IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA, CHANDIGARH C.W.P.No.2273 of 2007 Date of decision: 04.09.2008 Gram Panchayat Bassi Sekhan ......Petitioner(s) Versus State of Punjab & others ...Respondent(s) CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Amit Jain, Advocate for the petitioner. Mr. A.S. Grewal, Addl.A.G, Punjab for respondent No.1. Mr. Sandeep Khunger, Advocate for respondent No.2. JASWANT SINGH,J Present petition has been filed by Gram Panchayat, Village Bassi Sekhan, Tehsil Rajpura, District Patiala (For short “Gram Panchayat”) seeking the quashing of Notification dated 23.10.2006 (Annexure P.2) and order dated 15.12.2006 (Annexure P.4) vide which area of the Gram Panchayat has been proposed to be included in the Municipal Limits of Municipal Council, Banur, District Patiala and the objections filed by the petitioner to the same have been rejected, respectively. Briefly, the facts as stated in the writ petition are that the Gram Panchayat is situated at a distance of 2 kms from the limits of Municipal Council, Banur. It is stated that the State Government had earlier issued a Draft Notification under Section 5(2) of the Punjab Municipal Act, 1911 (For short “the Act”) on 1.4.1998 vide which the Municipal Limits of Municipal Council, Banur were proposed to be extended whereby the area of the Gram Panchayat was sought to be included. Petitioner-Gram Panchayat and other effected persons filed their objections to the said Draft Notifications and the same were accepted by the Competent Authority vide order dated 28.6.2005 (Annexure P.1) and the proposal to alter the said Municipal Limits by including the area of the C.W.P.No.2273 of 2007 #2# petitioner-Gram Panchayat was ordered to be withdrawn. Thereafter, the State Government has again proceeded to issue a similar Notification under Section 5(2) of the Act on 23.10.2006 ( Annexure P. 2) wherein it is proposed to extend the limits of the Municipal Council, Banur so as to include the area in question of the petitioner-Gram Panchayat. Gram Panchayat filed details objections on 19.11.2006 to the Notification dated 23.10.2006 (Annexure P.2), wherein it was emphasized that the land falling between the Municipal Limits of the Municipal Council, Banur and the Village Bassi Sekhan (petitioner- Gram Panchayat) is totally agricultural cultivable land and there is no building structure existing in the area, such inclusion would seriously affect the finances of the Gram Panchayat besides adversely affecting the livelihood of the villagers. The Competent Authority, however, vide order dated 15.12.2006 (Annexure P.4) rejected the objections filed by the petitioner-Gram Panchayat and approved the proposed alterations in the Municipal Limits of Municipal Council, Banur. Hence, the present writ petition. Respondent-Municipal Council, Banur, upon notice, have filed written statement stating that limits of Municipal Council, Banur were last extended vide notification dated 20.11.1985 and thus the present extension has taken place after a period of more than 26 years and due to substantial development and habitation outside the municipal limits. The reasons for dropping the previous proposal in the year 2005 have been given. It is further stated that a final notification dated 19.12.2006 extending the municipal limits in pursuance of Annexure P/2 has been issued. We have heard learned counsel for the parties. Learned counsel for the petitioner-Gram Panchayat argued that the action of the respondents in issuing impugned notification and order (Annexure P/2 and P/4 respectively) for inclusion of the area is based on non-application of mind as a similar notification issued earlier for extending the aforesaid municipal limits, on objections raised by the residents of the petitioner-Gram Panchayat, was withdrawn by the C.W.P.No.2273 of 2007 #3# competent authority vide order dated 20.6.2005 and there is no material change in the circumstances since then, which would justify the issuance of fresh notification for the same purpose. It was further argued that the action of the respondents in extending the municipal limits so as to include the area of petitioner-Gram Panchayat, is arbitrary inasmuch as the factors provided in sub-section (1) of Section 4 of the Act have not been strictly followed. It was then argued that action of the respondents is discriminatory as the area/ factory premises of M/s Chandigarh Distillers and Bottlers and Surya Pharmaceuticals have been excluded. On the other hand learned counsel for the respondents have argued that the factors provided in sub-section (1) of Section 4 of the Act have been duly considered while deciding to extend the municipal limits and due process of law was followed and therefore the impugned notification and order (Annexures P/2 and P/4) are valid. Before embarking upon any discussion, we feel that reproduction of relevant extract of provisions of Sections 4 & 5 of the Act is necessary for adjudication of the case, which reads thus: “4. Specification of Local areas to be smaller areas or transitional areas and constitution of Municipal Councils and Nagar Panchayats: (1) The State Government having regard to the population of area, 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 may be deem fit, specify by notification in the official gazette any area to be transitional area or smaller area or smaller urban area for the purpose of the Act. Provided that no military cantonment or any part thereof shall be included in such transitional area or a smaller urban area: Provided further that such an urban area or part thereof, as the State Government may, having regard to the size of the area and municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as it may deem fit, by notification, specify to be an industrial C.W.P.No.2273 of 2007 #4# township shall not form part of a transitional area or a smaller urban area. (2) xx xx to (6) xx xx 5. Alternation of limits of Municipality. (1) The State Government may, from time, to time, keeping in view the provisions of sub-section (1) of Section 4 and after consultation with the concerned municipality, by notification in the official Gazette after the limits specified for any municipal area so as to include therein or to exclude there from such area as may be specified in the notification. (2) The power to issue a notification under sub-section (1) shall be subject to the condition of previous publication.” It is discernible from a conjoint reading of sub-section(1) and Sections 4 and 5 of the Act that the State Government, at any time, can extend the municipal limits of a Municipality, after consultation with the concerned Municipality, by taking