Rameshbhai Jivanbhai Gangani vs State Of Gujarat
2022 Latest Caselaw 570 Guj

     C/SCA/1247/2016                                   ORDER DATED: 18/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 1247 of 2016
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                RAMESHBHAI JIVANBHAI GANGANI & 2 other(s)
                                Versus
                     STATE OF GUJARAT & 3 other(s)
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Appearance:
MR TULSHI R SAVANI(3070) for the Petitioner(s) No. 1,2,3
MR. AYAAN PATEL, AGP for the Respondent(s) No. 1,2
MR HS MUNSHAW(495) for the Respondent(s) No. 3
MR NIKHILESH J SHAH(3007) for the Respondent(s) No. 4
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 18/01/2022

                                ORAL ORDER

1. This petition under Article 226 of the Constitution of India is filed for quashing and setting aside the Notification dated 03­01­2015 issued by the respondent - State for extending territorial limits of the Bhavnagar Municipal Corporation to include the Village­Sidsar. The petition also seeks to quash and set aside the final order dated 11­08­2015 passed by the respondent No.4 with regards to delimitation of Bhavnagar Municipal Corporation.

2. The petition is filed by the citizens of the Village­Sidsar. The petitioner No.1 at the relevant time was elected as Sarpanch of Sidsar Village Panchayat, other two petitioners are the residents of Village­Sidsar.

3. It is submitted that the State Government had sent communication dated 18­10­2014 to the respondent No.3­Bhavnagar Municipal Corporation for forwarding its opinion within 15 days approved by the Special General Meeting with regards to including the Villages, Village Panchayat stated in the aforesaid communication in the respondent­ Municipal Corporation. Communication was also made on 11­11­2014 to send proposal within two days for including the area of Ruva, Akawada, Tarsamiya, Adhevada, Vartej, Nari and Sidsar in Municipal Corporation. It is submitted that the respondent No.2 and 3 sought

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consent from all the Village Panchayat by passing appropriate Resolution with regard to inclusion of the area in the respondent No.3­ Corporation.

4. The petitioners submitted that Sidsar Village Panchayat passed the Resolution for not being included in the area of the Municipal Corporation of Bhavnagar. It is submitted that with regards to the other Village Panchayat, some of Village Panchayat declined to consent, whereas some of the Village Panchayat consented to be included. Part of the area of Villages like Ruva, Adhewada, Vartej and Tarsamiya were already included in the Bhavnagar Municipal Corporation since 1962 and therefore, areas were already well developed, but still remaining part of the Villages were not included in Bhavnagar Municipal Corporation, whereas Village­Sidsar was entirely included in the Bhavnagar Municipal Corporation limits despite there being opposition to the same.

5. It is submitted that even the Villages of Ruva, Akawada, Tarsamiya, Adhewada, Vartej, Nari, Sidsar, Malanka and Vadva were included in the Corporation limits without being given any opportunity of hearing to the affected Villagers and without knowing their wishes. It is submitted that the Representations were made to point out the difficulties for being included to the elected Representatives, but there was no response at any stage.

6. It is submitted under instruction that some of the villages whose Panchayat have resolved and objected, were not included. Learned Advocate for the petitioners has tried to argue on the basis of the density of the population and distribution of such population to contend that the density of population does not justify the inclusion of the area in the Municipal Corporation as compare to the other Municipal Corporation, density is far lower in the Municipal area of the Bhavnagar Municipal Corporation. It is also submitted that the inclusion of the area would at to the disadvantage of the villagers as they would have to pay more taxes and it is matter of experience of the Public at large that despite paying of higher taxes, suburban area of the Corporation remain undeveloped and no interest is taken by the Corporation of the areas which are at the borders of the Corporation limits.

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7. As against this, learned AGP referring to the Affidavit in reply of the Under Secretary of the Urban Development and Urban Housing Department submitted that the decision to merge the area of the Sidsar Village is in the interest of the Villagers as they would receive the benefit of the development by the Municipal Corporation. The decision is taken as Sovereign Function of the State at as it is provided under the Powers of Clause­1 of the Article­243Q of the Constitution of India and Section­3(2) of the Gujarat Provisional Municipal Corporation Act. The Notification came to be published. The proposal was called for from the Bhavnagar Municipal Corporation by the State with regards to the inclusion of nearby areas keeping in view the growth in the limits of the Bhavnagar Municipal Corporation in terms of population, economy and geographical factors. It is submitted that decision was taken by the Government only for the purpose of providing infrastructural facilities and keeping in view of overall development of the Municipal Corporation to amalgamate area of the adjoining Villages in the Municipal Corporation.

