HON’BLE SHRI G.S. SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE C.V.NAGARJUNA REDDY Writ Petition Nos.17524, 17525 and 18249 of 2005 Writ Petition No.17524 of 2005 Between: Mohd. Moazam Khan and 8 others. …Petitioners. And Government of Andhra Pradesh, represented by its Principal Secretary, Municipal Administration & Urban Development (Elec.II) Department, Secretariat, Hyderabad and others. …Respondents. Writ Petition No.17525 of 2005 Between: Asaduddin Owaisi … Petitioner. And Government of Andhra Pradesh, represented by its Principal Secretary, Municipal Administration & Urban Development (Elec.II) Department, Secretariat, Hyderabad and others. …Respondents. Writ Petition No.18249 of 2005 Between: B.S.Subash Reddy … Petitioner. And Government of Andhra Pradesh, represented by its Principal Secretary, Municipal Administration & Urban Development (Elec.II) Department, Secretariat, Hyderabad and others. …Respondents. Counsel for the petitioners In Writ Petition Nos. 17524 and 17525 of 2005: Shri S. Ramachandra Rao, Senior Advocate, assisted by Shri K.R. Prabhakar Counsel for the petitioner in Writ Petition No.18249 of 2005: Sri J.Chandraiah for Sri Gokula Rama Rao. Counsel for the respondents: Sri C.V.Mohan Reddy, Advocate General, assisted by Sri A. Satya Prasad, Special Government Pleader. . :: O R D E R :: January 31, 2007 Per G.S. SINGHVI, C.J. Whether the proposed inclusion of L.B.Nagar, Gaddiannaram, Uppal Kalan, Kapra, Alwal, Qutubullapur, Malkajgiri, Kukatpally, Serilingampalli, Rajendernagar, Patancheru and Ramachandrapuram Municipalities and Shamshabad, Mamidipalli, Satamarai, Jalapally, Mankhal, Almasguda/ Tukkuguda, Sardarnagar and Ravarala Gram Panchayats located around Hyderabad in the limits of the Municipal Corporation of Hyderabad for the purpose of constituting Greater Hyderabad Municipal Corporation is ultra vires the provisions of Articles 243E, 243P, 243Q, 243U, 243ZF and 371-D of the Constitution of India and violative of Andhra Pradesh Districts (Formation) Act, 1974 is the common question of law, which arises for determination in these petitions ﬁled for striking down Sections 3 and 679-D of the Hyderabad Municipal Corporation Act, 1955 (for short, ‘the 1955 Act’) and notiﬁcations issued by the Government of Andhra Pradesh vide G.O.Ms.Nos.703 and 704, Municipal Administration and Urban Development (Elec.II) Department, dated 20-7-2005. In Writ Petition No.17524 of 2005, the petitioners have also prayed for issue of a mandamus to the respondents to conduct elections to Rajender Nagar Municipality and in all suburban municipalities which are sought to be merged in Greater Hyderabad Municipal Corporation. In Writ Petition No.17525 of 2005 (amended), the petitioner has further prayed for striking down Section 246(1) of the Andhra Pradesh Panchayat Raj Act, 1994 (for short, ‘the 1994 Act’) and Sections 3-A and 62 of the Andhra Pradesh Municipalities Act, 1965 (for short, ‘the 1965 Act’). Three of the nine petitioners, who have ﬁled Writ Petition No.17524 of 2005, are Members of Andhra Pradesh Legislative Assembly, ﬁve are Corporators from diﬀerent wards of the Municipal Corporation of Hyderabad (for short, ‘the Corporation’) and one is ex- Vice-Chairman of Rajender Nagar Municipality. Writ Petition No.17525 of 2005 has been ﬁled by Sri Asaduddin Owaisi, who has been a Member of the Legislative Assembly and is presently a Member of Parliament from Hyderabad Parliamentary Constituency and Writ Petition No.18249 of 2005 has been ﬁled by Sri B.Subash Reddy, Chairman of Gaddiannaram Municipality, Ranga Reddy District. For deciding the aforementioned question, it will be useful to brieﬂy notice the background in which the impugned G.Os. have been issued. The Hyderabad Municipality was ﬁrst constituted in 1869 with an area of about 55 kms. At that time, the population of Hyderabad was 3.5 lakhs. In 1886, a separate Municipality known as “Chaderghat Municipality” was constituted for the new city area. In 1921, the area of Hyderabad Municipality was extended to about 84 kms. After 10 years, Secunderabad Town Improvement Trust was constituted. Simultaneously, Hyderabad and Chaderghat Municipalities were merged. In 1933, Hyderabad Municipal Act was enacted and the existing municipality was conferred the status of a municipal corporation. In 1937, a separate municipality was constituted with the name “Jubilee Hills Municipality” for the areas of Banjara Hills, Jubilee Hills etc. In 1945, Secunderabad Municipality was constituted. In 1947, the limits of Secunderabad Municipality was extended by including the adjoining areas. In 1948, the Jubilee Hills Municipality was merged with Hyderabad Municipal Corporation. In 1951, Secunderabad Municipality was upgraded and converted into Corporation. In 1960, the Secunderabad Municipal Corporation was merged with Hyderabad Municipal Corporation. At present, Hyderabad is the largest city in the State of And hra Pradesh in terms of the area and population. It has been recognized as a Metropolis and given the status of Mega-City by the Central Government. The expansion and growth of Hyderabad started in the year 