_________________________________________________________________ vs State Of H.P. & Ors
2021 Latest Caselaw 369 HP

           IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.




                                                                                   .

                                                    CWP No. 6044/2020
                                                    Decided on: 7.1.2021





    _________________________________________________________________
    Ramesh Thakur & ors.                                                    ...Petitioners





                                         Versus
    State of H.P. & ors.                                                    ...Respondents

    Coram:

    Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
    Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.


                                             1 No
    Whether approved for reporting?


    For the Petitioners:                    Mr. Sudhir Thakur, Senior Advocate




                                            with Mr. Karun Negi, Advocate.





    For the Respondents: Mr. Ashok Sharma, Advocate General
                         with Mr. Vinod Thakur, Mr. Vikas
                         Rathore, Mr. Shiv Pal Manhans, Addl.





                         A.Gs., Ms. Seema Sharma, Mr.
                         Bhupinder Thakur and Mr. Yudhvir
                         Singh Thakur, Dy. A.Gs., for
                         respondents­State.

                                           (Through Video Conferencing)




    1
        Whether reporters of the local papers may be allowed to see the judgment? yes




                                                                ::: Downloaded on - 08/01/2021 20:15:33 :::HCHP
                                       2




    Tarlok Singh Chauhan, Judge (oral)

.

The petitioners are permanent residents of Gram

Panchayats Sirinagar and Kawarag and aggrieved by the

action of the respondents, whereby their area, which earlier

formed part of the Gram Panchayats have now been included

in Nagar Panchayat, have filed the instant petition for grant

r to of the following substantive reliefs:

(i) by issuing writ of certiorari, by quashing the notification No. UD­A(1)­5/2015 dated 28.10.2020

(Annexure P­2) whereby the area was notified to be Nagar Panchayat Kandaghat by the respondents.

(ii) by issuing writ of certiorari, by quashing the

further proceedings initiated by the respondents including creation of new wards and delimitation of

the wards etc. on the basis of notification No. UD­A(1)­ 5/2015 dated 28.10.2020 (Annexure P­2).

(iii) by issuing writ of certiorari, by quashing the notification No. UD­A(1)­5/2015 dated 24.9.2020

(Annexure P­1), whereby the area was proposed to be notified as municipal area.

(iv) by issuing writ of mandamus, directing the respondents not to conduct elections of Nagar Panchayat Kandaghat on the basis of Notification No. UD­A(1)­5/2015 dated 28.10.2020 (Annexure P­2).

(v) by issuing writ of certiorari, by quashing the amended Section 4 of H.P. Municipal Act, 1994,

amended by way of Amendment Bill No. 13 of 2020 (Annexure PX­4) whereby curtailing the period from 6

.

weeks to 2 weeks in Section 4 of Himachal Pradesh Municipal Act, 1994.

2 It is averred that the proposal for declaration of

the local area of Gram Panchayat Kandaghat as Municipal

area, Kandaghat, was notified and objections and

suggestions from the inhabitants, likely to be affected, were

invited by the respondents vide notification dated 24.9.2020.

Thereafter, the Gram Panchayats Sirinagar and Kwarag filed

objections vide resolutions dated 31.8.2020 and 1.9.2020

respectively before the Deputy Commissioner Solan, objecting

therein declaration of area in question as Nagar Panchayat,

Kandaghat on the ground that the local inhabitants have

agricultural land in the area in question, over which they

have been carrying on agricultural pursuits to earn their

livelihood. The Deputy Commissioner, Solan, referred the

objections to Director, Urban Development. Various

meetings were also held in separate wards of Gram

Panchayat Srinagar and the inhabitants opposed the action

of the respondents. Similar objections filed by the Gram

Panchayat Srinagar were also assigned by the Deputy

.

Commissioner, Solan, to SDM, Kandaghat to be sent to State

Government. However, vide notification dated 28.10.2020,

the State Government under sub­Section 6 of Section 4 of the

Himachal Pradesh Municipal Act, 1994 (for short, the Act)

declared the Gram Panchayat Srinagar, Sub Mohal Srinagar

Panchayat Kandaghat.

r to and Sub Mohal Dolag to be Nagar Panchayat known as Nagar

It is further averred that the

respondents have failed to comply with the provisions of

Section 3(1) and 4(4) of the Act and entire exercise

undertaken by the respondents is liable to be set aside.