8. It is submitted that before issuing the Notification dated 03­01­2015, which included area of Sidsar Gram Panchayat in the Municipal area of Bhavnagar, procedure as prescribed has been followed and the Notification is issued in the name of Governor of Gujarat as per the Rules of the Business. It was recommended to include Villages of Ruva, Akawada, Tarsamiya, Adhewada, Vartej, Nari, Sidsar, Malanka and Vadva into Bhavnagar Municipal Corporation and Bhavnagar Municipal Corporation has also Resolution to include all such areas within its limits.

9. Learned Advocate MR. H.S. MUNSHAW appearing for the respondent - Municipal Corporation submitted that the present petition is moved with malafide intention and that to belatedly almost a period of one year has passed, when the Notification dated 03­01­2015 was published and it is thereafter that the present petition is filed. It is submitted that same is filed at the behest of the petitioner No.1, who was elected as Sarpanch of the Sidsar and to cater his personal interest, the petition has been filed. It is submitted that earlier also for the same reasons, the petitioner No.1 had filed the petition as a Sarpanch of the Gram Panchayat before this Court, which came to be disposed of by the Division Bench of this Court by order dated 20­10­2015 and therefore only, the present petition also deserves to be dismissed. It is submitted

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that it is in the interest of the Public at large of the Village­Sidsar that the decision is taken and therefore, the personal interest of the petitioner No.1 cannot be given precedence to the interest of the Public at large.

10. In rejoinder, learned Advocate for the petitioners has relied upon the decision of the Hon'ble Supreme Court in the case of Baldev Singh and others v/s. State of Himachal Pradesh and others reported in AIR 1987 SC 1239 to support his contention that before undertaking exercise of including the area of Sidsar Gram Panchayat into the Municipal Corporation, it was necessary for giving an opportunity to the people of the locality before taking such administrative decision and in absence of such exercise being taken by the respondent - State as well as the Corporation, the Notification is required to be set aside.

11. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the petitioners who are claiming to be villagers of Village­Sidsar and particularly the petitioner No.1 being Ex­Sarpanch of the same Village, had filed this petition challenging the inclusion of the Village­Sidsar into the area of the Municipal Corporation. It is pertinent to note that Special Civil Application No.2566 of 2015 was filed by the Sidsar Gram Panchayat on 20­10­2015, which was the petition by the Sarpanch of the Panchayat. However, when the Panchayat was dissolved, the petition through the Sarpanch which was filed was not entertained and hence, by order dated 20­10­2015, the petition came to be dismissed. However, the liberty was reserved in favour of any Citizens aggrieved by the action of extending limits of Bhavnagar Municipal Corporation to file any petition. Pursuant to which it appears that the present petition is filed.

The Notification dated 3rd January, 2015 is issued in exercise of powers conferred under Clause­2 of Article­243Q of the Constitution of India specifying the areas of the Gram Panchayat mentioned in the Schedule, which were larger Urban areas to be included within limits of Bhavnagar Municipal Corporation. The Notification included the areas of Revenue Village of Ruva Gram Panchayat, Tarsamiya Gram Panchayat, Akawada Gram Panchayat, Nari Gram Panchayat, Vadva Gram Panchayat and Sidsar Gram Panchayat in the area of the Municipal Corporation. Accordingly, the State Election Commission also issued the Notification dated 11­08­2015. Two communications which

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are placed on record dated 08­10­2014 and another dated 11­11­2014 at Annexure­D, wherein the proposal was called for from the respective Villages mentioned therein with regards to their consent. It appears that by Circular Resolution placed at Annexure­E signed by 12 Individuals, the Resolution was voted against.

12. From the pleadings it appears that the respondent no.3 is the local authority established under Sub­Section (2) of Section­3 of the Gujarat Provincial Municipal Corporation Act,1949 and the area of the petitioner village Panchayat is just adjacent to the area of respondent no.3 Bhavngar Municipal Corporation. It is pertinent to note that under the power provided in clause(l) of Article 243Q of Constitution of India and sub section (2) of Section­3 of Gujarat Provincial Municipal Corporations Act, 1949, the State Government may declare and publish notification to include, exclude or alter any local area into existing Municipal corporation. State Government has asked the Bhavnagar Municipal Corporation to submit the proposal for including the local developed area looking to growth in the limits of Bhavnagar Municipal Corporation considering various factors of geographical, economical, external growth of area and population etc. vide communication dated 08.10.2014.

