Rajasthan High Court - Jodhpur

Bhupendra Shrimali vs State Of Rajasthan ... on 12 March, 2025

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 D.B. Civil Writ Petition No. 724/2025

1.       Bhupendra Shrimali S/o Shri Praveen Shrimali, Aged
         About 42 Years, R/o 13, Kardhar Bhawan, New Manglam
         Complex, Shobhagpura, Udaipur, Rajasthan.
2.       Hemant Chordia S/o Devi Lal Chordia, Aged About 53
         Years, R/o 95 Chandra Nikunj, Nh Road No. 8, Bhuwana,
         Udaipur, Rajasthan.
3.       Indra Dangi W/o Shri Dinesh Dangi, Aged About 36 Years,
         R/o Anushree Vatika, Ashirwad Nagar, Shobhagpura,
         Udaipur, Rajasthan.
4.       Devi Lal S/o Shri Khubi Lal, Aged About 50 Years, R/o
         Prathmik Vidhaylaye Ke Pas, Bari Tb (S), Udaipur,
         Rajasthan.
5.       Heera Lal Dangi S/o Shri Kewla Ji Dangi, Aged About 46
         Years, R/o Near Village Circle, H.no. 383, Sukher, Udaipur,
         Rajasthan.
6.       Ramesh S/o Shri Ganga Ram, Aged About 32 Years, R/o
         Rajeshwar Nand Colony, Bhuwana, Udaipur, Rajasthan.
7.       Bhanwar Lal Puskarna S/o Shri Chaturbhuj Puskarna,
         Aged    About       51     Years,      R/o     377,        Sukher    Choraha,
         Bhuwana, Udaipur, Rajasthan.
8.       Sonal Ganchha W/o Shri Prakash Ganchha, Aged About
         32 Years, R/o 168, Sukhdevi Nagar, Chota Bedla, Girwa,
         Udaipur, Rajasthan.
9.       Narayan Lal Gameti S/o Shri Rama Ji Gameti, Aged About
         34 Years, R/o 131, Rebariyon Ka Guda, Shastri Circle,
         Udaipur, Rajasthan.
10.      Govind Ram Rebari S/o Shri Ramu, Aged About 37 Years,
         R/o Rebariyon Ka Gurha, Dhinkli, Udaipur, Rajasthan.
11.      Sanju W/o Shri Ajay, Aged About 41 Years, R/o Post
         Office Badi, 334, Suthar Wada, Bari, Badgaon, Udaipur,
         Rajasthan.
                                                                       ----Petitioners
                                       Versus
1.       State    Of     Rajasthan,          Through          Principal      Secretary,
         Department         Of     Local      Self      Government           Govt.   Of
         Rajasthan, Govt. Secretariat, Jaipur.


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2.        State      Of      Rajasthan,           Through             Secretary,     Rural
          Development              And         Panchayati         Raj      Department,
          Secretariat, Jaipur (Rajasthan).
3.        The Director, Department Of Urban Development And
          Housing, Government Of Rajasthan, Jaipur.
4.        The     District    Collector,        Udaipur,       District    Collectorate,
          Udaipur, Rajasthan.
5.        The      Municipal          Commissioner,              Udaipur        Municipal
          Corporation, Udaipur, Rajasthan.
                                                                        ----Respondents


For Petitioner(s)              :     Mr. Abhishek Pareek
For Respondent(s)              :     Mr. Rajesh Panwar, Sr. Adv. & AAG
                                     assisted by Mr. Ayush Gehlot
                                     Mr. Anurag Shukla



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE CHANDRA PRAKASH SHRIMALI

Order

12/03/2025

1. Learned Senior Advocate and Additional Advocate informs

the Court that the present writ petition is covered by the judgment

passed by this Court in D.B. Civil Writ Petition

No.20142/2024 (Motan Das & Ors. V/s The State of

Rajasthan & Ors.) and other connected cases, decided on

28.02.2025. The operative portion of the said judgment reads as

under:-

"9. This Court also observes that for the purpose of this case, it is relevant to refer to Article 243-P(e) of the Constitution of India which defines the term "Municipality"

to mean an institution of self-government constituted under Article 243-Q.

10. Article 243-Q of the Constitution of India reads as follows:

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"243-Q. Constitution of Municipalities. - (1) There shall be constituted in every State-

(a) Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural to an urban area;

(b) a Municipal Council for smaller urban area; and

(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:

Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit by public notification, specify to be an industrial township. In this article, "a transitional area", "a smaller urban area" or "a larger urban area" means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part."

11. This Court is conscious of the judgment rendered in the case of Champa Lal (supra), relevant portions of which are reproduced as follows:

"Article 243-Q contemplates the constitution of three different categories of bodies known as (1) Nagar Panchayat for transitional area (2) Municipal Council for a smaller urban areas, and (3) Municipal Corporation for a larger urban area.

