Himachal Pradesh High Court
Between vs King Emperor Air on 15 October, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 15th DAY OF OCTOBER, 2022.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE VIRENDER SINGH
1.
r to
CIVIL WRIT PETITION NO.1610 OF 2021.
Between:-
SH. CHET RAM SON OF SH. JAMIR DEV,
R/O VILLAGE KARANA, GRAM PANCHAYAT,
KARANA, TEHSIL ANI, DISTRICT
KULLU,HP.
2. CHAMAN BHARTI S/O SH. DHOLU RAM,
R/O VILLAGE TESHAN, GRAM
PANCHAYAT, KUNGASS, TEHSIL ANI,
DISTRICT KULLU, HP.
3. SH. GIAN CHAND SON OF SHRI TANKU
RAM, R/O VILLAGE DOGHARI, GRAM
PANCHAYAT: BAKHNAO, TEHSIL: ANI,
DISTRICT KULLU, HP.
4. SH. NITYA NAND, S/O SH. KATHU RAM,
R/O VILLAGE NALDEHRA, GRAM
PANCHAYAT: NAMHOG, TEHSIL ANI,
DISTRICT KULLU,HP.
5. SH. PREM CHAND S/O SH. BARNWAS, R/O
ANI, PO ANI, GRAM PANCHAYAT, ANI,
DISTRICT KULLU, HP.
.....PETITIONERS.
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2
(BY SH. G.D.VERMA, SENIOR ADVOCATE
WITH SH. B.C. VERMA, ADVOCATE)
.
AND
1. STATE OF HIMACHAL PRADESH
THROUGH THE SECRETARY (URBAN
DEVELOPMENT) TO HP GOVT., SHIMLA-2.
2. THE SECRETARY (PANCHAYATI RAJ) TO
THE GOVT. OF HP, SHIMLA-171002.
3.
DISTRICT AT KULLU, HP.
r to
THE DEPUTY COMMISSIONER, KULLU,
......RESPONDENTS.
(BY SH. ASHOK SHARMA, ADVOCATE
GENERAL WITH SH. RAJINDER
DOGRA, SENIOR ADDITIONAL
ADVOCATE GENERAL, SH. SHIV
PAL MANHANS, ADDITIONAL
ADVOCATE GENERAL, SH.
BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL AND SH.
RAJAT CHAUHAN, LAW OFFICER)
________________________________________________________________
Reserved on: 12.10.2022.
This petition coming on for admission after notice
this day, Hon'ble Mr. Justice Tarlok Singh Chauhan, passed
the following:
ORDER
Aggrieved by the final Notification dated
27.10.2020 whereby the Nagar Panchayat, Ani, has been
created out of the different revenue estates, the petitioners,
who are the permanent residents of villages of Tehsil Ani,
.
have filed the instant petition for grant of the following
substantive reliefs:-
"i). That the respondents be directed to produce
total record of the case for the perusal of this
Hon'ble Court right from the day when the
proceedings were initiated for creation of Nagar
Panchayat, Ani till final Notification dated
27.10.2020.
ii)
That final Notification dated 27.10.2020
whereby Nagar Panchayat Ani has been created out
of the different revenue estates out of the total area
of aforesaid Panchayats vide Annexure P-4 may be
set aside and quashed."
2. According to the petitioners, the State of
Himachal Pradesh had on the demand of the inhabitants of
the different villages created various Gram Panchayats,
which are functioning properly and being more beneficial
and desirable, the respondents could not have illegally
created Nagar Panchayat, Ani by taking out the following
villages:-
i) Muhal Manjhadesh from Gram Panchayat,
Bakhnao.
ii) Muhal Franali from Gram Panchayat, Ani.
iii) Muhal Karana from Gram Panchayat,
.
Karana.
iv) Muhal Kungas from Gram Panchayat,
Kungas.
v) Muhal Jaban from Gram Panchayat
Namhog.
3. It is further contended that the Deputy
Commissioner, Kullu of his own and in absence
r of any
resolution on behalf of any of the panchayats for creation of
Nagar Panchayat, Ani, recommended the matter to the
Director, Urban Development vide his letter dated
13.08.2020. Respondent No.1, in turn, issued a Notification
dated 25.08.2020 whereby a proposal was made for
constitution of the Nagar Panchayat, Nirmand, consisting of
Muhal Manjhadesh of Gram Panchayat Bakhnao, Muhal
Franali of Gram Panchayat, Ani, Muhal Karana of Gram
Panchayat, Karana, Muhal Kungas of Gram Panchayat,
Kungas and Muhal Jaban of Gram Panchayat, Namhog, and
not for Ani. Though at the end of the Notification, it is
mentioned that Nagar Panchayat was proposed to be
created for Ani.
