Kulraj Kataria v. State of Haryana & Ors.

Present:- Mr. S.C. Kapoor, Senior Advocate with Mr. Harminderjit Singh, Advocate for the petitioners. Mr. H.S. Hooda, Advocate General, Haryana with Mr. Sudhir Makkar, Sr. D.A.G. Haryana. CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JASWANT SINGH JASWANT SINGH J. This order shall dispose of CWP No.10712 and 10720 of 2008 CWP No.10720 of 2008 -2- wherein challenge has been laid to the notification dated 2.6.2008 (Annexure P/1) issued by the Government of Haryana for forming a Corporation known as Municipal Corporation, Gurgaon in place of Municipal Council, Gurgaon, on the ground of non-inviting of objections and without giving any opportunity of hearing to the inhabitants of the erstwhile Municipal Council, Gurgaon, with a further prayer for directing non-interference in the working of the Municipal Council Gurgaon till

2010. Since common questions of facts and law are involved in both these petitions, hence with the consent of counsel for the parties both these cases are being disposed of by this common order. However, facts have been taken and dealt with from CWP No.10720/2008. Briefly stated, the facts are that election of Municipal Council, Gurgaon took place on 16.4.2005 and the petitioner was nominated as a Member on 12.9.2005. It is stated that term of the Municipal Council, Gurgaon was to expire in 2010. It is further stated that earlier limits of Municipal Council, Gurgaon were extended to include the areas of Village Sukhrali and Village Gurgaon vide notification dated 20.6.2001 (Annexure P/3) and as a result thereof the total population within the limits of Municipal Council, Gurgaon had risen to 2,01,026 (as depicted in Annexure P/4). It is also stated that a meeting of the Commissioner, Gurgaon Division, Gurgaon, Deputy Commissioner, Gurgaon and Administrator HUDA and the President, Municipal Council, Gurgaon had been called for

4.1.2008 by the Director, Urban Local Bodies, Haryana with regard to fixation of schedule of boundaries for the proposed Municipal Corporation, Gurgaon. Thereafter, the State Government in exercise of the powers CWP No.10720 of 2008 -3- conferred by sub-section (2) of Section 3 of the Haryana Municipal Corporation Act, 1994 (hereinafter referred to as the 1994 Act) proceeded to issue the impugned notification dated 2.6.2008 (Annexure P/1), declaring erstwhile Municipal Council, Gurgaon alongwith areas as specified in the schedule to be a Corporation known as Municipal Corporation, Gurgaon, without inviting any objection or granting any opportunity of hearing to the inhabitants of the Municipal Council, Gurgaon, as a result of which the petitioner ceased to be a nominated member of the Municipal Council, Gurgaon, which is no more in existence due to formation of Municipal Corporation, Gurgaon. Hence, the present writ petition. Respondent State of Haryana has filed its written statement and respondent Municipal Corporation, Gurgaon has filed its detailed reply in CWP No.10720 of 2008. The stand of the respondents is that the State Government is fully empowered to issue impugned notification Annexure P/1 under sub- Section (2) of Section 3 of the 1994 Act and to declare any municipal area as Municipal Corporation, provided that the population of the area of the Corporation is not less than three lacs. Since the population of the areas of the Municipal Council, Gurgaon, created vide impugned notification Annexure P/1, has been certified to be 3,80,003 as per the last Census of 2001, the exercise of power is legal and valid and for the reason of proper and greater development and serving the interests of the public at large in the area. It has been further stated that there is no provision in the scheme of the 1994 Act for giving prior notice or personal hearing before declaring any municipality as Municipal Corporation. With regard to the averment of population of 2,01,026 (as depicted in Annexure P/4), it has been stated that CWP No.10720 of 2008 -4- the same was part of a covering letter dated 26.12.2002 (Annexure R-3/1) sent by the Municipal Council to Director, Urban Development Haryana, on the subject of formation of Municipal Council, Gurgaon wherein an estimated census of the population of the Municipal Town, Gurgaon, Village Sukhrali and Village Gurgaon had been sent, whereas as a matter of fact, total area included in the Municipal Corporation, Gurgaon (vide impugned notification Annexure P/1) comprises the municipal limits of erstwhile Municipal Council, Gurgaon, Village Sukhrali, Village Gurgaon and 52 other villages (as depicted in Annexure R-3/3), thus raising the population to 3,80,003 as per the last Census of 2001. Therefore, it has been stated that the population of the area declared to be Municipal Corporation, Gurgaon, was never less than 3 lacs as required under proviso to sub-section (2) of Section 3 of the 1994 Act. Learned counsel for the petitioner has raised two-fold submissions-firstly that the term of the petitioner as member of the Municipal Council, Gurgaon was five years i.e. till April 2010 and the same has been curtailed vide impugned notification without giving any reasonable opportunity of being heard in violation of provisions of the proviso to Article 243U of the Constitution of India as also the provisions of the first proviso to sub-section (1) of Section 12 of the Haryana Municipal Act, 1973 (hereinafter referred to as the 1973 Act); and secondly that the provisions of proviso to sub-section (2) of Section 3 of the 1994 Act have not been complied with while forming the Municipal Corporation, Gurgaon in place of Municipal Council, Gurgaon as the population of the erstwhile Municipal Council, Gurgaon as per the 2001 Consensus was less than three lacs as depicted in Annexure P/4. CWP No.10720 of 2008 -5- Learned Advocate General, Haryana, on the other hand has argued that the case in hand is not that of dissolution of a municipality that would entail grant of reasonable opportunity of being heard before its dissolution, rather it is a case of declaration of a municipal area as a Corporation in exercise of powers under sub-section (2) of Section 3 of the 1994 Act, within the parameters laid down in the Act and there is no provision in the Act for giving any prior notice or personal hearing before declaring any municipality as a Municipal Corporation. It was then argued that the laid down parameter provided in sub-section (2) of Section 3 before issuing impugned notification (Annexure P/1) have been followed in as much as the pre-condition of population of the area to be declared as a Corporation not being less than three lacs has been adhered to. We have heard learned counsel for the parties and perused the record. Perusal of the impugned notification dated 2.6.2008 (Annexure P-1) reveals that in exercise of powers conferred by sub-section (2) of Section 3 of the Act of 1994, State of Haryana as declared the Municipal Council, Gurgaon comprising the area specified in the schedule given in this notification to be a Corporation known as Municipal Corporation, Gurgaon. Therefore, it is necessary to reproduce Section 3(2) of the Act of 1994 for adjudication of the matter in controversy, as under:- “

