against the conversion of a Panchayat as a Municipality itself. Since common questions arise for consideration, they are disposed of by a common judgment. 2. First I will deal with the challenge against the addition of certain Panchayats to two existing Corporations, viz. Thiruvananthapuram and Kozhikode. These writ petitions are: W.P.(C) Nos.18019/2010, 18167/2010, 18543/2010, 18931/2010, 19508/2010 and 20079/2010. The notifications putting forth the proposal, order rejecting the objections and the subsequent final notifications are common in respect of all these Panchayats. wpc 14160/2010, etc. 2 W.P.(C) Nos.18019/2010, 18167/2010, 18543/2010, 18931/2010, 19508/2010 & 20079/2010 3. The narration of the facts as stated in W.P.(C) Nos.18019/2010 show the following: By Ext.P1 dated 9.12.2009 published in the Gazette, the Government proposed to add Sreekaryam, Vattiyoorkavu, Kudappanakunnu, Kazhakkoottam and Vizhinjam Grama Panchayats to Thiruvananthapuram Corporation and Elathur, Cheruvannur - Nallalam and Bepur Grama Panchayats to Kozhikode Corporation. Objections/suggestions were invited from individuals, Village Panchayats and Municipal Corporations in the matter. By Ext.P5 order No.102/10/LA dated 22.5.2010 these objections were considered and it was decided to implement the proposal and to issue appropriate notification, to be effective from 1.10.2010. The petitioners are residents within Sreekaryam Grama Panchayat and the first petitioner had filed an objection to the proposal. The petitioner in W.P.(C) No.18931/2010 challenges the addition of Kazhakottam Grama Panchayat to Thiruvananthapuram Corporation and the petitioners in W.P.(C) No.20079/2010 challenge the addition of Vizhinjam Grama Panchayat to the Thiruvananthapuram Corporation. The notification and the orders are the same. In W.P.(C) No.18167/2010 the challenge is wpc 14160/2010, etc. 3 against the addition of Elathur, Cheruvannur-Nallalam and Bepur Grama Panchayats to Kozhikode Corporation, in W.P.(C) No.18543/2010 the challenge is against the addition of Cheruvannur-Nallalam Grama Panchayat to Kozhikode Corporation and in W.P.(C) No.19508/2010 the petitioner challenges the addition of Bepur Grama Panchayat to Kozhikode Corporation. The exhibits are referred to hereinafter with reference to W.P. (C) No.18019/2010. 4. Heard Shri K. Ramakumar, Shri N. Nandakumara Menon, and Shri V. Chitambaresh, learned Senior Counsel, and learned counsel Shri V.V. Nandagopal Nambiar, Shri P.P. Jacob, Shri C.P. Mohammed Nias, Shri George Poonthottam, Shri Kaleeswaram Raj and Shri Sudhi Vasudevan, for the petitioners, and learned Advocate General Shri C.P. Sudhakara Prasad for the State and Shri Murali Purushothaman learned Standing Counsel appearing for the Delimitation Commission. 5. The questions raised in these writ petitions are many fold, requiring interpretation of the relevant provisions of the Constitution of India and that of the Municipalities Act. The main contentions are the following: Article 243Q provides constitution of three types of local bodies, viz. Nagar Panchayat, Municipal Council and Municipal wpc 14160/2010, etc. 4 Corporation. The Village Panchayats herein are really rural areas and if at all there is a transition to an urban area, going by Article 243Q, they can be formed only as a Nagar Panchayat which is envisaged for a “transitional area” and there is no provision to add them to a Municipal Corporation. Therefore, it is contended that a Grama Panchayat cannot be directly added to/or converted as a Municipal Corporation. Section 4(2)(e) of the Kerala Municipality Act, 1994 (hereinafter referred to as 'the Act'), providing such merger of a Panchayat area geographically lying adjacent to a Municipality, is unconstitutional, as it is in contravention of Article 243Q. If at all Section 4(2)(e) is applicable, then the Grama Panchayat can only be added to a Municipality and there is no provision for including it in a Municipal Corporation. It is mainly contended that the Governor of the State will have to notify under Article 243Q a “transitional area” a “smaller urban area” or a “larger urban area” based on the yardsticks provided therein and in the absence of a notification, the Government cannot propose merger of those Grama Panchayats with a Municipality. The proposal by the Government in that regard is therefore without jurisdiction, as the Government cannot take such a decision even going by the proviso to Section 4(2)(e) of the Kerala Municipality