4. In terms of the Notification, objections/
suggestions were invited to be filed within six weeks from
.
the date of publication of the Notification which was
published on 14.09.2020. Various objections were filed, but,
according to the petitioners, the same were not considered
and despite this the final Notification creating Nagar
Panchayat, Ani was issued vide Notification dated
27.10.2020, which is illegal for not only excluding the five
villages as mentioned aforesaid, but also because there is
no compliance of the mandatory provisions of the Himachal
Pradesh Municipal Act, 1994 (for short 'Act') inasmuch as
wrong publication of Notification dated 25.08.2020.
5. It is further averred that as per proposal in
Notification dated 25.08.2020, area of Muhal Majhadesh in
Gram Panchayat, Bakhnao was proposed to be taken from
Khasra No. 2300 to 2850, but, as per Notification dated
27.10.2020, additional area of Khasra Nos. 8284 and 8285
has been taken for creation of Nagar Panchayat, Ani. In
Muhal Karana, there was proposal for taking Khasra
Nos.2191 to 2460, however, additional area of Khasra No.
2184 to 2190 has been taken in the final Notification though
there was no such proposal. As regards Muhal Kungas,
there was a proposal to put area of Khasra Nos. 2807 to
.
2841 in Nagar Panchayat, but all these khasra numbers
have been given up and areas of Khasra Nos. 1171 to 1187,
2747, 2801, 2876 and 2877 have been taken up for
inclusion of Nagar Panchayat. In the absence of any
proposal in the Notification under Section 4 of the Act,
these areas could not
r be taken out of respective Gram
Panchayats for inclusion in Nagar Panchayat.
6. In addition to the above, it has also been
averred that the inhabitants of the Gram Panchayat, who
belong to the backward area, were entitled to an
opportunity of hearing before issuing the final Notification
dated 27.10.2020. Having failed to do so, the entire
exercise, as undertaken by the respondents, was bad in law.
7. The respondents have opposed the petition by
filing reply wherein it has been submitted that the Sub
Divisional Officer (Civil) Ani, District Kullu, submitted a
proposal for the composition of Nagar Panchayat, Ani, for a
transitional area of 4,64,411 square metres with the
population of 5,840 as reported by the Census Department,
Government of India, held in the year 2011, to replying
respondent No.3 i.e. Deputy Commissioner, Kullu. The
.
proposal as submitted fulfilled the requirement of law,
more particularly, the legal propositions and conditions for
formation of the Nagar Panchayat as envisaged under
Chapter-II, Section 3 thereof.
8. Accordingly, on the basis of the proposal and in
view of the demographic conditions of Ani Town, population
density of the said area and also for the better
development and improved arrangements in the said area,
the State Government vide Notification dated 25.08.2020
classified the proposed area as Nagar Panchayat, Ani under
Section 3(2) of the Act. Vide this notification,
objections/suggestions were invited from the local
inhabitants within a prescribed time frame of six weeks.
Total 12 objections/suggestions were received from the
local inhabitants including present petitioner Nos. 3 and 5
which were further communicated to the State Government
by respondent No.3 with detailed comments and report
after adopting due procedure.
9. Taking into consideration these objections/
suggestions, the justified demands, objections and
.
suggestions were accordingly considered and some
populated commercial area was included in this newly
formed Nagar Panchayat. On the other hand, the areas
which were quite far away from the headquarter with less
population were accordingly excluded from the Urban
Local Body in the final Notification. It has been averred
that it is for the better development of the area that Nagar
Panchayat has been constituted to which no exception
can be taken by the petitioners.
10. We have heard the learned counsel for the
parties and have gone through the records of the case.
11. At the outset, in order to appreciate the issue,
we need to refer to the relevant provisions of the Act which
deal with the procedure for declaring the municipal area
under Section 4, notification of intention to include a local
area in a municipal area under Section 5, notification of
intention to exclude local area from a municipal area under
Section 6 and exclusion of local area from a municipal area
under Section 7 and the same read as under:-
"4. Procedure for declaring municipal area.-(1)
The State Government may, by notification, propose
.
any local area to be a municipal area under this Act.
(2) Every such notification under sub-section (1)
shall define the limits of the local area to which it
relates.