1950. After formation of the State of Andhra Pradesh in 1956, Hyderabad was chosen as its capital. In last ﬁve decades, there has been rapid industrialization in public as well as private sectors and a large number of educational, research and training institutions have been set up in and around the city of Hyderabad. In addition, there is a very big Army Cantonment in the twin cities of Hyderabad and Secunderabad. In last 15 years, the city has been totally transformed on account of massive development in the ﬁeld of information technology and bio-technology attracting investments from various parts of the world. Almost all big players in these ﬁelds have set up their establishments and units in what is now known as Cyberabad or Hi-Tech city. This has resulted in creation of huge employment opportunities and people belonging to younger generation have come from diﬀerent parts of the country and settled in the city of Hyderabad. To cater the demand of housing etc., large scale townships and markets have come up around the city of Hyderabad. The population of Hyderabad Urban Agglomeration increased from 18 lakhs in 1971 to about 57 lakhs as per the Census of 2001. The present estimated population has crossed the figure of 60 lakhs. With a view to meet the challenges posed by rapid industrialization and increase in population, the Government of Andhra Pradesh took a policy decision in 1999 to include the areas of certain Gram Panchayats (most of them are now Municipalities), which are contiguous to the city of Hyderabad into the limits of the Municipal Corporation of Hyderabad. Accordingly, G.O.Ms.No.189, dated 20-4-1999 was issued under Section 3 of the 1955 Act and objections/suggestions were invited from the public as well as public representatives. The same was challenged in Writ Petition No.9247 of 1999. By an order dated 28-4- 1999, this Court admitted the writ petition and stayed all further proceedings. During the pendency of the writ petition, the State Government withdrew G.O.Ms.NO.189, dated 20-4-1999 and, on that account, the writ petition was disposed of as infructuous. After a gap of six years, the State Cabinet in its meeting held on 1-7-2005 approved the revised proposal for creation of Greater Hyderabad by including the areas contiguous to Hyderabad city in the limits of the Municipal Corporation of Hyderabad. For this purpose, G.O.Ms.Nos.703 and 704 dated 20-7-2005 were issued. By the ﬁrst G.O., the Commissioner of the Municipal Corporation of Hyderabad was asked to place the proposal before the Council and submit its views/objections/suggestions to the government. By the second G.O., notice was given to the members of public under Section 3 (3) of the 1955 Act for inviting objections/ suggestions. Simultaneously, Memo No.12417/Ele.II/2005 dated 20-7-2005 was issued to various municipal bodies under Section 3A(1)(a) of the Andhra Pradesh Municipalities Act, 1965 (for short, ‘the 1965 Act’) for their abolition and inclusion of their area in the Hyderabad Municipal Corporation. The concerned Municipalities were called upon to communicate their views/objections/ suggestions. For the sake of convenient reference, the contents of G.O.Ms.No.703, dated 20-7-2005 are reproduced below: MUNICIPAL ADMINISTRATION & URBAN DEVELOPMENT (ELE.II) DEPARTMENT G.O.Ms. No. 703 Dated: 20th July, 2005 ORDER: 1. Hyderabad is the largest urban agglomeration both in terms of population and area in the State of Andhra Pradesh. It is recognised as a metropolis and given the status of a Mega City by the Central Government. The transformation of Hyderabad as a metropolis began in the late 1950s with the formation o f Andhra Pradesh State and Hyderabad becoming its capital. Large scale industrialisation, particularly in the public sector, took place in the early of 1960s. In the late 1960s and early 1970s a large number of important educational, research and training institutions were set up in and around Hyderabad City. Since mid-1990s, massive developments have been taking place in the areas around Hyderabad City in the ﬁeld of information technology, bio-technology, sports infrastructure, etc. creating new employment opportunities and thereby, triggering expansion of townships. 2. The growth of Hyderabad has not only been on account of it’s being the capital city but also due to it’s strategic location, rapid industrialization and availability of suitable lands in plenty in and around the Hyderabad city. Thus, Hyderabad continues to oﬀer great opportunities for expansion and concentration of activities and continues to oﬀer opportunities for increased employment and in manufacturing and support services especially in the tertiary sector. Population of Hyderabad urban agglomeration has been substantially increasing over the last one decade. The massive growth in population has put additional strain on the existing infrastructure within the area of Hyderabad urban agglomeration. 3. The Hyderabad metropolis has several diverse activities such as: a) State Capital and Administrative Centre; b) Defence Centre; c ) Educational, Research & Institutional Centre; d) Industrial Centre; e) IT Centre; f) Regional Centre of Trade & Commerce; g) Transportation Centre and Air transit hub; h) Health and Medical centre; i) Cultural and Tourism Centre. 