Act. It is further pointed out that wpc 14160/2010, etc. 5 there is absence of consultation with the village Panchayats, which is mandatory. One of the contentions raised is that the unification of a Village Panchayat to a Corporation will deprive large Sections of the society the benefits distributed by Village Panchayats including the benefit of the scheme, viz. “National Rural Employment Guarantee Scheme” which are being implemented by the Panchayats concerned, with the funds provided by the Central Government and State Government. It is also contended that none of the Panchayats can be termed as having any urban character and the decision otherwise taken by the Government is politically motivated , ignoring the relevant aspects and without applying the mind. 6. After the writ petitions were admitted, the respondents produced along with a statement, the notification issued by the Government with the approval of the Governor under Article 243Q(2) dated 8.6.2010 and the notification issued by the Government under Section 4(2)(e) of the Municipality Act, uniting village Panchayats with the two Corporations which is also dated 8.6.2010 and accordingly the writ petitions have been amended by adding new grounds. It is contended that the notification under Article 243Q is issued by the Government itself and not by the Governor and there is still violation of the Constitutional provisions. Detailed wpc 14160/2010, etc. 6 counter affidavits have been filed by the respondents. 7. Part IX of the Constitution concerns Panchayats and Part IXA concerns Municipalities. As far as Municipalities are concerned, the provisions relevant herein are Articles 243P and 243Q, which are reproduced below: “243P. Definitions.-- In this Part, unless the context otherwise requires,-- (a) 'Committee' means a Committee constituted under article 243S; (b) 'district' means a district in a State; © 'Metropolitan area' means an area having a population of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous areas, specified by the Governor by public notification to be a Metropolitan area for the purposes of this Part; (d) 'Municipal area' means the territorial area of a Municipality as is notified by the Governor; (e) 'Municipality' means an institution of self-government constituted under article 243Q; (f) 'Panchayat' means a Panchayat constituted under article 243B; (g) 'population' means the population as ascertained at the last preceding census of which the relevant figures have been published. 243Q. Constitution of Municipalities.-- (1) There shall be constituted in every State.-- (a) a Nagar Panchayat (by whatever name called) for a wpc 14160/2010, etc. 7 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 © 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 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.” Article 243P defines 'Municipal area' as the territorial area of a Municipality as is notified by the Governor and sub Article 243(e) defines 'Municipality'. It gives the meaning of the 'population' as follows: “ 'population' means the population as ascertained at the last preceding census of which the relevant figures have been published.” Section 4 of the Kerala Municipality Act provides for constitution, alteration and conversion of wpc 14160/2010, etc. 8 municipalities and Sections 4(1) and 4(2) are extracted below: “4. Constitution, alteration and conversion of Municipalities.-- (1) The Government shall, by notification in the Gazette, constitute with effect from such date as specified in the notification,- (a) a “Town Panchayat” for a transitional area; (b) a “Municipal Council” for a smaller urban area; and © a “Municipal Corporation” for a larger urban area, and specify the name of such Municipalities. (2) The Government may, by notification,- (a) exclude any municipal area from the operation of this act; or (b) exclude from a municipal area comprised therein and defined in the notification; or © divide any municipal area into two or more municipal areas; or (d)unite two or more municipal areas; or (e) unite the territorial area of a Panchayat geographically lying adjacent to a Municipal area, with the Municipality; or (f) convert a Village Panchayat into a Town Panchayat or a Municipal Council; or (g) convert a Town Panchayat into a Municipal Council; or (h) convert a Municipal Council into a Municipal Corporation: Provided that, before issuing such a notification the requirements under Article 243Q sub-section (1) shall be fulfilled and the suggestions and opinions of the Village Panchayat or Town wpc 14160/2010, etc. 9 Panchayat or Municipal Council or Municipal Corporation concerned, shall be considered. Provided further that any notification issued under this sub- section shall not be brought into force except in such a way as to coincide with the expiry of the term of the existing Municipal Council or Village Panchayat in that territorial area.” 8. The first question to be considered is whether a Village Panchayat can be converted only as a Nagar Panchayat. It is argued that there is a hierarchy provided as per the Constitution as 'Nagar Panchayat', 'Municipal Council' and 'Municipal Corporation' in Article 243Q(1); a Nagar Panchayat has to be constituted for an area in transition from a rural area to an urban area; a Municipal Council for a smaller urban area; and a Municipal Corporation for a larger urban area. It is therefore relevant to consider whether there is any restriction under the Constitution to merge/unite a village Panchayat to a Municipal Corporation. 9. Learned Advocate General submitted that Municipality or Municipal Corporation is not defined under Section 4 of the Act and under Article 243P(e), 'Municipality' means an institution of self-government constituted under article 243Q. All the three institutions will come within the definition of “Municipality” itself. Therefore, once the area of a Village Panchayat is notified either as a transitional area, smaller urban area or wpc 14160/2010, etc. 10 larger urban area, it will be one coming within the definition of a 'Municipality' and therefore going by Section 4(2)(e) of the Act, such a Panchayat which is geographically lying adjacent to a “Municipal area,” can be united with the “Municipality”. The word 'Municipality' there in takes in Municipal Corporation also. 10. It is true that the words 'Municipality' and 'Municipal Corporation' are not defined under the Act. Section 3 of the Act provides that words and expressions used but not defined in this Act and defined in Part IXA of the Constitution of India shall have the meanings respectively assigned to them in that Part. The word 'Municipal area' as defined under Article 243P(d) means the territorial area of a Municipality as is notified by the Governor. The combined effect of Articles 243Q(1) and (2) is that institutions notified therein by the Governor will constitute themselves as 'a Nagar Panchayat', a 'Municipal Council' and 'a Municipal Corporation'. Under Section 4(2)(e) of the Act, the Government can, by notification unite the territorial area of a Panchayat geographically lying adjacent to a Municipal area with the Municipality. Therefore, when the definition of the term 'Municipality' in Article 243P takes in the institutions constituted under Article 243Q(1) and (2), it can be seen that there is no embargo in wpc 14160/2010, etc. 11 uniting a Village Panchayat notified as a larger urban area, to a Municipality, meaning a Municipal Corporation, if it is lying geographically adjacent to it. Hence, the absence of the words 'Municipal Corporation' in Section 4(2)(e) of the Act will not affect the exercise of the said power. 11. The Apex Court in Saij Gram Panchayat v. State of Gujarat and others (AIR 1999 SC 826), has considered the true concept emanating from the expression 'Municipality” under Article 243Q. In para 18 their Lordships explained thus: “Article 243-Q deals with Constitution of Municipalities. Municipality is defined under Article 243P(e) to mean “an institution of self-Government constituted under Art.243-Q. Art.243-Q constitutes three types of Municipalities -- (a) a Nagar Panchayat (b) a Municipal Council and © a Municipal Corporation.” 12. In Raveendran v. State of Kerala (2006 (1) KLT 427), this Court had occasion to analyse Part IXA of the Constitution, which exclusively concerns itself with Municipalities. While considering the question whether an area notified as urban area by the Governor, can again be renotified as a rural area, and as Panchayat by the Government, it was held that the same is impermissible under the Constitution. The Constitution of Municipalities was held as a mandate of the Constitution wpc 14160/2010, etc. 12 itself. Thottathil B. Radhakrishnan, J. held thus in para 12: “In so far as Municipalities in Part IXA are concerned, having regard to the population of the area as defined in Art.243P(g), the density of 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, the