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MOHD. AZAM KHAN versus STATE OF U.P. THRU' PRINCIPAL SECY. & OTHERS

High Court of Judicature at Allahabad

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Mohd. Azam Khan v. State Of U.P. Thru' Principal Secy. & Others - WRIT - C No. 23537 of 2003 [2005] RD-AH 159 (12 January 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Chief Justice's Court

Civil Misc. Writ Petition No. 23537 of 2003

Mohd. Azam Khan vs. State of U.P. and others.

Connected with

Civil Misc. Writ Petition No. 25196 of 2003

Anil Batta vs. State of U.P. and others.

And

Civil Misc. Writ Petition No. 23042 of 2003

Rashtriya Panchayati Raj Gram Pradhan Sangathan U.P. Jhansi

Vs.

State of U.P. and others.

And

Civil Misc. Writ Petition No. 23547 of 2003

Anil Kumar Pandey vs. State of U.P. and others.

Hon'ble Ajoy Nath Ray,CJ

Hon'ble A.K. Yog, J

These writ petitions are disposed of together as they involve common grounds. The writ petitions were all entertained by the Division Bench, because of their classification. By reason of such classification those could not be presented, in accordance with rules of this High Court, before an Hon'ble Single Judge.

The facts and the disputes of the cases lie really within a very short compass. Sometime in the month of February 2002, 7th February 2002 to be exact, a notification was issued by the State Government for the purpose of formation of Jhansi Ngar Nigam, which was intended to be a larger Municipality than those existing. The exercise of power was made, basically under Article 243-Q of the Constitution of India which provides for specification of larger urban areas to be included within one Municipality. The several writ petitioners had, however, been sometime back, elected before this High Court. Their grievance was primarily directed against the notification issued in the year 2003, whereby, by exercise of powers conferred by Section 8-AA (1) (b) of the Uttar Pradesh Municipal Corporations Adhiniyam, 1959 (in short ''Adhiniyam 1959') (U.P. Act No. 2 of 1959) the District Magistrate had been appointed as Administrator for the purposes of discharging all the functions and duties of the smaller Municipality, its Mayor, Deputy Mayor, etc. The submission of the writ petitioners is basically founded upon Article 243 U of the Constitution of India. Sub Article 1 of Article 243-U of the Constitution reads as under:

"(1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer:

Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution."

The argument runs this way. It is submitted that without sooner dissolution, the Municipality is constitutionally entitled to continue for five years and because the Municipality is so entitled, the elected members also have the right to their term of office for five years. Once an administrator is appointed, for all practical purposes the Municipal Corporation stands dissolved, since it can exercise none of its powers and the elected members also have to keep their hands folded.

Under Section 8-AA (1) (b) of Adhiniyam 1959 power has been given for all functions and duties of the Corporation to be vested in and performed by an officer appointed by the State Government in this behalf. In the instant case that officer was stated in the order to be the District Magistrate.

The next argument on behalf of the petitioners was that there are certain pre conditions for exercise of powers under Section 8-AA. The primary pre condition for exercise of such powers is that the State Government should form an opinion about the expediency of the step intended, i.e. the step for appointment of an administrator over the smaller Municipality. It was not disputed that the larger Municipality of Jhansi had actually been already notified. It was argued nonetheless that even if the larger Municipality has already come into existence area-wise, even then the State Government must ex facie state in the order of supersession, or the order of appointment of the administrator, that the State Government thought it expedient to fill the gap before the final constitution of the larger Body, to have the duties of the Municipality performed by an administrator rather than by the already elected smaller body itself.

The third argument was made on this basis that the U.P. Act provides no specific time during which the administrator can function. Theoretically it would be possible on the very day after the members of a Municipal Body had been elected to suspend their powers and appoint an administrator for the whole of five years on the ground that the Government has that day decided to have a larger Municipality into which the smaller Municipality would merge. It was argued that the time unlimited power of appointment of an administrator for the whole of five years is unconstitutional power given in Section 8-AA, which offends both the words of the Constitution and the spirit of it, which has now granted positively the rights of self Government and local Government in various different forms.

