(Per : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN) Constitution of India is the creation of the sovereign which reflects will of the people and is the fountain-head of all the statutes. Recognition of the popular will of the people through electoral process promotes constitutionalism, which ensures diffusion of powers, necessitates different independent centers of decision making. Peoples' participation in the democratic and development process was a concept originated from the Directive principles of the State policy which ultimately gave rise to 73rd and 74th Constitutional amendment, which ensured direct election by the people in the same manner at the Union and State levels. Reservation of seats for women, Scheduled Castes and Scheduled Tribes is also a constitutional requirement. Chapter IX-A of the Constitution was introduced to make Municipal Corporation to function as a vibrant unit of local administration in the urban area resulting rapid implementation of urban development programmes.
2. Petitioner is a registered organization under the Societies Registration Act and also under the provisions of the Bombay Public Trusts Act. Petitioner has approached this Court seeking a direction to the State Government to constitute a Municipal Corporation for Gandhinagar City, as required under Part IX-A of the Constitution of India read with Section 5 and Section 2(8) of the Bombay Provincial Municipal Corporation Act.
3. Petitioner submits that it is incumbent upon the State Government under Article 243Q and 243R to constitute an elected local self-government for every urban area of the State. Petitioner submits that the population of Gandhinagar city was 1,95,985 according to the 2001 census and it covers an area of 56.73 square kilometers having a population of 3453 per square kilometers and number of household was 41,661. Of late the city was developed to a major urban area and State Government had constituted Gandhinagar Notified Area Committee under Section 264A of the Gujarat Municipalities Act,1963. Later, with the coming into force of 74th Constitutional Amendment with effect from 1.6.1993, Gujarat Municipalities (Amendment) Act, 1993 was enacted, which came into force on 20.8.1993, with the result the power of the Government to declare or continue any urban area or part thereof as notified area was withdrawn and was restricted to Industrial Township only.
4. Gandhinagar was not an industrial township and it ceased to be a notified area by 31.5.1994 on the expiration of one year from the commencement of the 74th Constitutional Amendment. Resultantly, it was imperative for State Government to form an elected body at Gandhinagar in the place of Gandhinagar Notified Area Committee. Petitioner submits that Gandhinagar is a larger urban area as depicted in Article 243Q and it qualifies to be declared as a city under said Article and also under Section 2(8) read with Section 5 of the Bombay Provincial Municipal Corporation Act. Based on various representations, the issue was placed before the Legal Department of the Government of Gujarat and Legal Department, after examining various constitutional provisions opined vide Notings dated 4.3.1997 as follows:-
Article 254-Q of the Constitution of India provides for the constitution of Municipalities in the Urban Area as specified therein. However, by a proviso thereto, it is provided that a Municipality may not be constituted in such Urban Area as the Governor may having regard to 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. Thus, Article 243-Q of the Constitution is mandatory under which the State Government is required to constitute a Municipality for an Urban Area which is not declared to be an Industrial Township. Now in view of Section 264-A of Gujarat Municipalities Act as amended by Gujarat Act No.17 of 1993, the City of Gandhinagar no longer remains the Notified Area. From the file of the Department and the noting therein, it does not come out whether the State Government has declared Gandhinagar as an Industrial Township. If that is so, then the State Government cannot take recourse to the proviso to Article 243Q of the Constitution. Looking to Article 243ZF of the Constitution, the city of Gandhinagar has ceased to be a Notified Area after the expiration of one year from the commencement of the Constitution (74th Amendment) Act, 1992. Thus, in view of these circumstances, if Gandhinagar city is not declared to be an Industrial Township, then by virtue of Article 243Q clause (1) of the Constitution, it is mandatory on the part of the State Government to constitute a Municipality for the city of Gandhinagar; neither article 243-Q of the Constitution nor Section 264A of the Gujarat Municipalities Act, 1963 gives any time to the State Government to delay or defer the constitution of the Municipality for the city of Gandhinagar.
3. Government was alert and conscious of the constitutional requirements and giving due deference to the legal opinion and also the popular opinion expressed by various organizations, it was decided to conduct a study of the functioning of similar Municipal Corporations elsewhere in the country. Officials of the State Government visited Chandigarh and explored the possibility of forming a Municipal Corporation in the Chandigarh pattern of Municipal Corporation. Opinion was expressed that Chandigarh patten is too rudimentary and does not meet with the spirit of the 74th Amendment to the Constitution. The structure, delegation of powers and functions assigned to the Chandigarh Corporation were found not befitting to a modern, urban Local self-governing body of a progressive State capital like Gandhinagar. No further action was taken by the Government since then, and the constitutional requirement of forming a Municipal Corporation was kept in the cold storage. Petitioner therefore invoked the jurisdiction of this Constitutional Court to see that the constitutional requirement of forming Municipal Corporation at Gandhinagar be complied with by the State Government.