into consideration certain illustrative factors like population and density of area to be included or excluded, continuity with the existing limits, revenue likely to be generated, economic importance, non-agricultural activities in the area etc, provided there is a previous publication of the proposal to extend. After giving our thoughtful considerations to the rival submissions and perusing the record, we are of the opinion that the contentions raised by the petitioner are devoid of any merit and hence liable to be rejected. In the present case, admittedly, Municipal Council, Banur had passed a resolution dated 12.9.2006 seeking to extend its limits so as to include the area of the petitioner-Gram Panchayat. There is also no dispute that a draft notification dated 23.10.2006 (Annexure P/2) has been issued notifying the proposal to extend and invite objections from the inhabitants of the areas to be included. It is also not disputed that 21 objections were received and objectors were called for personal hearing on 8.12.2006. On close scrutiny of the impugned order dated 15.12.2006 (Annexure P/4) we C.W.P.No.2273 of 2007 #5# find that the objections raised by the objectors were thoroughly considered. It is apparent from the material on record that large numbers of shops, rice shellers, brick kilns, marriage palaces etc. are already existing in the area and the entire area is in the process of acquiring an urban character and needs to be included within the municipal limits for ensuring its planned growth. The population of the area included in the municipal limits is more than 5000. It is also evident that the aforesaid area is of due economic importance because of coming up of residential colonies such as Bazigar Colony and Uttam Colony as also large number of industrial units already established. The factory premises of M/s Chandigarh Distillers and Bottlers and Surya Pharmaceuticals and their surrounding areas being used for treatment of waste water have been excluded because the continuation of “red category industries” within the municipal limits is not conducive to public health and therefore, it cannot be said that the action is discriminatory. As regards, the argument raised on behalf of the petitioner that similar earlier proposal to include the area of the petitioner-Gram Panchayat was dropped in the year 2005 and therefore, there was no basis available for issuance of afresh proposal to include the same area within the Municipal Limits of Municipal Council, Banur, it has been explained that the proposal for alteration of the Municipal Limits of Municipal Council on the aforesaid lines had been initiated vide order dated 20.3.1998 and for one reason or the other, the matter kept pending till 2005. Ultimately, vide order dated 20.3.2005, the aforesaid proposal was withdrawn with the following observations: “It may however be observed here that the Government would consider the alteration (inclusion of more area) in the municipal limits at an appropriate time, when the above noted factors weigh in favour of the proposal of alteration of municipal limits.” Therefore, the issue was left open and hence the arguments does not assist the case of the petitioner in any manner. Thus viewed, we find that the decision to include the area of C.W.P.No.2273 of 2007 #6# the petitioner-Gram Panchayat within the extended limits of Municipal Council, Banur vide Annexures P/2 and rejection of objections vide order dated 15.12.2006 (Annexure P/4) is in conformity with the parameters laid down in Sections 4(1) of the Act and therefore legally valid. There is another aspect of the matter. In our considered opinion the exercise of powers by the State Government under Section 5 of the Act, while proceeding to alter the municipal limits by excluding or including certain areas in the said Municipality, is legislative in nature. This view of ours finds support from a decision of the Hon'ble Supreme Court rendered in State of Punjab v. Tehal Singh and others, AIR 2002 SC 533. In the reported case, their Lordships of the Hon'ble Supreme Court considered the nature of the power exercised by the State Government under Sections 3 and 4 of Punjab Gram Panchayat Act,1952, providing for establishment of Gram Sabha areas and constitution of Gram Sabhas. Relying upon principles of law enunciated in earlier decision reported as Rameshchandra Kachardas Porwal and others etc. v. State of Maharashtra and others, 1981 (2) SCC 722 and Union of India and another v. Cynamide India Ltd. And another 1987(2) SCC 720, and the provisions of Sections 3 and 4 of the Punjab Gram Panchayat Act,1952, it was held that making of a declaration under Section 3 of the Act, determining the territorial area of a Gram Sabha and thereafter establishing Gram Sabha for that area is an act, legislative in character. In para 7 of the said judgement, their Lordships stated the principles of law, which read as under:- 7. The principles of law that emerge from the aforesaid decisions are -(1) where provisions of a statute provide for the legislative activity, i.e making of a legislative instrument or promulgation of general rule of conduct or a declaration by a notification by the Government that certain place or area shall be part of a Gram Sabha and on issue of such a declaration certain other statutory provisions come into an action forthwith which provide for certain consequences:(2) where the power to be exercised by the Government under C.W.P.No.2273 of 2007 #7# provisions of a statute does not concern with the interest of an individual and it relates to public in general or concerns with a general direction of a general character and not directed against an individual or to a particular situation and (3) lay down future course of actions, the same is generally held to be legislative in character. Applying the aforesaid principles of law, we find that vide draft notification dated 23.10.2006 (Annexure P.2) under Section 5(2) of the Act and final Notification dated 19.12.2006 (not under challenge) under Section 5(1) of the Act, declaration for inclusion of the area of the petitioner Gram Panchayat within the municipal limits of Municipal Council, Banur does not concern with the interests of an individual or a particular resident of the area but is general in character and relates to an area inhabited by all the residents sought to be included within the municipal limits, and therefore, legislative in nature and not open to challenge on the grounds as canvassed in the present petition. For the reasons recorded above, we find no merit in this writ petition. Hence dismissed. ( JASWANT SINGH ) JUDGE September 04, 2008 ( SATISH KUMAR MITTAL ) manoj JUDGE