4. The population of the Hyderabad Urban Agglomeration registered an increase of about 216 % in the last 30 years, i.e, it rose from 18 lakhs in 1971 to about 57 lakhs in 2001, as per the Census. The urban agglomeration area increased from about 200 sq km in 1971 to about 700 sq km. The population of the Hyderabad Urban Agglomeration is expected to increase to 136 lakhs by 2021 with an overall average density of about 200 persons per hectare. 5. This has necessitated the demand for services and also resulted in attendant problems like intensity of land use, densiﬁcation, pressure on housing, demands on the road network and transportation systems, availability of water and eﬃciency of the system of disposal of sewage and solid waste. The demand for services have both city- wide as well as local ramifications. 6. The overall city level systems like major road network, water supply, sewerage and drainage system network, urban transport system, environment management system, etc. cannot be done in compartments or locally and need to be tackled in an integrated manner by an appropriate civic management structure with proper planning, resource mobilisation and technical capabilities. The existing separate local bodies are unable to cope up with the above. Therefore there is a need to strengthen the civic administration by reorganizing the existing set up by having a single entity with a clear cut organisational system to meet the challenges thrown up by such fast pace of growth of Hyderabad and its urban spread and to manage in an integrated manner both the metropolitan and community level developmental needs. 7. Keeping in view the above, the Government have decided to constitute the Greater Hyderabad Municipal Corporation by merging the surrounding 12 municipalities and 8 Gram Panchayats around Hyderabad with Municipal Corporation of Hyderabad with a view to: a) Facilitating improved and high standard of civic services; b ) Providing better civic administrative mechanism; c) Ensuring better planning and focussed development of the Mega City; d) equitable devolution of ﬁnances and utilisation of resources; e) Ensuring uniform enforcement; f) To make the city internationally competitive with world class infrastructure and services. 8. Hence it is proposed to include the following surrounding 12 municipalities and 8 Gram Panchayats located around Hyderabad in the limits of Municipal Corporation of Hyderabad to constitute the Greater Hyderabad Municipal Corporation: Municipalities: 1. L.B.Nagar 2. Gaddiannaram 3. Uppal Kalan 4. Kapra 5. Alwal 6. Qutubullapur 7. Malakajgiri 8. Kukatpally 9. Seri Lingampalli 10. Rajendranagar 11. Patancheru 12. Ramachandrapuram Gram Panchayats: 1) Shamsabad 2) Mamidipalli 3) Satamarai 4) Jalapally 5) Mankhal 6) Almasguda/Tukkuguda 7) Sardarnagar 8) Ravarala 9. Sub-section (2) of section 3 of the Hyderabad Municipal Corporation Act, 1955 empowers the Government to alter the limits of the City by including other areas after consulting with the Hyderabad Municipal Corporation. 10. Therefore, under sub section (2) of section 3 of Hyderabad Municipal Corporation Act, 1955, the Council of Hyderabad Municipal Corporation are requested to state their views on the above proposal of the Government to include the areas covered by the surrounding 12 Municipalities and 8 Grampanchayats referred to in para 8 above with in the limits of Municipal Corporation of Hyderabad to form Greater Hyderabad Municipal Corporation. 11. The Commissioner, Municipal Corporation of Hyderabad is requested to place the matter before the Council and obtain the views/ objections / suggestions, if any, on the proposal and communicate the same to the Government within a period of 15 days from the date of receipt of this notice. If no views / objections / suggestions are received from the Municipal Corporation of Hyderabad within the above stipulated time, it will be construed that the Municipal Corporation of Hyderabad has no remarks to oﬀer on the proposal of the Government and further action will be taken basing on the material available with the Government. 12. The Commissioner, Hyderabad Municipal Corporation shall publish a copy of this G.O. in the Notice Board of the Municipal Corporation of Hyderabad for information to the Public.” The petitioners have averred that in their capacity as representatives of the public, they have the constitutional and legal right to ventilate the grievances of the people against the creation of Greater Hyderabad Municipal Corporation by including the areas of 12 Municipalities and 8 Gram Panchayats in the Municipal Corporation of Hyderabad. They have challenged the impugned legislative provisions and G.Os. on the following grounds: 1) The State does not have the legislative competence to either abolish or dissolve a constitutional entity i.e. the Municipality or Gram Panchayat for establishing the proposed Greater Hyderabad Municipal Corporation. 