As regards the first point that an elected member of a Municipality has a constitutional right to continue for five years, we need merely point to Article 243-U, which provides for dissolution of the Municipality under any law in force even before five years. Clearly the term of five years in not an unalterable term. The normal rule is for the Municipality and its elected members to continue for five years, but it is subject to all just and lawful exceptions. Accordingly, the challenge thrown to Section 8-AA of the Adhiniyam 1959 is not sustainable on its ground. The said Section i.e. Section 8-AA is quoted below:

"[8-AA. Temporary provisions for the constitution of Corporation and administrator of area notified as City-(1) Where any area has been specified to be a larger urban area under Clause (2) of Article 243-Q of the Constitution] and the State Government is of opinion that until the due constitution for such area under [the Constitution], it is expedient so to do, then the State Government may, notwithstanding anything contained in this Act or any other law for the time being in force, by order direct that--

"(a) the Municipal Council or any other local authority for exercising jurisdiction in such area shall, with effect from such date as may be specified in the said order, hereinafter in this section referred to as specified date, stand dissolved or, as the case may be, cease to exercise jurisdiction in such area;

(b) all powers, functions and duties of the Corporation, its Mayor, Deputy Mayor, [Wards Committee, Executive Committee, Development Committee and other Committees established under Clause (e) of Section 5 of the Municipal Commissioner shall as from the specified date be vested in and be exercise, performed and discharged by an officer appointed in that behalf by the State Government (hereinafter referred to as the Administrator) and the Administrator shall be deemed in law to be the Corporation, Executive Committee, Development Committee or other Committees, or the Municipal Commissioner as the occasion may require;

(c) such salary and allowances of the Administrator as may be fixed by general or special orders of the State Government in that behalf, shall be paid out of the Corporation fund.

(2) Subject to any general or special orders of the State Government, the Administrator may, in respect of all or any of the powers conferred on him by Clause (b)--

(i) consult such Committee or other body, if any, constituted in such manner as may be specified in that behalf; or

(ii) delegate, subject to such conditions as he may think fit to impose, the power so conferred to any person or Committee or other body constituted under Sub-clause (I), to be specified by him in that behalf.

(3) The provisions of this section shall be in addition to, and not in derogation of, the provisions contained in Section 579 and Section 580."

Apart from what is said above, there is a difference between a continuance of the Municipality for a period shorter than five years because of dissolution, and the appointment of an administrator before the period of five years is over. In one case the dissolution is fait accompli and the Municipal Corporation cannot be revived as it was the before. On the other hand if an administrator is appointed, such an administrator can be lifted or removed even the very day after, whereafter the Corporation itself would come back into functioning with full powers. The appointment of an administrator, therefore, is at least from this point of view, not a dissolution of the Municipal Corporation at all, and as such Article 243-U is not violated in any manner.

Regarding the formation of the opinion of the State Government as to the expediency of having an administrator before the larger Municipality comes into effective existence, the main argument made on behalf of the respondents was that there was not even a whisper of a challenge in the petition, to the effect that the State Government had passed the order for appointment of an administrator mechanically or otherwise without being satisfied as to the expediency of the appointment of an administrator. On behalf of the petitioners it was argued that it is for the respondents both to state in the order that the State Government had formed the opinion of expediency and also to show that such formation of opinion was genuine and bona fide. As regards the positive requirement of a statement of formation of opinion of expediency in the order itself, we are quite clear in our minds that the requirement of the State Act does not go that far. No doubt in all properly drafted State notifications, these statements, the substance of which are required as pre conditions, really do find place. However, non mention of such an opinion expressly is not a fatal defect. The State Government has to form the opinion but it does not necessarily also to have state in writing that it has formed such an opinion.

It was in our opinion correctly argued on behalf of the respondents that, had any serious challenge been thrown to the State Government not in fact considering it expedient to appoint an administrator, internal files and papers could have been produced and facts given in the counter affidavit to show that such opinion had actually been formed by the officers and the employees of the State Government concerned. The formation of a larger Municipality is not merely paper work done on the desk; a lot of preparation is needed. It cannot be done overnight; wards which are different from the previous ones, have to be delineated. It is conceivable that if councillors of small wards are still functioning and exercising their powers, the delineation of the new wards of the larger Municipality will not be undertaken with that smoothness and lack of obstruction as it could be undertaken under an administrator, who has not been elected, and who is not looking forward to five years of office in the Municipality.

