CWP No. 9282 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 9282 of 2010 (O&M) Date of Decision: 1.07.2010 Gurgaon Citizens Council & Anr. ...Petitioners Vs. The State of Haryana & Ors. ...Respondents CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Ms.Nivedita Sharma & Mr.Amit Singh, Advocates, for the petitioners. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma, J . (Oral) This writ petition under Article 226 of the Constitution of India has been filed to challenge the constitutional validity of notification No.18/1/95/2008-3CI dated 2nd June, 2008, issued in exercise of powers CWP No. 9282 of 2010 2 conferred under Section 3 (2) of the Haryana Municipal Corporation Act, 1994 (for short the Act), vide which Municipal Council of Gurgaon has been declared as Municipal Corporation along with extended limits as given in the said notification. The petitioners also challenge the validity of public notice dated 9.3.2010 (Annexure P.4) issued for imposing property tax in the area of Municipal Corporation i.e. including the area under builders/colonizers. The notice has been issued under section 97 of the Act. Brief facts as pleaded in the writ petition are that Gurgaon Citizens Council is a non-governmental organization registered in the year 2005 to safeguard the interests of the citizens of Gurgaon by working along with various Residents' Welfare Associations, Apartment Association, Mercantile Associations and citizens of Gurgaon. The case of the petitioners is that the Citizens Council aims to ensure that Gurgaon develops in a planned manner in line with the assurance given by the government and to pursue all matters related to electricity, water, power, sewerage, taxes and levies etc. as also other problems being faced by the citizens at large. The petitioners are aggrieved by issuance of notification, by alleging it to be violative of mandatory provisions of law and also being violative of principles of natural justice. The grievance of the petitioners is that imposition of tax is arbitrary as the colonizers' area vest with the builders as no completion certificate has been obtained as the development work is still incomplete which causes great hardship to the residents of these CWP No. 9282 of 2010 3 areas due to shortage of water, power and other allied infrastructures. The case set up is that the residents of the area under builders/colonizers have already parted with substantial money towards development work which was promised to be completed almost 15 years back but is still incomplete. The Municipal Corporation of Gurgaon was constituted on 2.6.2008 vide notification issued by the Department of Urban Local Bodies bearing Notification No.18/1/95/2008-3C1 in exercise of powers conferred under section 3 (2) of the Act. The Municipal Council of Gurgaon comprises the areas as specified in Schedule to the notification. Notification has been issued declaring Municipal Council to be Municipal Corporation of Gurgaon. The Municipal Corporation thereafter issued a public notice under section 97 (2) and (3) of the Act. Notice issued reads as under:- “ It is for the information of general public that the work regarding assessment of house tax taken up during the year 2008-09 has been completed. Individual notices of this assessment are being issued to the owners/possession of every land and building situated with the limits of Municipal Corporation, Gurgaon separately. The assessment list can be seen on the MCG's website www.imcg.gov.in . It can also be seen/inspected on any working day in the office of Zonal Taxation Officer opposite Civil Hospital Gurgaon. If any CWP No. 9282 of 2010 4 owner/possessor has any objection with respect to the proposed assessment, h/she may file his/her objections to the Zonal Taxation Officer, Municipal Corporation, Gurgaon, within a period of one month after the receipt of the individual notice being separately issued. If no objection is filed within the said period of one month it shall be presumed that the owner/possessor of the property has no objection to the proposed assessment and the task of authentication of the assessment list shall be taken up as soon as the said period of one month elapses.” It is also pleaded case of the petitioners that the Haryana Urban Development Authority (for short the HUDA) has granted licences for development to number of private builders under section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975. Said licences were valid for a period of 2 years which would be extended for a period of one year during which development works including external and internal work was required to be completed. The case of the petitioners further was, that the residents are left at the mercy of the builders and government and local authorities play no role to ensure completion of external and internal development work. Even after 20 years substantial development work was incomplete and the colonies continued to be under the management of builders, wherein the residents have been compelled to pay maintenance charges. Notification declaring Municipal Council to be the Municipal CWP No. 9282 of 2010 5 Corporation has been challenged on the following grounds:- (a) That the notification is ambiguous and does not clearly specify the Municipal areas under the schedule; (b) that the schedule and the office order of zoning of municipal areas does not mention the colonizer areas such as all phases of DLF, Sun city, Sushant Lok, HudA sectors etc. (c) that the publication of the notification was not as per mandatory prescribed procedure, and that the notification was not published in local areas and in a local news paper in the local language; (d) that no objections were called before taking final decision and public at large were not given any opportunity to voice their concerns; (e) that there was no authority vested under section 3 (2) of the Act to include and then tax areas under the dominion of the colonizers. (f) that it is mandatory for the Corporation to conduct elections after conducting a door to door population survey and after delimiting wards, no elections have been conducted even after lapse of two years. It is also the case of the petitioners, that the residents in these colonizers' areas have paid for external and internal development and CWP No. 9282 of 2010 6 maintenance charges and also paying additional monthly maintenance to the builders and that the Municipal Corporation is not providing any service to these areas and therefore, the tax proposed to be imposed is arbitrary and amounts to infringement of fundamental rights and would amount to double taxation. It is also the case of the petitioners, that there is inequality amongst the class of people being taxed as there are two different types of colonizers area residents and non-colonizer areas residents, whereas one class of residents is getting municipal services, the other residents