IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 288 of 2011 State of Uttarakhand and others ….…… Appellants. Versus Dinesh Randhawa and others ………. Respondents. Mr. S.N. Babulkar, Advocate General with Mr. J.P. Joshi, Chief Standing Counsel for the State / appellants. Mr. Sharad Sharma, Senior Advocate with Mr. Vipul Sharma, Advocate for the respondents. With Special Appeal No. 289 of 2011 State of Uttarakhand and another ….…… Appellants. Versus Kamal Jora ………. Respondent. Mr. S.N. Babulkar, Advocate General with Mr. J.P. Joshi, Chief Standing Counsel for the State / appellant No. 1. Mr. V.K. Kohli, Senior Advocate with Mr. Subhash Tyagi, Advocate for appellant No. 2. Mr. Lok Pal Singh, Advocate for the respondent. Date of Judgment: 21.12.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C.J. (ORAL) On 11th May, 1916, the Uttar Pradesh Municipalities Act, 1916 came into effect; whereas sometimes in 1959, Uttar Pradesh Municipal Corporation Adhiniyam, 1959 came into operation. With effect from 1st June, 1993, Part IX A was inserted in the Constitution of India. Part IX A contains Article 243P to Article 243ZG. In terms of Clause (e) of Article 243P, “Municipality” means an institution of self-government constituted under Article 243Q. In 1995, accordingly, the meaning of the word “Municipality” was altered in the Act by stating that “Municipality” means an institution of self-government referred to in Clause (e) of Article 243P of the Constitution of India. Similarly, in 1995, the meaning of Municipal Corporation was changed in the Adhiniyam in line with the meaning of the same as provided in Article 243Q. Article 243Q provides for constitution of Municipalities. It directs the State to constitute a Nagar Panchayat for a 2 transitional area, that is to say, 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, in accordance with the provisions of Part IX A of the Constitution. The said Article authorizes the State Government to denote a transitional area, a smaller urban area and a larger urban area, having regard to the population of the area, the density of the population therein, the revenue generated, the percentage of employment in non- agricultural activities, the economic importance or such other factors as it may deem fit. 2. The State Government issued a notification dated 8th October, 2010 and thereby, provided that if the population of an urban area is more than 1,25,000, the said area shall have a Municipal Corporation. Having noted that the population of the urban areas, known as Haldwani and Hardwar, has increased beyond 1,25,000, the State Government issued notifications, on 20th May, 2011, upgrading the Municipal Council of Haldwani and Municipal Council of Hardwar to Municipal Corporation of Haldwani and Municipal Corporation of Hardwar. At the same time, it passed orders and thereby, appointed administrators in the office of the then Municipal Council of Haldwani and Municipal Council of Hardwar. This action on the part of the State Government was subject matter of two writ petitions filed in this Court. This Court held in those writ petitions that in view of Section 8-AA of the Uttar Pradesh Municipal Corporation Adhiniyam, 1959, by reason of upgradation of a Municipal Council to a Municipal Corporation, Municipal Council do not stand dissolved automatically; the same may be dissolved. Apropos that, the Court further held that since Article 243U provides for a reasonable opportunity of being heard to the Municipality before its dissolution, it should be deemed to be ingrained in Section 8-AA of the said Adhiniyam that before effecting dissolution by upgradation, Municipal Council is entitled to a reasonable opportunity of being heard. This Court further held that in as much as no such opportunity was given, the orders dated 20th May, 2011 were not sustainable. However, the decision of this Court became effective only on 14th July, 2011 and, accordingly, the impediment, created by the orders dated 20th May, 2011 for the Municipal 3 Council of Haldwani and Municipal Council of Hardwar, to function came to an end, since 14th July, 2011, whereupon there was no impediment on the part of the said Municipal Councils to function as they were otherwise entitled to as such Municipal Councils. The fact, however, remains that by 16th July, 2011, the charges of administration of the said Municipal Councils were given up by the District Magistrates, who were appointed as administrators by the orders dated 20th May, 2011. On 18th July, 2011, Chairman of the Municipal Council of Haldwani acknowledged, in writing, that he has assumed charge. There is no such document from the Chairman of the Municipal Council, Hardwar. 3. In the meantime, on 29th June, 2011, a notice was published in the newspaper, whereby it was indicated that an opportunity of hearing is being accorded to the Chairman of Municipal Council, Haldwani, Ward Members of the said Municipal Council and the people, residing within the territory of the said Municipal Council, in as much as a decision has been taken to upgrade Municipal Council, Haldwani into Municipal Corporation, Haldwani and if they seek to object to the said proposal, they may appear and be heard at Dehradun on 13th July, 2011. On 8th July, 2011, a corrigendum to the said notice was issued and thereby, the venue of hearing was changed to Haldwani and at the same time, the date of hearing was also altered to 17th July, 2011. In terms thereof, hearing was given on 17th July, 2011 and thereafter, on 21st July, 2011, a notification was issued upgrading the Municipal Council, Haldwani to Municipal Corporation, Haldwani. A similar notice dated 29th June, 2011 was issued in relation to Municipal Council, Hardwar and by the corrigendum dated 8th July, 2011, the date of hearing was altered to 16th July, 2011. Again, on 21st July, 2011, a notification was issued and thereby, Municipal Council, Hardwar was upgraded to Municipal Corporation, Hardwar. 