(3) A copy of every notification under this section,
with a translation thereof in such language as the
State Government may direct shall be affixed at
some conspicuous place in the office of the Deputy
Commissioner, within whose jurisdiction the local
area to which the notification relates lies, and at one
or more conspicuous places in that local area.
(4) The Deputy Commissioner shall certify to the
State Government the date on which the copy and
translation were so affixed and the date so certified
shall be deemed to be the date of publication of the
notification.
(5) If any inhabitant desires to object to a notification
issued under sub-section (1), he may, within six
weeks from the date of its publication submit his
objection in writing through the Deputy
Commissioner to the State Government and the
State Government shall take his objection into
consideration.
(6) When six weeks from the date of publication
have expired, and the State Government has
considered and passed orders on such objections as
may have been submitted to it, the State
Government may, by notification, declare the local
area for the purposes of this Act, to be a municipal
area.
.
(7) The State Government may, by notification,
direct that all or any of the rules which are in force in
any municipal area shall, with such exceptions and
adaptations as may be considered necessary, apply
to the local area declared to be a municipal area
under this section, and such rules shall forthwith
apply to such municipal area without further
publication.
(8) When a local area, the whole or part of which was
a notified area under the Himachal Pradesh
Municipal Act, 1968 (19 of 1968) or a Nagar
Panchayat under this Act, is declared to be municipal
council under this section, the municipal council shall
be deemed to be a perpetual successor of such
notified area committee or of Nagar Panchayat, as
the case may be, and in respect of all its rules, bye-
laws, taxes, and all other matters, whatsoever and
the Nagar Panchayat shall continue in office and
shall notwithstanding anything contained in this Act
be deemed to be the municipal council until
the appointment and election of members is notified
by the State Government under section 27.
(9) A municipality shall come into existence on such
day as the State Government may, by notification,
appoint in this behalf."
"5. Notification of intention to include a local
area in a municipal area.- (1) The State
Government may, by notification, and in such other
manner as it may determine, declare its intention to
include within a municipal area any local area in the
.
vicinity of the same and specified in the notification.
(2) Any inhabitant of a municipal area or local area in
respect of which a notification has been published
under sub-section (1) may, if he objects to the
alteration proposed, submit his objection in writing
through the Deputy Commissioner to the State
Government within six weeks from the publication of
the notification; and the State Government shall take
such objection into consideration.
(3) When six weeks from the publication of the
notification have expired, and the State Government
has considered the objections, if any, which have
been submitted under sub-section (2) the State
Government may, by notification, include the local
area in the municipal area.
(4) When any local area has been included in a
municipal area under sub-section (3) of this Act, and,
except as the State Government may, by
notification, direct otherwise, all notifications, rules,
bye-laws, orders directions and powers issued,
made, or conferred under this Act and in force
throughout whole of the municipal area at the time
shall apply to such area."
"6. Notification of intention to exclude local
area from a municipal area.- The State
Government may, by notification and in such other
manner as it may deem fit, declare its intention to
exclude from a municipal area any local area
comprised therein and specified in the notification."
.
"7. Exclusion of local area from a municipal
area.- (1) Any inhabitant of a municipal area or local
area in respect of which a notification has been
published under section 6 may, if he objects to the
exclusion proposed, submit his objection in writing
through the Deputy Commissioner to the State
Government within six weeks from the publication of
the notification and the State Government shall take
his objection into consideration.
(2) When six weeks from the publication of the
notification have expired and the State Government
has considered the objections, if any, which have
been submitted under sub-section (1), the State
Government may, by notification, exclude the local
area from the municipal area."
12. It would be noticed that in terms of Section 4,
the State Government is required to issue a Notification
whereby it proposes any local area to be a municipal area
under the Act. The Notification so issued under sub-section
(1) of Section 4 is to define the limits of the local area to
which it relates. In case, further area is to be included,
then procedure as prescribed under Section 5(supra) is
required to be followed whereby the State by a Notification
has to declare its intention to include within a municipal
area any local area in the vicinity of the same and specified
.
in the Notification.
13. Record reveals that the aforesaid procedure has
not at all been followed and despite that additional areas of
Khasra Nos.8284 and 8285 in Muhal Majhadesh under Gram
Panchayat, Bakhnao have been included in the creation of
Gram Panchayat, Ani. In addition thereto, additional areas
of Khasra No.2184 to 2190 have been taken in Muhal
Karana which were not there in the proposal in the
notification issued under Section 4. Lastly, areas of Khasra
Nos. 1171 to 1187, 2747, 2801, 2876 and 2877 which were
not part of the Notification dated 25.08.2020 in Muhal
Kungas have been included in the final Notification dated
27.10.2020, which is clearly in violation of the provisions of
the Act.