3 Lastly, it is averred that by reducing the period for

filing objections from 6 weeks to 2 weeks by carrying out

amendment in the Act, the respondents have illegally

defeated valuable right of the petitioners and, therefore, also

entire action of the respondents in declaring Nagar

Panchayat deserves to be quashed and set aside.

4 Even though the respondents have not filed their

reply, but necessary instructions in this behalf have been

placed on record by the learned Advocate General, a perusal

whereof reveal that the objections were received from the

.

petitioners along with other representations from the

concerned villagers and it was only after considering the

same that the amended proposal was sent by the SDO (C)

Kandaghat to Deputy Commissioner, Solan, vide letter dated

23.10.2020, in which the agricultural portion in 87 kittas

measuring 04­95­51 hectares was proposed to be excluded

from Up Mohal Sirinagar. Since this land was traditionally

irrigated through Kuhal, therefore, keeping in view the

situation of the area, two patches mentioned in the main

proposal were excluded and in Up Mohal Dolag, the land

comprised in 46 Kitta measuring 01­06­69 hectares adjoining

agricultural land was proposed to be excluded on the

demand of local people along with petitioners. The amended

proposal was sent to the government in the shape of area

100­16­26 hectares in Kitta 1443. After considering all the

objections/suggestions of the inhabitants of Gram

Panchayats Sirinagar and Kawarag and after excluding the

agricultural land mentioned (supra), Department of Urban

Development issued notification dated 28.10.2020. It is

further stated that the area notified as Nagar Panchayat is in

.

the shape of Town and has to be developed in urbanized

manner and the same cannot be done by the Gram

Panchayat.

5 We have heard learned counsel for the parties and

have also gone through the material placed on record.

In a constitutional scheme, there is no absolute

separation of power. Apart from the various governmental

functions, the executive is always entrusted with several

functions, which are legislative in nature. The distinction

between legislative and administrative function is thin and

often overlapping.

7 In De Smith's Judicial Review of

Administrative Action" (Fifth Edition) with regard to

difference between legislative and administrative acts,

following observations have been made:

"A distinction often made between legislative and administrative act is that between the general and the particular. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases and administrative act cannot be exactly defined, but it includes the adoption

of a policy, the making and issue of a specific direction, and the application of a general rule to a

.

particular case in accordance with the requirements of policy of expediency or administrative practice. Legal consequences flow from this distinction."

8 Such distinction has been meticulously culled

out by the Hon'ble Supreme Court in Bombay Dyeing &

r to MFG. Co. Ltd. (3) vs. Bombay Environmental Action

Group & ors., (2006) 3 SCC 434, wherein it was observed

as under:­

197. A matter involving environmental challenges may

have to be considered by a superior court depending upon the fact as to whether the impugned action is a legislative action or an executive action. In case of an

executive action, the court can look into and consider

several factors, namely,

(i) Whether the discretion conferred upon the

statutory authority had been property exercised;

(ii) Whether exercise of such discretion is in consonance with the provisions of the Act;

(iii) Whether while taking such action, the executive government had taken into consideration the purport and object of the Act;

(iv) Whether the same subserved other relevant factors which would affect the public in large;

.

(v) Whether the principles of sustainable development which have become part of our

constitutional law have been taken into consideration; and

(vi) Whether in arriving at such a decision, both

substantive due process and procedural due process had been complied with.

198. It would, however, unless an appropriate case is

made out, be difficult to apply the aforementioned

principles in the case of a legislative act. It is no doubt true that Articles 14, 21, 48­A of the Constitution of India must be applied both in relation to an executive

action as also in relation to a legislation, however, although the facet of reasonableness is a

constitutional principle and adherence thereto being a constitutional duty may apply, the degree and the

extent to which such application would be made indisputably would be different. Judicial review of

administrative action and judicial review of legislation stand on a different footing. What is permissible for the court in case of judicial review of administrative action may not be permissible while exercising the power of judicial review of legislation. It may, however, be a different thing to contend that the legislation had been enacted without constitutional principles in mind. The real question is whether the constitutional

mandates had been complied with in making such legislation.