It is declared under Article 243-Q(2) that the expressions "a transitional area", "a smaller urban area" and a "larger urban area"

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(hereinafter collectively referred to as "Areas") would mean such areas as may be specified by the Governor by a public notification for the purpose of Part IX-A of the Constitution of India. Article 243-Q(2) further obligates the Governor to have due regard to the various factors mentioned therein before specifying the Areas i.e., the population of the area, the density of the population, the revenue generated in the area for local administration, percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit.

8. It, therefore, appears from the scheme of Article 243-Q(2) that the Governor is not free to notify "Areas" in his absolute discretion but is required to fix the parameters necessary to determine whether a particular AREA is transitional area or a smaller urban area or a larger urban area with due regard to the factors mentioned above. It is implicit that such parameters must be uniform for the entire State. It is only after the determination of the parameters, various municipal bodies contemplated under Article 243-Q(1) could be constituted."

12. This Court is also conscious of the judgment rendered in the case of Ashok Khetoliya (supra), wherein while explaining the scope of legislative power vis-a-vis Article 243-Q, the Hon'ble Supreme Court held as follows:

"16. Since the local Government falls in entry 5 of List II of the Seventh Schedule, therefore, it is the State Legislature alone which is competent to legislate in respect of the municipalities with only one limitation that the provisions of the State Act cannot be inconsistent with the mandate of the Scheme of Part IXA of the Constitution. The scheme of Part IXA of the Municipalities Act does not contemplate a separate notification under

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Article 243Q of the Constitution and thereafter under Section 5 of the Municipalities Act. As Section 5 of the Municipalities Act is not inconsistent with any provisions of Article 243Q of the Constitution, therefore, two notifications are not contemplated or warranted under the Scheme of Part IXA or the Municipalities Act as reproduced in the table above."

13. This Court in light of the aforementioned observes that discretionary power has been vested in the Hon'ble Governor under Article 243-Q(2) of the Constitution of India and a bare perusal of the same, highlights that, it does not mandate issuance of any notification merely on count of ample discretion having been conferred. Further, in case such a notification is to be issued, wide powers in this regard have been conferred upon the Hon'ble Governor, to determine factors as deemed fit for setting parameters for constitution of municipality. Thus, the impugned notifications are in compliance of Article 243-Q of the Constitution of India. Thus, the aforesaid Issue

(i) stands answered accordingly.

14. This Court is also conscious of the judgment rendered in the case of Ashok Khetoliya (supra), wherein the Hon'ble Supreme Court discussed the case of Champa Lal (supra) and settled the question of law vis-a-vis discretionary power of the Hon'ble Governor by referring to the judgment rendered by a three-Judge Bench in the case Parmar Samantsinh Umedsinh v. State of Gujarat & Ors. (2022) 15 SCC 364, relevant portions of which are reproduced as follows:

"13. In Champa Lal, this Court had struck down a notification issued by the Governor of the State

17/03/2025 at 10:30:45 AM) [2025:RJ-JD:966- DB] [CW-20142/2024] (32 of 36) in the absence of notification which meets the requirement of Article 243Q(2), the entire exercise undertaken by the State of Rajasthan in upgrading the Napasar Village Gram Panchayat to be a

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Nagarpalika is inconsistent with the requirements provided thereof under the Constitution. "14. We find that such judgment is not in tune with the scheme of the Constitution and is contrary to a three-Judge Bench judgment of this Court reported as Parmar Samantsinh Umedsinh v. State of Gujarat & Ors.7 wherein the vires of the Gujarat Provincial Municipal Corporation Act, 1949 were subject matter of challenge on the ground that the State law has provided more than one representative from a single Ward and, thus, this provision is inconsistent with the provisions of Article 243R and Article 243S of the Constitution. This Court held as under:

"19. The power of competent Legislature, i.e., State Legislature in the light of enabling provisions provided in the Constitution with regard to framing of laws concerning Legislature cannot be whittled down by way of restrictive interpretation as contended by the appellants. The State Legislature in federal set up specially in the matter of local Government are to enable enough seats to adopt the reservation based on local body. xxx xxx xxx

35. The ratio which can be culled out from the above judgment is that power of the State to legislate within its legislative competence is plenary and the same cannot be curtailed in the absence of an express limitation placed on such power in the Constitution itself."

15. This Court therefore observes that in the present case, the legislature is competent to enact any legislation within its competency and the power of the legislature cannot be whittled down or curtailed in absence of any express provision in that regard. Therefore, the provisions contained in the Act of 1994 and the Act of 2009 are well within the legislative power of the legislature and any administrative/executive action pursuant to the same will

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also be intra-vires the constitutional scheme and the principles of natural justice.

16. This Court further observes that the legality of the impugned notifications and the scope of non-interference in the instant case, depends upon the compliance with provisions of the Act of 1994 and the Act of 2009. 16.1. The relevant provisions in the present case are Section 3 of the Act of 2009 and Section 101 of the Act of 1994, which are reproduced as hereunder:

"3. Delimitation of Municipalities. - (1) The State Government may, by notification published in the Official Gazette, declare any local area not included within the limits of a Municipality to be a Municipality, or include any such area in a Municipality, or exclude any local area from a Municipality, or otherwise alter the limits of any Municipality and when (a) any local area is declared as, or included in, a Municipality, or (b) any local area is excluded from a Municipality, or

(c) the limits of a Municipality are otherwise altered, by amalgamation of one Municipality into another or by splitting up a Municipality into two or more Municipalities...