3. Declaration of Municipal Area as Corporation:- (1) (2) The Government may, from time to time, by notification in the Official Gazette, declare any municipality including area comprising rural area or a CWP No.10720 of 2008 -6- part thereof, if any, to be a Corporation known as “the Municipal Corporation of __________ (Name of Corporation)”: Provided that no municipality including area, comprising rural area or a part thereof, if any, shall be so declared to be a Corporation unless the population thereof is three lacs or more. ” The petitioner has relied upon a document dated 2.7.2007 prepared by the office of Executive Officer, Municipal Council, Gurgaon (Annexure P-4) to substantiate that on the date of notification i.e. 2.6.2008 total population of the area of the Corporation was 2,01,026. But this is not correct as respondent No.3 has rightly submitted in his affidavit that letter dated 2.7.2007 (P-4) pertains to the pupulation of area under the limits of Municipal Council, Gurgaon alongwith two villages namely Sukhrali and Gurgaon and break up is as under:- M.C. Limit Village Sukhrali Village Gurgaon Total : 1,73,542 10,384 17,100 2,01,026 As a matter of fact the detailed area to be included in the Municipal Corporation, Gurgaon by way of impugned notification dated

2.6.2008 is comprising of municipal limits of Gurgaon, villages Sukhrali, Gurgaon and 52 more villages as depicted in the schedule. In this way the total population of the above area has been certified to be 3,80,003 as per last census of 2001. The boundaries of Municipal Council area is described with the black line and the area covered under the Municipal Corporation, CWP No.10720 of 2008 -7- Gurgaon is encircled with red dotted line in the site plan placed on record as Annexure R-3/2. The detailed list of villages is given in Annexure R-3/3, the details of which are given as under:- Sikanderpur Ghoshi Jharsa Islampur Samaspur Tigra Bhimgarh Khera Choma Khera Sarai Alawardi Dhanwapur Basai Garoli Kalan Garoli Khurd Mohmmadpur Jharsa Narsinghpur