4. By two separate writ petitions, these notifications, issued on 21st July, 2011, were assailed by the Chairmen of the Municipal Councils of Haldwani and Hardwar and by their Ward Members. Principally, they contended that the Municipal Councils have not been given an opportunity of hearing, in as 4 much as the notices do not suggest that the Municipal Councils are being given an opportunity of hearing. This contention has been upheld by the judgment and order under appeal, holding that the notices dated 29th June, 2011 do not indicate that an opportunity of hearing is being given to the Municipal Councils. It has further been held that reasonable opportunity of being heard has not been given, in as much as the Chairman of Municipal Council, Haldwani could assume charge of Municipal Council, Haldwani only on 18th July, 2011. 5. Before we proceed further to consider the respective arguments of the parties, it would be appropriate on our part to record that in none of the petitions, it was contended that the population in the urban areas, within the Municipal Councils in question, was less than 1,25,000. It was not contended in any of the petitions that in as much as charge of the Municipal Councils could not be assumed before the date of hearing, namely, 17th July, 2011, the writ petitioners, either collectively or individually, were prevented from placing any material fact for consideration at the hearing. 6. The contention of the petitioners, as it appears to us, was that on 29th June, 2011, the State could not issue a notice of hearing, and that, the notice of hearing was not given to Municipal Councils. The first contention was on the basis that the Court’s order of stay was still then in operation. The fact remains that the earlier orders of the State Government dated 20th May, 2011, upgrading the Municipal Councils to Municipal Corporations, were set aside on 23rd June, 2011, which order was stayed by the Division Bench and the said stay order continued till 13th July, 2011. There was no order of status quo. Therefore, in law, until 13th July, 2011, the order of the Government dated 20th May, 2011 was still alive by reason of the stay granted by the Court. Still then, there was a pronouncement by the writ Court, affirmed by the appellate Court, that the orders of the Government dated 20th May, 2011 are not sustainable. In such circumstances, if steps had been taken on 29th June, 2011 to discharge obligation of giving hearing, as was pointed out by the Court, it cannot be said that such steps could not be taken by the State. The fact remains that the hearing was given on 17th July, 5 2011, when, by reason of the orders of the Court, Municipal Councils were in existence. 7. True, notices in the instant case were not addressed to the Municipal Councils. But, as it appears to us, the object of the said notices was only to give a reasonable opportunity of being heard to the Municipal Councils. 8. In terms of Article 243P of the Constitution, “Municipality” is an institution of self-government constituted under Article 243Q of the Constitution and as provided in Article 243Q, a Municipal Council for a smaller urban area is a Municipality. Article 243R of the Constitution deals with composition of Municipalities. In sub-Article (1) of Article 243R, it provides that all the seats in a Municipality shall be filled by persons chosen by direct election form the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. Sub-Article (2) of Article 243R authorizes the State Government to provide, by law, for the representation in a Municipality of the persons named therein, with a rider that they shall have no right to vote in the meetings of the Municipality, signifying that those persons shall have no voice in the decision-making process of the Municipalities. By reason of composition of the Municipalities, as provided in Article 243R of the Constitution, it is clear that Municipal Councils are juristic entities and they can only be represented by those mentioned in Article 243R(1) of the Constitution. When an opportunity of hearing is given to a Municipality, it is the people, who are entitled to compose the Municipality, are alone entitled to represent the Municipality. In the instant case, by the notification, those persons, who had voice in the matter of decision-making process of the Municipal Councils, were specifically invited for having an opportunity of being heard. Therefore, the requirement of the proviso to sub-Article (1) of Article 243U, read with the obligations contained in Section 8-AA of the said Adhiniyam, had been duly complied with. It is not the contention, in any of the writ petitions, that any of the people, who was invited, was, in any manner, prevented from obtaining a reasonable opportunity of being heard. 6 9. We, accordingly, find no force in the writ petitions. As such, while we allow the appeals, set aside the judgment and order under appeals and dismiss the writ petitions. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) 21.12.2011 21.12.2011 Amit