(10) Save as otherwise provided in this Section its provisions shall have effect notwithstanding anything contained in this Act or in the Rajasthan Panchayati Raj Act, 1994 (Act No.13 of 1994) or any other law for the time being in force."

"101. Alteration in the limits of a Panchayati Raj Institution.- (1) The State Government may, at any time, after one month's notice published in the prescribed manner either on its own motion or at the request made in this behalf, and by notification in the Official Gazette- (a) declare the whole or a part of any local area included within the limits of a Municipality to be a Panchayat Circle; or (b) include in a Panchayat Circle and such local area or a part thereof, or as the case may be, any local area included within

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the limits of another Panchayat Circle; or (c) otherwise alter the limits of a Panchayat Circle by amalgamating one Panchayat Circle into another or by splitting up a Panchayat Circle into two or more Panchayat Circles; ...

(7) Save as otherwise provided in this section its provisions shall have effect, notwithstanding anything contained in this Act or the Rajasthan Municipaities Act, 1959 (Rajasthan Act 38 of 1959) or any other law for the time being in force."

17. This Court observes that, the bone of the contention in the instant case, lies in the applicability of the Act of 1994 and the Act of 2009. The relevant provisions in the present case are Section 3 of the Act of 2009 and Section 101 of the Act of 1994. Section 3 does not expressly provide for any requirement vis-a-vis notice, however, Section 101 presents the requirement of one month's notice.

17.1. This Court further observes that both these provisions which expound different requisites contain non obstante clauses respectively, which ousts the applicability of the other Statute and corresponding relevant provisions within it. Therefore, for resolving the controversy at hand, it becomes pertinent to first answer the question as to which out of the two provisions will prevail if both of them have a non obstante clause.

17.2. This Court in this regard, observes that as per the judgment rendered in the case of Kotak Mahindra Bank Limited (supra), the position of law is that, when two enactments have competing non obstante provisions and nothing repugnant, then the non obstante clause of the subsequent statute would prevail over the earlier enactments and therefore the non obstante clause in the Act of 2009 would prevail over the non obstante clause in the Act of 1994.

17.3. This Court therefore observes that, in such a scenario Section 3 of the Act of 2009 would prevail over Section 101 of the Act of 1994, and in such a case, the

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requirement of one month notice as enshrined under Section 101 is not necessary to be complied with.

18. Further, with regard to the submission made on behalf of the petitioners regarding the failure to fulfil the principles of natural justice, specially the maxim of Audi Alteram Partem, this Court is conscious of the ratio laid down in the case of Ashok Khetoliya (supra), relevant paras of which are reproduced as follows:

"11. This Court in Tulsipur Sugar Co. Ltd. held as under:

"7. We are concerned in the present case with the power of the State Government to make a declaration constituting a geographical area into a town area under Section 3 of the Act which does not require the State Government to make such declaration after giving notice of its intention so to do to the members of the public and inviting their representations regarding such action. The power of the State Government to make a declaration under Section 3 of the Act is legislative in character because the application of the rest of the provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration. Section 3 of the Act is in the nature of a conditional legislation. Dealing with the nature of functions of a non judicial authority, Prof. S.A. De Smith in Judicial Review of Administrative Action (3rd Edn.) observes at p. 163: "However, the analytical classification of a function may be a conclusive factor in excluding the operation of the audi alteram partem rule. It is generally assumed that in English law the making of a subordinate legislative instrument need not be preceded by notice or hearing unless the parent Act so provides." xx xx xx

9. We are, therefore, of the view that the maxim "audi alteram partem" does not

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become applicable to the case by necessary implication."

19. This Court in light of the aforementioned, observes that in the instant case the maxim "audi alteram partem"

in absence of any express provision, is not applicable merely by necessary implication and therefore, the impugned notifications do not suffer from any illegality on that count as well. Thus, the Issue (ii), as aforesaid, stands answered accordingly.

20. This Court observes that the notifications impugned in the present writ petitions were issued in accordance with Article 243 Q of the Constitution of India & Section 3 of the Act of 2009 and without any deviation from the principles of natural justice. Resultantly, the impugned notifications do not suffer from any illegality, so as to warrant any interference by this Court in the present adjudicatory pursuit.

21. In light of the aforesaid observations, this Court does not find it a fit case so as to grant any relief to the petitioners herein, and the judgments cited at the Bar on behalf of the petitioners do not render any assistance to their case herein.

22. Consequently, the present writ petitions are dismissed. All pending applications stand disposed of."

2. Learned counsel for the petitioners does not refute the

aforesaid submission.

3. Accordingly, the instant writ petition is dismissed in terms of

the judgment passed by this Court in Motan Das (supra). All

pending applications stand disposed of.

(CHANDRA PRAKASH SHRIMALI),J (DR.PUSHPENDRA SINGH BHATI),J

51-nirmala/-