Governor may specify by public notification “a transitional area”, “a smaller urban area” or “a larger urban area”. On such notification being issued under Article 243Q(2), a Municipality, meaning an institution of self-government as defined in Article 243P(e) comes into being. By the mechanism provided under Art.243Q(1), a Nagar Panchayat gets constituted for a transitional area, a Municipal Council gets constituted for a smaller urban area and a Municipal Corporation gets constituted for a larger urban area. The constitution of such Municipalities is the mandate of the Constitution and does not depend on any law made by the Legislature. As is in the case of Panchayats, the making of law by the State gets confined to subjects commencing only from the composition of Municipalities, as provided from and inclusive of Art.243R.” It was further held in para 14 thus: “While Art.243(g) gives no constitutional yardstick for the Governor to ascertain and specify a village, Art.243Q(2) provides yardsticks to identify transitional area, smaller urban area and larger urban area. It has been held by the Apex Court in State of wpc 14160/2010, etc. 13 U.P. v. Pradhan singh Kshettra Samiti, (1995) Supp (2) SCC 305 that in specifying villages for the purpose of Part IX, the Governor is not bound by any particular yardsticks. Art.243Q(2) provides the yardsticks for the three types of areas mentioned in Art.243Q (2) and the municipal area as defined in Art.243P(d) is the territorial area of a Municipality as is notified by the Governor. These provisions would show that there cannot be a transition of the constitutionally created smaller urban area, larger urban area and a transitional area, to be a village, to fall into Part IX of the Constitution and such an exercise cannot be done under Part IXA of the Constitution. This is because the Municipality in relation to a transitional area or a smaller urban area, or a larger urban area, on its coming into existence, becomes a constitutional institution and cannot be abolished by an act of the Legislature without specific authorisation in that regard in the Constitution.” Therefore, a Municipality becomes a constitutional institution in relation to a transitional area or a smaller urban area or larger urban area. The word 'Municipality” therefore, obviously takes in, going by Article 243P(e), a Nagar Panchayat, a Municipal Council and a Municipal Corporation. Thus, Section 4(2)(e) of the Act gives power to the Government to unite the territorial area of a village panchayat which is declared as a larger urban area by the Governor, in exercise of the power under Article 243Q(2), with a Municipal Corporation. It is not as if, as contended by the learned wpc 14160/2010, etc. 14 counsel appearing for the petitioners, that if at all there is a power under Section 4(2)(e) of the Act, it can be united only to a Municipality. Therefore, the contention that a village panchayat can only be constituted as a Nagar Panchayat and cannot be formed as a part of a Municipal Corporation directly, cannot hold good and hence the said argument is rejected. 13. Learned Counsel appearing for the petitioners then submitted that Section 4(2)(e) of the Act is unconstitutional, as it goes against the provisions of the Constitution in Part IXA. It is contended that going by Article 243Q(1), there is a hierarchy of local self government institutions and so on and therefore when a rural area is sought to be transformed from the status of a village Panchayat, initially only a Nagar Panchayat alone can be formed and the provisions of the Act, viz. Section 4(2) (e) to unite such area with the Municipal Corporation is unconstitutional. The transformation as a Municipal Council and lastly as a Municipal Corporation can only be by step by step. 14. Learned Advocate General submitted that Section 4(2)(e) is not violative of any of the provisions of the Constitution and therefore the contention cannot be accepted. True, that in Article 243Q three types of wpc 14160/2010, etc. 15 institutions of local self government will have to be constituted, after undergoing an exercise under Article 243Q(2), by the Governor of the State. There is no prohibition under any of the provisions of Part IXA of the Constitution against the power of the Government to unite a village panchayat which has been declared as a larger urban area, to a Municipality. As already noticed, the word 'Municipality' takes in all the three institutions. Therefore, once