are not getting any services. Reference is also made to the order passed by the Hon'ble Supreme Court in a case where the order passed by the State Government against colonizers from collecting charges from the residents is under challenge. However, this has no relevance to the present case. Ms. Nivedita Sharma, learned counsel appearing on behalf of the petitioners challenged the notification declaring Municipal Corporation of Gurgaon primarily on the ground, that under section 3 of the Act, it is only the municipalities and the area comprised in rural area or part thereof that can be declared to be a corporation and therefore, the area under the colonizers/builders cannot be included as part of the Corporation. This plea on the face of it is liable to be noticed to be rejected. The Act defines the municipal area to mean, that peripheral area of the Corporation declared under section 3 of the Act, whereas the rural area has been defined to mean the part of municipal area which immediately before CWP No. 9282 of 2010 7 their inclusion within the municipal area was constituted within the local limits of Gurgaon but is not to include such portion thereof which by virtue of notification under section 413 ceased to be included in the rural area as defined therein. There can be only urban and rural area falling in the municipal corporation. The consent of licenced area is not known. The petitioners cannot claim to be excluded from the area of Municipal Corporation merely because the area is developed by the colonizers under the licence issued by the HUDA. The State Government while performing legislative function can always constitute a Corporation under section 3 of the Act. It was the contention of the learned counsel for the petitioners, that the impugned notification constituting Municipal corporation is liable to be quashed for want of opportunity of hearing to the residents of the area. The contention of the learned counsel for the petitioners was, that before the Corporation is constituted the residents of the area were required to be heard by issuing notice in the official gazette as well as by publication in the local newspaper. In support of this contention learned counsel for the petitioners placed reliance on the judgment of Hon'ble Supreme Court in the case of Baldev Singh & Ors. Vs. State of H.P. & Ors. AIR 1987 SC 1239, wherein it was held that whether a particular area would be declared as notified area or not under the Act, is ultimately an administrative decision and therefore, prior opportunity of hearing is required to be given to the residents of the local area even though it is not so provided under section CWP No. 9282 of 2010 8 256 of the Himachal Pradesh Municipal Act. The petitioners also placed reliance on the Division Bench judgment of this court in the case of M/s Vee Kay Oils Pvt. Ltd. Vs. State of Punjab through its Chief Secretary, Civil Secretarial, Chandigarh and Ors. 1994 (2) PLR 234, wherein Hon'ble Division Bench of this court was pleased to lay down that while exercising powers under section 5 (1) of the Punjab Municipal Act, 1911, the effective parties are entitled to hearing. Reliance was also placed on the Division Bench judgment of this court in the case of Kamaljeet Singh Vs. State of Punjab through Principal Secretary to Government of Punjab, Local Government Department 2002 (3) PLR 184. This contention of the learned counsel for the petitioners cannot be accepted in view of the law laid down by Hon'ble Supreme Court in the case of Sundarjas Kanyalal Bhathija & Ors. Vs. The Collector, Thane, Maharashtra and Ors. AIR 1990 SC 261, wherein Hon'ble Supreme Court has been pleased to lay down that establishment of a Corporation is neither executive nor administrative function but it is a legislative process and therefore, rules of natural justice are not applicable to the legislative action plenary or subordinate. The Hon'ble Division Bench of this court in the case of Bhupinder Singh Vs. Union of India 1997 (3) PLR 334, also laid down that the implementation of provisions of Municipal Act by way of an act, whereby Gram Sabha area is included into the municipal area, is not an administrative act, but is a legislative function, which does not attract the CWP No. 9282 of 2010 9 principles of natural justice. The Division Bench while deciding Bhupinder Singh's case (supra) had taken note of the judgment of M/s Vee Kay Oils Pvt. Ltd. Vs. State of Punjab through its Chief Secretary, Civil secretariat, Chandigarh and Ors. (supra). The contention of the learned counsel for the petitioners, that the notification is bad having not been published in two local news-papers, is again misconceived, as there is no requirement under the Act for issuance of any notice in the locality as contended. This requirement is only with regard to the acquisition of land under sections 4 and 6 of the Land Acquisition Act and not for declaring an area to be Municipal Corporation. The plea of the petitioners that the notification is liable to be rejected being violative of natural justice, therefore, deserves to be rejected. The learned counsel for the petitioners challenged the notice Annexure P.4 reproduced above on the plea that it is not open to the Municipal Corporation to impose tax as no service is being provided to the petitioners. This plea deserves to be rejected on more than one grounds; firstly for the reason, that for imposing the tax the principle of quid quo pro, is not applicable as no services are required to be provided for imposing the tax, Secondly, for the reason, that by way of impugned notice the Corporation has merely invited objections, if any, qua the imposition of house tax and therefore, the petitioners have liberty to file every possible CWP No. 9282 of 2010 10 objection and cannot challenge the notice by invoking writ jurisdiction. Learned counsel for the petitioners also challenged the notice on the ground, that imposition of house tax would amount to double taxation as the petitioners are paying maintenance charges to the colonizers/builders. This plea again deserves to be noticed to be rejected. The Municipal Corporation is authorised to impose tax in accordance with law and Corporation is following the due process of law. Merely because certain maintenance charges are being paid to colonizers which is subject-matter to a dispute, cannot be a ground to quash notice inviting objections against proposal to impose house-tax. An attempt was also made to challenge the inaction of the builders in not completing external and internal development works. No notice of the said contention can be taken as neither builders are party nor this can be a ground to challenge the formation of corporation or to challenge notice inviting objections regarding imposition of house tax. Thus, finding no merit in the writ petition, it is ordered to be dismissed in limine. (Vinod K.Sharma) 1.07.2010 Judge rp