13. By way of the notification dated 03.01.2015, Urban Development and Urban Housing Department has notified the areas of Sidsar Grampanchayat, as mentioned in the schedule, from the Panchayat area to the Municipal area of Bhavnagar. Before issuing such notification under the provisions of Article 243Q of the Constitution of India, all the procedure as prescribed was followed and said notification is issued in the name of the Governor of Gujarat as per the Rules of Business. The Commissioner of Bhavnagar Municipal Corporation is sent the proposal to the Principal Secretary, Urban Development & Urban Housing Department recommending to include Ruva, Akwada, Tarsamiya, Adhewada, Varteg, Nari, Sidsar, Malanka and Wadva the areas of Grampanchayat into Bhavnagar municipal corporation as resolved by the Bhavnagar Municipal corporation.

14. From the affidavit of the Corporation it has come on the record that the development subsequent to the impugned Notifications concerned areas are merged into the limits of Bhavnagar Municipal Corporation and the administration has taken up various developmental

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activities in the newly added areas. Even a new Town Planning Scheme is also proposed for the said areas. It is submitted that a new Ring Road covering said area is also proposed and the final decision would be taken within a short time. The Respondent No.3 has undertaken various infrastructural work like water supply, drainage, street lights etc. for the newly added areas. In view of this as such the residents of newly added areas are benefited. It is submitted that the Respondent No.1 herein has taken appropriate decision and issued said notification after following due procedure. The newly added areas are merged into the existing 13 wards and even exercise for assessment of property tax and other taxes is completed. Even general election of Bhavnagar Municipal Corporation is held in the month of November, 2015 on the basis of Notification dated 03­01­2015 issued by the Respondent No.1 and final order dated 11­08­2015 issued by the Respondent No.4.

15. The record now suggest that the territorial area and demography under Bhavnagar Municipal Corporation is as under:

Area Sr. Name of Survey No. (Hec.­Are­ Population S.C. S.T.

 No.      village
                                          Sq.M.)
                        1 to 65, 68



                        1 to 19 and

                        101 to 136
                        1 to 187,

                        214 and 219

                                                      Has been
                                                     included in
                        76 paiki 77
  6     Vadva                           1143­33­22       the              ­­              ­­
                        to 87
                                                     municipality
                                                     population.

(a) Area of Bhavnagar as per the present limit: 53.30 Sq.km.

(b) Population of Bhavnagar as per the present limit: 6,06,282

(c) Area of the proposed new expansion limit: 54.97 Sq.k.m.

(d) Population of the proposed new expansion limit: 37083 * Total area as per the proposed new limit: (a)+(c) = 108.27 Sq.KM.

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*Total population as per the proposed new limit (b)+(d) = 6,43,365

16. The details brought on record showing comparative population in major cities of Gujarat. The Court finds that even after calculation of new areas with Bhavnagar Municipal Corporation, the population is comparable and at par with other major cities, that argument of the petitioners regarding less density in population does not appear to be factually correct (see page­78).

17. This Court in case of Unchidhanal Group Gram Panchayat v. State Of Gujarat reported in (2008) 2 GLR 1275 in Para­18 held that the requirement is only consultation with Gram Panchayat, but no consent or concurrence. The Judgment also holds such decision is a policy decision by the State which would not warrant interference under Article­226.

18. Similarly in case of Hansapur Gram Panchayat v. State Of Gujarat reported in 2016(2)GLH 299. This Court held that where there appears to be no legal malice in the matter of notifying the areas of three villages in Municipal Areas in exercise of powers under Article­243 interference is not warranted.

19. In the facts of the case there is nothing on record to suggest only legal malice in the State Authorities in fact it appears to the contrary where the previous petition was brought by the Sarpanch of the Village which was dismissal and again a fresh petition was filed where one of the petitioner is again the ex­Sarpanch. Thereafter, the Court has reasons to believe that the petition appears to have been filed to protect the interest of ex­Sarpanch which with the passing of the impugned Notification will be diluted.

20. For the forgoing reasons, the Court does not deem it fit to interfere with the Notifications. In view of the aforesaid, this petition deserves to and is hereby dismissed. Notice is discharged.

(A.Y. KOGJE, J) PARESH SOMPURA