2) The impugned G.Os. are violative of the provisions contained in Part IX and IX-A of the Constitution of India because the same have the effect of abolishing 12 Municipalities and 8 Gram Panchayats, which are constitutionally recognized as units of self- government. 3) The impugned G.Os. are violative of Article 371-D of the Constitution and the Presidential Order made thereunder and the provisions of the Andhra Pradesh Districts (Formation) Act, 1974 (for short, ‘the 1974 Act’). 4) Sections 3 and 679-D of the 1955 Act and Sections 3- A and 62 of the 1965 Act are ultra vires the provisions of the Constitution. In the aﬃdavits ﬁled by Smt.Yasmin Sultana (Arshiya) (petitioner No.4 in Writ Petition No.17524 of 2005 and Shri Asaduddin Owaisi (petitioner in Writ Petition No.17525 of 2005), the deponents have generally averred that the term of 12 Municipalities and Gram Panchayats, which are sought to be merged in Greater Hyderabad Municipal Corporation, had ended in the month of March and August 2005 respectively and as per the mandate of Article 243U and 243K, elections were to be held before the expiry of their term, but the State Election Commission did not take steps in that direction and thereby enabled the State Government to manipulate the appointment of Special Oﬃcer in utter violation of the scheme of the provisions contained in Parts IX and IX-A of the Constitution. The deponents have further averred that even though the elected body of Hyderabad Municipal Corporation will complete its ﬁve years term after 20 months, the State Government is taking active steps to dissolve it by resorting to Section 679-D of the 1955 Act and if that happens, the elected representatives will be deprived of their legitimate right to hold oﬃce for full ﬁve years. In his aﬃdavit, Shri Asaduddin Owaisi has referred to the case of Ramachandrapuram, which was till recently a Gram Panchayat and was sought to be converted into Municipality in violation of the mandate of Article 243E and averred that now the same is being abolished by way of merger in Greater Hyderabad Municipal Corporation. In paras 10 and 16 of his aﬃdavit, Shri Owaisi has highlighted the disadvantages and adverse impact of the creation of the Greater Hyderabad Municipal Corporation in the following words: “10. I submit that the proposed Greater Hyderabad would result in threefold enhancement of taxes with no corresponding enhanced or increased civic amenities. The resultant problems by this creation of Greater Hyderabad are as follows: There is an opinion being expressed that in view of Greater Hyderabad the burden of taxes on the people living in Panchayats and Municipalities will deﬁnitely be more. In fact, there are diﬀerent procedures being adopted for property tax assessment in corporations, municipalities and panchayats. There is no similarity among these three. Moreover, there are diﬀerences in assessment of property tax among these three. In panchayats on the basis of unit, property tax is being assessed. In municipalities, tax is ascertained on the basis of square metre. In corporations, tax is collected based on square foot. In municipalities, based on the areas tax is being collected from Rs.9 to Rs.11 per square metre. In Pancyahats, based on the units property tax is being collected ﬁxing rates for old constructions and new constructions separately. The same is being collected in corporations from Rs.0.60 to Rs.1 per sft. Even in this, separate rates are ﬁxed for residential constructions and commercial purposes. If the municipalities and panchayats come under the purview of the proposed Greater Hyderabad Municipal Corporation, it will be required to implement uniform property tax system. Even the authorities are in agreement that there will be a burden on the people living in the areas of panchayats and municipalities because of creation of this Greater Hyderabad. Because of this creation of Greater Hyderabad, tax burden will be more from three to four times of the existing panchayat and municipal property taxes. Owing to the creation of Greater Hyderabad, there will be every chance of burdening the people living in existing panchayat and municipal areas with higher water tax. Further, there are suﬃcient doubts about providing drinking water to all the people with the present supply position of the water. 16. I submit that being part of Greater Hyderabad would mean more taxes for residents of the existing 12 municipalities as well as Hyderabad Municipal Corporation. These residents would have to pay more professional tax, trade licence fees, town planning fees, betterment charges and new taxes such as impact fees. The property tax would also go up steeply. The registration charges and stamp fees would also go up steeply since the market values in the Greater Hyderabad limits would be revised upwards by leaps and bounds. The residents would end up paying more taxes and revenues for inadequate or non-existent civic amenities and facilities. I submit that Greater Hyderabad would be spread over an area of 725 sq. kms. with a population of 55 lakh (as per 2001 census) as against the existing Hyderabad Municipal Corporation with an area of 