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Khandsa 11. Kadipur 12. Daultapur – Narsirabad (Cartapuri) 13. Moulahera 14. Dhundahera 15. Sarhaul 16. Nathupur 17. 18. 19. 20. 21. 22. Ghasola 23. 24. 25. Behrampur 26. Begampur Khatola 27. Kherki Daula 28. Naharpur Rupa 29. Chakkarpur 30. 31. Kanhai 32. Wazirabad Sihi 33. Tikampur 34. Paula Khasuru Pur (Jahajgargh) 35. 36. Shahpur 37. Bindapur Fathepur viran 38. 39. Inayatpur Khera 40. Haiderpur viran 41. Adampur 42. Daultabad 43. Kherki Majra 44. Dhankot 45. Harsaru 46. Nangli Umarpur Teekri Fazilpur Jharsa Silokha (Jeewan wali & Chander Nagar) CWP No.10720 of 2008 -8-

47. Badhshapur 48. Gopalpur (Tuglakpur) 49. Ghota 50. Naya Nehrampur 51. Ulhawas 52. Gawal Pahari Therefore, the net result is that in the notification dated

2.6.2008, total area as contained in the schedule is old M.C. Gurgaon limit plus 54 villages and therefore, the population is certified as 3,80,003. Therefore, ground of the petitioner that the population is less than 3,00,000 is devoid of merit, consequently rejected. The provisions of the Act quoted above reveal that the Government is fully empowered to declare any Municipality including area comprising in any rural area or part thereof to be a Corporation and there is no need of any prior notice or calling objections. Rather, this is a function akin to legislation. A Division Bench of this Court in CWP No.2273 of 2007, Gram Panchayat Bassi Sekhan v. State of Punjab and others, decided on 4th of September, 2008 by placing reliance on a judgment of the Hon'ble Supreme Court in State of Punjab v. Tahal Singh and others, AIR 2002 Supreme Court 533 has held that exercise of powers by the State Government under the provisions of the Municipal Act, while proceeding to alter the limits by excluding or including certain areas in a municipality is legislative in nature. Therefore, in the present case there was no requirement for giving any prior notice or personal hearing before declaring the area is a municipal corporation. No legal right of the petitioner has been infringed. After issuance of notification dated 2.6.2008, a member of Municipal Council, Gurgaon ceases to be a member of Municipal Council CWP No.10720 of 2008 -9- as the same is no longer in existence after the formation of Municipal Corporation. The Government is fully competent to declare the Municipal Corporation in the larger interest of the Society due to increase in the population and for the greater development of infrastructure, as Gurgaon city is one of the main destination around the Capital of India and attracting so many investors from all over the world. Petitioner has failed to press into service any provision of the Act for giving any prior notice or personal hearing before declaring the municipality as Municipal Corporation. It is necessary to mention here that petitioner has not controverted the details of list of villages appended at Annexure R-3/3 and map/site plan as Annexure R-3/2 by way of any replication or rejoinder. Therefore, averments made in both the annexures will be deemed to have been accepted by the petitioner. The contention of the petitioner that the tenure of the petitioner as member of the Municipal Council has been curtailed as the same was till April, 2010, without giving any reasonable opportunity of hearing and the same is in violation of proviso to Article 243-U of the Constitution of India as well as first proviso to sub-section (1) of Section 12 of the Act of 1973 is misplaced and does not help the petitioner as there is neither removal of the petitioner nor dissolution of the municipal council. Rather, it is automatic ceasing of the Municipal Council after issuance of notification dated 2.6.2008 for creation of Municipal Corporation and the net result is that as there is no Municipal Council in existence and only Municipal Corporation will be in existence, so there is no need of issuing any prior notice or opportunity of hearing to the petitioner. Thus, the judgments cited on behalf of petitioner reported as K. Pramila Patnaik and another v. State of Orissa and others, AIR 2001 CWP No.10720 of 2008 -10- ORISSA 190, Mohansingh Tanwani and another v. State of Maharashtra and others, AIR 2002 BOMBAY 39 and S.L. Kapoor v. Jagmohan and others, AIR 1981 SUPREME COURT 136 are not applicable in the present case as in the cited cases, the question involved was with regard to either suppression or dissolution of the municipalities. Consequently, both the writ petitions are dismissed. (JASWANT SINGH) JUDGE April 29,2009 (SATISH KUMAR MITTAL) JUDGE