4. Learned counsel appearing for the petitioner Shri Jayant Bhatt elaborately took us through various constitutional provisions which appear in Part IX-A and submitted that it is a constitutional obligation of the State Government to constitute Municipal Corporation for a larger urban area like Gandhinagar and non-compliance of such constitutional requirements is a serious inroad into citizens rights and it would undermine the object and purpose of the 74th Constitutional Amendment Act, 1992. Learned counsel referred to the 74th Constitutional Amendment and submitted that it is obligatory on the part of the State to take steps to organize Village Panchayat and endow them with power and authority as may be necessary to enable them to function as units of self-government. Functions of Panchayat and those of Municipalities have been enumerated and listed in 11th and 12th Schedules. Further it is pointed out that Article 243W empowers the State Government to endow Municipalities with powers and authorities as may be necessary to enable them to function as institutions of self-government. Learned counsel submitted that in action on the part of the State Government in giving effect to Article 243Q is illegal and violative of fundamental rights guaranteed to the citizens.
5. Learned Advocate General on the other hand contended that the Government found it unnecessary at the present juncture to form a Municipal Corporation at Gandhinagar. Legal opinion submitted by Legal Department was discussed at the Government level and initially it was thought of forming such a Corporation for which Officers of the State Government visited various places including Chandigarh, but it was later on felt that it may be unnecessary to form a Corporation at Gandhinagar at that juncture, taking into consideration the views expressed by the people who are living in and around Gandhinagar city. He submitted that Government is providing all civic amenities and facilities to the citizens of Gandhinagar and they are happy with the present set-up. On formation of a Municipal Corporation at Gandhinagar, unnecessarily people would be subjected to local taxes which may be a burden to them since most of the inhabitants in and around Gandhinagar are Government employees. Further it is also stated that there is no obligation on the part of the State Government to constitute such a Corporation. Clause 2 of Article 243Q is not a mandatory provision and the Government have got discretion as to whether a Municipal Corporation has to be formed for urban area or not. Learned Advocate General submitted that under Article 226 of the Constitution of India, the Court cannot compel State Government to form a Municipal Corporation. Learned Advocate General referred to the decisions of the Apex Court in (1) Tulsipur Sugar Co. Ltd. Vs. The Notified Area Committee, Tulsipur - (1980) 2 SCC 295, (2) State of Punjab Vs. Tehal Singh and ors. - (2002) 2 SCC 7, (3) Supreme Court Employees Welfare Association Vs. Union of India - (1989) 4 SCC 187 and (4) State of Karnataka Vs. State of A.P. and ors. - 2000 (9) SCC 572 and submitted that Clause 2 to Article 243Q is legislative in character and the Court cannot compel the State Government to exercise powers to legislate especially under Article 226 of the Constitution of India.
6. Detailed counter affidavit has been filed on behalf of the State Government and it is stated in the counter affidavit that city of Gandhinagar is completely developed having all amenities and infrastructural facilities like water, drainage, street lights, medical services, sanitation, solid waste disposal, roads, parks and gardens, crematoriums and no major complaints are received from citizens of Gandhinagar with regard to lack of any public facilities. Further it is stated that State Government had in fact received representations requesting to desist from forming local self-government for the city of Gandhinagar as in the event of there being a Municipal Corporation, various taxes will come into force and the burden of the said taxes will have to be borne by the citizens of Gandhinagar. Further it is also stated that power to declare a larger urban area, namely Municipal Corporation is vested in the State Government under Article 243Q (2) of the Constitution of India and that by declaring any area as a larger urban area, the State Government has to take into consideration various factors like population of the area, density of the population, revenue generated for local administration, percentage of employment in non-agricultural activities and various other economic factors. Taking into consideration all these aspects, State Government felt that there is no necessity to form a Municipal Corporation at Gandhinagar.
7. The manner in which the urban and local bodies were functioning in India was subjected to serious criticism at various levels. It was noticed that in many States the Urban and Local bodies were not able to perform effectively as vibrant democratic units of self-Government. They had become weak and ineffective on account of a number of reasons such as failure to hold regular elections, prolonged suppression and inadequate devolution of powers and functions. Taking into consideration these inadequacies it was felt that the provisions relating to Urban Local Bodies should be incorporated in the Constitution particularly for putting the relationship between the Urban Local Bodies and the State Government on a firmer footing with respect to the functions and taxation powers and the arrangements for revenue sharing, ensuring regular conduct of elections, ensuring timely elections in case of super-session and providing adequate representation for the weaker sections and Scheduled Castes, Scheduled Tribes and women. Accordingly, by the Constitution (Seventy Fourth Amendment) Act, 1992, a new part viz. Part IX-A was added in the Constitution to make provisions with respect to Urban Local Bodies. These provisions have been inserted with a view to provide for the setting up of democratic institutions at the grass root level.