172 sq. kms. and population of 36.12 lakh. Greater Hyderabad would bring A1 City and Mega City status to Hyderabad. This may mean not only a higher quantum of taxation, but also higher cost of living for the residents. The A1 City status would beneﬁt the government employees in terms of city compensatory, house rent and dearness allowances but what about the common man? In paragraphs 6 and 7 of his aﬃdavit, Shri S.P. Singh, Secretary to Government in Municipal Administration and Urban Development Department has spelt out the reasons for the decision of the government to constitute Greater Hyderabad Municipal Corporation. These paragraphs are as under: “6. I submit that Hyderabad metropolis has several diverse activities and functions to perform as State Capital, Educational, Research and Institutional Center, Defence Center, I.T. Center, Regional Center of Trade & Commerce, Industrial Center, Air Transit Hub, Cultural and Tourism Center and International Sports Hub. Such diverse and large scale activities have led to accelerated growth in many respects creating large scale employment opportunities which in turn has led to phenomenal growth in the population and resultant development of new residential areas within the Hyderabad Agglomeration. It is submitted that the population of Hyderabad Urban Agglomeration registered an increase of about 216% in the last 30 years, i.e. it rose from 18 lakhs in 1971 to about 57 lakhs in 2001, as per the Census. The Urban Agglomeration area increased from about 200 sq. kms. in 1971 to 778.17 sq. kms. in 2001. The population of Hyderabad Urban Agglomeration is expected to increase to 136 lakhs by 2021 with an overall average density of about 200 persons per acre. It is submitted that Hyderabad is one of the fastest growing Metropolitan Cities and accounts for 10% of IT exports in the country. At the same t ime, Hyderabad lags behind cities like Mumbai, Delhi, Chennai and Kolkata on economic infrastructure and social indicators. For example, the percentage of area covered by roads in Hyderabad is 6%, vis-à-vis Mumbai at 10%, Delhi at 18%, and Kolkata at 12%. T hough Hyderabad is expected to be one of the top 10 Global Cities in terms of population by 2025, it lags behind several cities of developing countries. The growth rate of population is more prominent in the surrounding Municipalities, vis-à-vis the Municipal Corporation o f Hyderabad area. For example, during 1981-2001, the population in MCH area grew at 19% as compared to the growth between 52% to 103% in the surrounding Municipalities. Most of the residential and industrial developments during the last two decades have taken place in the surrounding municipal areas, but the pressure in terms of service delivery and on the administration is more on the MCH area. Further, I submit that infrastructure is a key driver for economic growth and quality of life. It is a critical component in making a city attractive and a safe place to live. However, the variation in water supply across the metropolis is alarming. The variation is in the range of 30% to 83% on the coverage front. While the water supply coverage is 83% within MCH area whereas in the surrounding Municipalities it varies from 30% to 50%. Water supply is delivered once in four days in few surrounding municipalities. The principal growth corridors around Hyderabad have lower water supply coverage. For example, Uppal Municipality with the highest growth rate has the lowest water supply coverage. The existing sewerage system covers only 62% of the MCH area, but in the surrounding Municipalities, mostly the sewerage and storm drain disposal is through open drains or on the land itself. 7. Further, I submit that the traﬃc growth in Hyderabad is driven by concentration of substantial economic activities around the MCH area, but the transportation infrastructure is very weak in the surrounding Municipalities leading to congestion and environmental problems. Hyderabad Agglomeration area is functionally and spatially fragmented resulting in signiﬁcant institutional challenges, i.e. the current coordination arrangement is not comprehensive enough to achieve the service delivery improvements. The increase of population also resulted in attendant problems like intensity of land use, densiﬁcation, pressure on housing, demands on the road network and transportation systems, availability of water and eﬃciency of the system of disposal of sewage and solid waste. City level systems like major road network, water supply, sewerage and drainage system network, urban transport system, environment management system etc. cannot be done in an appropriate civic management structure with proper planning, resource mobilization and technical capabilities. I submit that the existing separate local bodies are unable to copy up with the above increased demands and because of multiplicity of agencies and non-alignment of accountability citizens are not able to relate to the service providing agencies. Therefore, it has become necessary to strengthen the civic administration by reorganizing the existing set up by having a single entity with a clear cut