14. It is more than settled that where a power is
given to do a certain thing in a certain way, the thing must
be done in that way or not at all and other methods of
performance are necessarily forbidden, This was so held by
the Privy Council in Nazir Ahmad vs. King Emperor AIR
1936 PC 253.
.
15. A Bench of three Hon'ble Judges of the Hon'ble
Supreme Court in Chandra Kishore Jha vs. Mahavir
Prasad and others (1999) 8 SCC 266 held as under:-
"17.In our opinion insofar as an election petition is
concerned, proper presentation of an election
petition in the Patna High Court can only be made in
the manner prescribed by Rule 6 of Chapter XXI-E. No
other mode of presentation of an election petition is
envisaged under the Act or the Rules thereunder and,
therefore, an election petition could, under no
circumstances, be presented to the Registrar to save
the period of limitation. It is a well-settled salutary
principle that if a statute provides for a thing to be
done in a particular manner, then it has to be done in
that manner and in no other manner. (See with
advantage : Nazir Ahrnad v. King Emperor, 63 Indian
Appeals 372=AIR 1936 PC 253; Rao Shiv Bahadw
Singh & Anr. V. State of Vindhya Pndwh, 1954 SCR
1098 = AIR 1954 SC 322. State of Utter Pradesh v.
Singhan Singh & Ors., AIR 1964 SC 358 = (1964) 1
SCWR 57].."
16. The said principle has been followed and
reiterated by the Hon'ble Supreme Court in Cherukuri
Mani w/o Narendra Chowdari vs. Chief Secretary,
Government of Andhra Pradesh and others (2015)
13 SCC 722 wherein it was held as under:-
.
"14. Where the law prescribes a thing to be done in
a particular manner following a particular procedure,
it shall be done in the same manner following the
provisions of law, without deviating from the
prescribed procedure. When the provisions of Section
3 of the Act clearly mandated the authorities to pass
an order of detention at one time for a period not
exceeding three months only, the Government Order
in the present case, directing detention of the
husband of the appellant for a period of twelve
months at a stretch is clear violation of the
prescribed manner and contrary to the provisions of
law. The Government cannot direct or extend the
period of detention up to the maximum period of
twelve months, in one stroke, ignoring the cautious
legislative intention that even the order of extension
of detention must not exceed three months at any
one time. One should not ignore the underlying
principles while passing orders of detention or
extending the detention period from time to time."
17. Similar reiteration of law can be found in few
other recent judgments of the Hon'ble Supreme Court in
Municipal Corporation of Greater Mumbai (NCGM) vs.
Abhilash Lal and others (2020) 13 SCC 234, in Opto
Circuit India Limited vs. Axis Bank and others (2021)
6 SCC 707 and in a very recent case decided by the
.
Hon'ble Supreme Court on 25.07.2022 in Civil Appeal
No. 4807 of 2022 arising out of SLP (C) No.19886/2019
titled Union of India and others vs. Mahendra Singh.
18. It is more than settled that the function of the
Government in establishing a Nagar Panchayat under the
Act is neither executive nor
r administrative, but is a
legislative process. Therefore, no judicial duty is laid on the
Government in discharge of the statutory duties. The only
question to be examined is whether the statutory
provisions have been complied with. If they are complied
with, then the Court would not interfere. However, in case,
the statutory provisions are not complied with as is the
case in hand, then obviously the establishment and
declaration of the Nagar Panchayat by a Notification cannot
be countenanced and is thus liable to be set aside. (Refer:
Sundarjas Kanyalal Bhatija and others vs. Collector,
Thane, Maharashtra and others (1989) 3 SCC 396 and
State of Rajasthan vs. Ashok Khetoliya & Another
2022 (4) Scale 580).
19. Since, the instant petition can be disposed of on
this singular ground, therefore, the other grounds as raised
.
in this petition, need not be gone into.
20. Consequently, the instant petition is allowed and
the final Notification dated 27.10.2020 is quashed and set
aside.
21. Pending application, if any, also stands disposed
of. r
22. However, this order shall not come in the way of
the respondents in case they intend or choose to
undertake a fresh exercise after following the law for the
creation of Nagar Panchayat, Ani, in future.
(Tarlok Singh Chauhan)
Judge
(Virender Singh)
Judge
15th October, 2022.
(krt)