We are of the opinion that a non mention of expediency by the State Government in the order of appointment of administrator is not so defective as to call for cancellation of the notification. We are of the further opinion that the notification of the larger Municipality already being in existence, and Section 8-AA being mentioned in the notification, the State Government was clearly intending to exercise its power in a particular direction and under well specified Sections, which put the petitioners on full notice; had they intended to challenge the bona fides of the exercise of that power or if they had intended to make out a case that in the facts and circumstances of the present situation the expediency pointed towards retention of the smaller Municipality rather than towards the appointment of an administrator, then and in that event, it was their duty to make known their challenge in their petitions. That not being done, the State Government had no case to answer.

The third point is about the non existence of any time limit for appointment of an administrator. The Supreme Court Case which is in point in this regard in the case of State of Maharashtra and another vs. The Jalgaon Municipal Council and others reported at A.I.R. 2003 S.C. 1659, and both sides relied upon this case. The respondents, in our opinion correctly placed reliance upon paragraphs 21 and 22 of the judgment. It is held there that once a better (in our respectful opinion "better" includes "bigger") Municipality is intended, then and in that even, there might be a gap between the non functioning of the earlier smaller Municipality and the commencement of the function of the larger Municipality. Such gap might not be permissible if the boundaries are not intended to be changed since that would violate the right to local Government. In this case a larger Municipality being already notified no question arises as to the time gap. Although the smaller Municipality is not now functioning, nor the larger one, yet the filling of the time gap by the administrator is not unconstitutional, as this is necessitated by the intended substitution of the larger and better Municipality in place of the smaller one.

The petitioners also sought to draw sustenance from this case, by referring to the Maharashtra Act 4 of 1995, Section 452-A of which, was considered by the Supreme Court in this case. The Section provided that the officer acting as an administrator would hold office for a period of six months or the first meeting of the larger Municipality whichever, is earlier. This meant that the administrator could act for six months at the most.

In our opinion, the non mention of a fixed period in the U.P. Act (like in the Maharashtra Act) does not render Section 8-AA (1) (b) unconstitutional. The appointment of the administrator has to be judged by the writ Court in the facts and circumstances of each case. There might be a case where a Municipal Body immediately after its election needs to be suspended by an appointment of an administrator because a sudden and urgent need arises immediately thereafter for appointment of a larger Municipal Body. These things cannot be predicted but have be judged by Courts of law. In the present case we find that the petitioners had served about two years of their term and the notification of appointment of an administrator came on 8th May 2003 which was roughly half way through the term of five years of the smaller Municipality. Immediately thereafter the petitioners had challenged the appointment of the administrator in this High Court and the order of stay of operation was passed by a Division Bench on the 23rd May 2003.

An Special Leave Petition be presented to the Supreme Court; the High Court's stay order was itself stayed in aid of the S.L.P. in December 2003 and finally on the 27th August 2004 the Supreme Court directed the High Court to dispose of the main writ petition, which we are doing now although not within three months as observed there.

The State Government accordingly has had its hands free from December 2003 for doing all their work for bringing the larger Municipality into existence. The elected officer bearers of the smaller Municipality who are before us would, in any event, vacate their office in or about November 2005. In these circumstances we do not find any glaring facts to show that the State Government has appointed the administrator not with a view to smoothening their work for bringing into existence the larger Municipality, but with an oblique view to cutting down the term of office of the elected office bearers for extraneous motives or other purposes; these allegations are also not there in the writ petitions.

In our opinion, therefore, neither is sub Section (1) (b) of Section 8-AA of the Adhiniyam 1959 ultra vires the Constitution, nor is the exercise of power under that sub Section vitiated by any proved improper motives or considerations.

In these circumstances, all the writ petitions will stand dismissed without any order with costs.

Dated:12.1.2005

RK/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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