it forms the character of a larger urban area it is open to the Government to unite it to a Municipal Corporation if the same is lying adjacent to the Municipal area. Therefore, the contention that Section 4(2)(e) is unconstitutional, as it is in violation of Article 243Q, is clearly unsustainable. It was also contended that merger of a grama panchayat straight away to a Municipal Corporation is also illegal. The argument is that only the word 'Municipality' alone is available under Section 4(2)(e) and the merger of a panchayat with a Municipal Corporation is not envisaged. As already held, the word 'Municipality' takes in all the three institutions including a Municipal Corporation and therefore the said contention also does not merit any consideration. It is not the law that the transformation of a village panchayat, once it gains the urban character should be as Nagar Panchayat, then as Municipal Council and as Municipal wpc 14160/2010, etc. 16 Corporation, in that pattern. It depends on the notification by the Governor under Article 243Q(2). There is no indication therein that a rural area, on getting urban character and by fulfilling the yardsticks contained therein, can only be declared as a transitional area. 15. Learned Senior Counsel Shri K. Ramakumar vehemently contended that the proposal by the Government notified way back in December 2009 that the village panchayats named therein have acquired the character of larger urban area and smaller urban area, as the case may be, clearly goes against the scheme under Article 243Q(2), as the Governor alone has the power to issue such a notification. It is therefore submitted that the entire exercise leading to the notifications dated 8.6.2010 produced as Exts.R1(c) and (d) are clearly illegal and unconstitutional. It is pointed out that a notification under Section 4(2)(e) can be published, going by the proviso to Section 4(2)(e), after fulfilling the requirements under Article 243Q and after considering the suggestions and opinions of the village panchayat, etc. It is therefore submitted that the entire exercise done by the Government cannot be supported in law as it goes against the Constitutional as well as the statutory schemes. The learned counsel appearing for the other petitioners also supported the said argument. wpc 14160/2010, etc. 17 16. Learned Advocate General submitted that the Governor has to act under the advice of the Council of Ministers and it not a case where the Governor is taking a decision in accordance with his discretion under the specified provisions of the Constitution and therefore the initial notification dated 9.12.2009 (Ext.P1) is perfectly within jurisdiction. Reliance is placed on the decision of the Apex Court in State of U.P. and others v. Pradhan Singh Kshettra Samithi and others (1995 supp 2 SCC 305). The further contention taken by the learned counsel for the petitioners that the principles of natural justice have been violated in not granting an opportunity for submitting objection, etc. and for a hearing before the final notification was issued, was opposed by the learned Advocate General contending that the declaration made by the Governor and the notification published, is a legislative function and the principles of natural justice are alien to such a legislative exercise. The decisions of the Apex Court in Rameshchandra Kachardas Porwal and others v. State of Maharashtra and others {(1981) 2 SCC 722) and State of Punjab v. Tehal Singh and others {(2002) 2 SCC 7) were relied upon in this context, whereas learned counsel for the petitioners relied upon the decisions of the Apex Court in Baldev Singh and others v. State of wpc 14160/2010, etc. 18 Himachal Pradesh and others {1987) 2 SCC 510), State of U.P. and others v. Pradhan Singh Kshettra Samithi and others (1995 supp 2 SCC 305) and State of Maharashtra and others v. Jalgaon Municipal Council and others {(2003) 9 SCC 731) and Raveendran's case (2006 (1) KLT 427). 17. Herein, the statutory scheme under Section 4(2) of the Act and the proviso shows that the Government can issue a notification uniting the territorial area of a Panchayat to a Municipality, but the proviso stipulates that before issuing such a notification, “the requirements under Article 243Q and sub-section (1) shall be fulfilled and the suggestions and opinions of the Village Panchayat or Town Panchayat or Municipal Council or Municipal Corporation concerned, shall be considered.” As far as the