8. Article 243Q, inter-alia, provides for setting up municipalities in urban areas and Article 243-T requires all seats in the municipalities to be filled by persons chosen by direct election. Reservation of seats for Scheduled Castes, Scheduled Tribes and women is required to be provided for by virtue of Article 243T of the Constitution. Article 243U deals with duration of Municipalities. Article 243V deals with disqualifications for membership. Article 243W deals with powers, authority and responsibilities of Municipalities. Article 243X deals with power to impose taxes by and funds of the Municipalities. Article 243Z deals with audit of accounts of Municipalities. Article 243ZA deals with elections to the Municipalities. Article 243ZD refers to constitution of the Committee for district planning. Article 243ZE refers to formation of Committee for Metropolitan planning. Article 243ZF pertains to continuance of existing laws and Municipalities and Article 243ZG restricts interference by Courts in electoral process of the Municipality etc.
9. By non-formation of the Municipal Corporation at Gandhinagar, the constitutional requirement providing above mentioned provisions has been given a complete go-bye. We extract below Article 243Q dealing with Constitution of Municipalities, for implementation of which, this writ petition has been preferred.
243Q .
Constitution of Municipalities.
- (1) There shall be constituted in every State, --
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area.
(b) a Municipal Council for a 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.
(2) 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.
10. Article 243Q, in our view, casts an obligation on the State Government to constitute, in the instant case, a Municipal Corporation at Gandhinagar. Such a Municipal Corporation has to be constituted in accordance with the provisions of Part IX-A of the Constitution of India. Article 243P read with Article 243Q indicates that a Corporation or a Municipal Council or Nagar Panchayat is constituted on the strength of population and the area or place where it is situated, namely rural or urban. Article 243 constitutes three types of Municipalities, namely Nagar Panchayat, Municipal Council and Municipal Corporation. Proviso to Article 243Q deals with all the three types of Municipalities constituted under Class-I. Proviso to Article 243Q states that a Municipality under Clause 1 may not be constituted in such urban area or part thereof, having regard to the size of the area and Municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors relating to the industrial township. Government is empowered to specify an industrial township, keeping in view all the factors enunciated in the proviso to Clause 1 to the above mentioned Article. Government is also empowered to specify a larger urban area by public notification, keeping in view the factors narrated in Clause 2 of the said Article. Gandhinagar is not an industrial township and therefore, has not been notified as such and hence, Gandhinagar township has to be specified as a city under Section 2(8) of the Bombay Provincial Municipal Corporation Act. State Government is duty bound to constitute a Municipal Corporation under Section 5 of the Bombay Provincial Municipal Corporation Act, as amended by Gujarat Act 16 of 1993.
11. We are of the view that the above mentioned requirements highlighted by us are constitutional requirements and State Government cannot shirk their responsibility in enforcing the constitutional obligations and duties cast upon them. The reasons indicated for not forming a Municipal Corporation at Gandhinagar, in our view, are flimsy, unconvincing and irrational. State Government is under a constitutional obligation to give effect to Article 243Q and other related Articles contained in Part IXA of the Constitution. Contention sought to be canvassed by learned Advocate General that requirements are legislative in character and therefore, this Court cannot direct the State Government to legislate under Article 243Q of the Constitution, has no basis. Requirement of formation of Municipal Corporation, in our view, is constitutional requirement. If statutory requirements and constitutional requirements are not complied with, it is the bounden duty of a Constitutional Court to direct the State Government to implement those constitutional requirements. Failure to do so by Constitutional Court will be failure to uphold the Constitution and the laws.
12. Disobedience to the constitutional mandate is the disobedience to the Constitution itself and would result in breaking down the federal polity leading to a constitutional impasse. Constitutional Court has a duty and an obligation to alert the Government of the State of its disobedience and the possible consequences of its non-compliance. We have noticed that initial enthusiasm to uphold the constitutional mandate subsided later due to certain unknown reasons and time is running out for the State, and if violation persists, it may lead to constitutional breakdown with disastrous consequences. Functionaries like legislators, members of the Executive and the Judiciary have taken oath of allegiance to the constitution and all derive their authority and jurisdiction from the constitutional provisions. Article 15(3) obliges the State to create special provisions for women and Article 15(4) enables the State Government to make reservation for Scheduled Castes, Scheduled Tribes. Reservation of seats in Panchayats and Municipalities have been provided by 73rd and 74th Constitutional Amendments and those constitutional requirements are not being given effect to, due to the inaction on the part of the Government in not implementing Article 243Q of the Constitution of India.
13. We are therefore, inclined to give a direction to the State Government to form a Municipal Corporation at Gandhinagar in accordance with the constitutional requirement of Article 243Q, within a period of six months from today. State Government would take further follow-up action to give effect to the constitutional mandate contained in Chapter IX-A of the Constitution. Ordered accordingly.
Petition stands allowed. Rule is made absolute.
(K.S.
Radhakrishnan, C.J.) (Akil Kureshi, J.) */Mohandas Top