Kamal Jora vs State Of Uttarakhand & Anr

3. The relevant facts very briefly are that the appellant was elected as the Chairman of the Municipal Council, Haridwar, in May, 2008. When he was functioning as the Chairman of the Municipal Council, Haridwar a notification was issued on 20.05.2011 by the Government of Uttarakhand notifying that the Governor of Uttarakhand in exercise of powers under Section 3(2) of the Uttar Pradesh Municipal Corporations Act, 1959 (for short ‘the Act’) as applicable in Uttarakhand read with Article 243Q(2) of the Constitution and Section 8-AA of the Act has dissolved the Municipal Council, Haridwar, and appointed the District Magistrate, Haridwar, as Administrator for administering the area of the Municipal Corporation, Haridwar. The appellant filed Writ Petition No.1031 of 2011 on 20.05.2011 in the High Court of Uttarakhand, challenging the aforesaid notification mainly on the ground that no opportunity of hearing was given to the Municipal Council, Haridwar before the notification was issued and the learned Single Judge of the High Court who heard the writ petition held in his order dated 09.06.2011 that the dissolution of the Municipal Council, Haridwar was done and the Administrator was appointed to administer the areas of Municipal Corporation, Haridwar under Section 8-AA of the Act without affording any opportunity of hearing or a show cause to the Municipal Council and hence the notification dated 20.05.2011 was in clear violation of the Constitution of India. By the order dated 09.06.2011, the learned Single Judge, therefore, allowed the writ petition and quashed the notification dated 20.05.2011 and directed the District Magistrate, Haridwar to handover the charge forthwith to the elected representatives of the Haridwar Municipality.

5. Soon after the judgment dated 23.06.2011 of the Division Bench of the High Court, the Government of Uttarakhand issued a public notice dated 29.06.2011 stating therein that in the opinion of the State Government, the small urban area of the Municipal Council, Haridwar needs to be converted into a larger urban area and consequently to Municipal Corporation, Haridwar. By the public notice dated 29.06.2011, the Chairman and the Councilors of Municipal Council, Haridwar and the entire public residing in the urban area of the Municipal Council, Haridwar were invited to give their objections and suggestions. The public notice dated 29.06.2011 also stated that on 13.07.2011, a hearing would be conducted by the Principal Secretary, Urban Department, Government of Uttarakhand between 1.30 p.m. to 4.00 p.m in which persons will be given an opportunity of personal hearing on their objections and suggestions and only thereafter the final decision will be taken by the State Government. By a corrigendum dated 08.07.2011 issued by the State Government, the date of hearing was altered to 16.07.2011. The appellant filed his objections before the Director of Urban Development in July, 2011 and also stated in his objection that he be given a personal hearing on his objections. Thereafter, on 21.07.2011, the Government of Uttarakhand issued two notifications. In one notification dated 21.07.2011, it was stated that the Governor was pleased to notify for overall development of Haridwar city the conversion of existing smaller urban area into a larger urban area in exercise of powers under Section 3(2) of the Act read with Article 243Q(2) of the Constitution and to further notify that the area included in the larger urban area would be the total of the area of Municipal Corporation, Haridwar. In the other notification dated 21.07.2011, it was stated that the Governor has directed under Section 8-AA(1) of the Act that the existing Municipal Council, Haridwar would stand dissolved from the date of issuance of the notification and the District Magistrate, Haridwar be appointed the Administrator for the administration of the larger urban area of the Municipal Corporation, Haridwar.

6. Aggrieved by these two notifications dated 21.07.2011, the appellant again filed Writ Petition (C) No.1533 of 2011, contending that no hearing was granted to the Municipal Council, Haridwar before the Municipal Council was dissolved and the Administrator was appointed for the larger urban area of the Municipal Corporation and hence the two notifications were liable to be quashed. The learned Single Judge by his order dated 15.12.2011 allowed the writ petition and quashed the two notifications dated 21.07.2011. Aggrieved, the State of Uttarakhand and the District Magistrate, Haridwar filed Special Appeal No.289 of 2011 before the Division Bench of the High Court and the Division Bench of the High Court held in the impugned judgment dated 21.12.2011 that an opportunity of being heard was given to all persons who were interested in the decision making process of the Municipal Council, Haridwar. By the impugned judgment, the Division Bench of the High Court therefore allowed the appeal and set aside the order of the learned Single Judge and dismissed the writ petition. Aggrieved, the appellant has filed this appeal.

13. At the time of hearing of this appeal, we were inclined to consider the other contention of Mr. Hansaria that the State Government must form an opinion that until the due constitution of the Municipal Corporation for an area, “it is expedient” to dissolve the Municipal Council from a specified date and to direct that all powers, functions and duties of the Corporation shall as from the specified date, be vested in and be exercised, performed and discharged by the Administrator appointed by the State Government in view of the language of sub-section (1) of Section 8-AA of the Act. But we find that this ground was not raised in the Writ Petition before the High Court nor raised in the special leave petition before this Court. We further find that pursuant to the two notifications dated 21.07.2011, the elections to the Municipal Corporation have been notified to be held and completed by 30.04.2013. Hence, even if the appellant succeeds on this point, we cannot direct restoration of the Haridwar Municipality after the constitution of the Municipal Corporation, Haridwar. For these reasons, we refrain from considering this question in this appeal and leave this question open to be decided in some other appropriate case.

14. In the result, we do not find any merit in this appeal and we accordingly dismiss the same, but without costs.