.

9 Judicial review of administrative action and

judicial review of legislation stand on a different footing. What

is permissible for the Court in case of judicial review of

administrative action may not be permissible while exercising

the power of judicial review of legislation.

10 Insofar as this Court is concerned, it is no longer

res integra and rather has been authoritatively laid down by

this Court that declaration of Municipalities is a legislative

function, which is undertaken by the Government in a larger

public interest and ordinarily Courts are loath to interfere

with such decision(s); until and unless judicial conscious of

the Court is satisfied that the decision so taken is not in

public interest, but has been taken with ulterior or oblique

motive at the behest of some interested person or persons

who personally stand to gain by the declaration of such

Municipality.

11 Apart from above, similar reiteration of law can

also be found in a very recent judgments rendered by this

Court in CWP No. 3895/2020, titled as Vijay Kumar &

ors. vs. State of H.P. & ors., along with connected

.

matters, dated 23.12.2020 and CWP No. 5451/2020,

titled as Lalit Singh vs. State of H.P. & ors., decided on

30.12.2020.

12 A bare perusal of the writ petition, more

particularly, grounds raised therein, would go to indicate that

entire petition proceeds on the premise as if the impugned act

of notifying the Nagar Panchayat in question by the State

Government was an administrative act, whereas as observed

above, this is a legislative act. Therefore, in this background,

scope of interference, in exercise of power of judicial review,

by this Court, is extremely limited.

13 Now, adverting to the plea of the petitioners

regarding amendment being illegal, whereby time for filing

objections has been curtailed.

14 We really do not find any merit in this contention

as it is more than settled that elections to Panchayati Raj

Institutions have to be held in a time bound manner and

since the node to conduct the elections was received late by

the State Government from Central Government on account

.

of assessment of COVID­19 pandemic situation, therefore, in

these circumstances, the respondents were well within their

right to have curtailed period of filing objections from 6 weeks

to 2 weeks.

15 As a last ditch effort, learned counsel for the

petitioners, after placing strong reliance on judgment of the

Hon'ble Supreme Court in Baldev Singh and Ors. Vs. State

of Himachal Pradesh, (1987) 2 SCC 510, would contend

that the residents of the affected areas should have been

afforded an opportunity of hearing before issuing the

impugned notification.

16 We find no merit in this contention as the Hon'ble

Supreme Court in Baldev Singh's case (supra) has held that

affording of hearing to affected persons is essential

prerequisite for constituting notified area, however, hearing

contemplated is not required to be oral and can be by inviting

objections and disposing them of in a fair way as is the fact

situation obtaining in the instant case.

17 In addition to aforesaid, declaration of municipal

.

area, in terms of Section 4 of the Act, is essentially a policy

matter, which is within the exclusive discretion, domain and

jurisdiction of the State and the Courts are loath to interfere

in such policy decision of the Government which is taken on

consideration of myriads of inputs and merely because the

petitioner may lose his clout, he cannot invite the Court to

interfere in such matters; except on limited ground if the

decision is found to be against the statute(s) or constitution.

18 The petitioners have not been able to demonstrate

or prove that declaration of area, subject matter of the writ

petition, into a Nagar Panchayat is either not in public

interest or this decision has not been taken by the

Government in larger interest of inhabitants of the area, but

the same has been taken by the State Government to help a

few individuals or the declaration has not been done in

accordance with constitutional requirement coupled with

statutory requirements of the Act.

19 In view of aforesaid discussions, we find no merit

in the instant petition and the same is accordingly dismissed,

so also the pending application(s), if any, leaving the parties

.

to bear their own costs.

                                         (Tarlok Singh Chauhan)
                                                  Judge





                                          (Jyotsna Rewal Dua)
         7.1.2021                                Judge





         (pankaj)