Tarlok Singh Chauhan, Acting Chief Justice
1. On 28.07.2019, a meeting of Gram Sabha, Amb, was held, but no consensus could be arrived at with regard to granting of status of Nagar Panchayat of Gram Panchayat, Amb. However, in August, 2019, an unanimous decision was taken by the members of the Gram Panchayat that Amb Panchayat may be divided into two Gram Sabhas i.e. Gram Sabha, Amb and Gram Sabha, Partap Nagar and the same was approved by majority vide resolution dated 23.11.2019.
2. On 24.08.2020, a resolution was passed by the Gram Panchayat, Amb, wherein it was again reiterated that Gram Panchayat, Amb, may be divided into two Panchayats in view of consensus already arrived at and the same was forwarded to the respondents. However, respondent No.1 on 25.08.2020 issued a notification inviting objections from the residents of the area and various panchayats to submit their objections/suggestions, if any, to the proposed declaration of Nagar Panchayat, Amb, under the provisions of the H.P. Municipal Act, 1994, (for short ‘Act’). Later, vide notification dated 27.10.2020, the respondents declared Amb Panchayat as Nagar Panchayat, Amb and aggrieved thereby the petitioner has filed the instant petition for grant of the following substantive relief:
“It is therefore respectfully prayed that keeping in view the facts & circumstances of the case & in view of the submissions made here in above the present petition may kindly be allowed by quashing & setting aside the impugned notification annexure P- 14, which has been issued without deciding objections/representations annexures P-10 to P-13, where in details submissions have been jotted down by the petitioner as also various other residents/inhabitants of the area, by specifically pointing out that the notification would not only ruin them but the generations for all times to come as most of the agricultural land in the area is being used by the inhabitants of the area for agriculture, farming & livestock purposes for earning their bread & butter & if the notification is allowed to stand then virtually all the residents have to pay heavy taxes without there being any source of income as also contrary to the provisions of law. Thus the petitioner humbly prays that respondents may take into consideration the objections submitted by them annexures P-10 to P-13, by dealing them in a just & proper manner after affording the petitioner & other objectionists, as is evident from the plain & simple reading of the impugned notification that none of their objections have been taken into account while issuing the impugned notification annexure P-14, which may kindly be declared as illegal, arbitrary & unconstitutional & in the interest of justice.”
3. According to the petitioner, the respondents have not kept in mind the most important fact that the formation or creation of a Nagar Panchayat or Council and any other Municipal Body has to be in consonance with the wish of the majority of the people, who otherwise had only consented to the creation of the Gram Sabhas, as aforesaid. It is further contended that the notification constituting Nagar Panchayat is otherwise illegal as it does not fulfill the pre-requisites as required to form a Nagar Panchayat.
4. Respondent No.3 has filed the reply. Besides this, respondent No.3 has also filed a supplementary affidavit wherein it has been averred that Nagar Panahcyat, Amb, had been created in the larger public interest to provide civil amenities in the area. Moreover, the civil amenities are required to be provided to the area in larger proportion which the Gram Panchayat cannot cater to taking into consideration its meager resources. It is necessary for the State Government to provide basic amenities and other facilities to the residents of the area by constituting Nagar Panchayat. It is further averred that as per Section 3 of the Act, the State can constitute three classes of municipalities in accordance with provisions of this section i.e. Nagar Panchayat, Municipal Council and Municipal Corporation. The Nagar Panachayat is provided for a transitional area with population exceeding 2000 and generating annual revenue exceeding Rs. 5 lacs for the local administration. In the instant case, the Nagar Panchayat, Amb met both these conditions prescribed under the Act. Therefore, the Secretary (Urban Development) to the Government of Himachal Pradesh i.e. respondent No.1 while exercising powers conferred by sub-section (2) of Section 3 and sub- section (6) of Section 4 of the Act (State Act No. 13 of 1994) vide notification No.UD-A (I) 2/2012 dated 27.10.2020 had constituted the Nagar Panchayat, Amb, District Una after considering the objections/suggestions received from the inhabitants of the local area.
5. It has also been averred that under Section 268 of the Act, it has been stipulated that when a municipal area is constituted under the Act, the State Government may appoint a person to exercise the powers, discharge the duties and perform the functions of the municipality for a period not exceeding six months or until the municipality is established, whichever is earlier, and he shall for the purpose be deemed to be the municipality. The person so appointed under sub-section (1) shall comply with such directions as may be given to him by the State Government from time to time for carrying the said purposes. Declaring an area as an Urban Local Body does not divest the inhabitants of their rights on their landed property. The Urban Development Department provides schemes of poverty alleviation, wage employment, self employment and housing to the urban poor, besides facilities of urban nature. Furthermore, Town & Country Planning Act (TCP) and Shops & Commercial Establishment Act are already enforced in Gram Panchayat, Amb. The need of the hour is to create a Nagar Panchayat for better and planned development and well organized management of the region in accordance with the rapidly growing population, sanitation, solid and liquid waste disposal.
6. We have heard the learned counsel for the parties and have gone through the records of the case.
7. 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.”
8. 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.
9. Record reveals that the aforesaid procedure has not only been followed by the respondents before constituting the Nagar Panchayat, as a matter of fact, the objections were invited vide notification dated 25.08.2020 and thereafter the same were dealt with in the following manner:
“Details of objections/suggestions received with regard to exclusion of areas from/inclusion of areas in/creation of new Nagar Panchayat
(please tick which 25.08.2020 issued by Department of Urban Development.
| Sl No. | Name and address of the person | Brief Details of the objection/sugge stion | Recommendations/ comments of the DC |
| 1. | Smt. Reenu & other residents of Village Amb, District Una (H.P.) |
1. The main livelihood of the residents is agriculture and animal husbandry and formation of NP will hamper the trade of the maximum population of the Amb Gram Panchayat. 2. At present 748 job cards have been made by Panchayat who are working under the MNREGA and by formation of the Nagar Panchayat the jobs of these 748 persons will be lost and they will be deprived further from various rural schemes |
. Gram Panchayat Amb is mainly includes 06 revenue villages namely, Amb, Khas, Adarsh Nagar, Heera Nagar, Pratap Nagar, Mansoh Tikkari, Polian Jaswalan. This is an important emerging area of the Chintpurni assembly constituency from commercial & industrial aspect. There are about 1000 shops in the market of proposed ULB. All Sub Divisional level offices are located in the area and there is lot of public activity. Educational facilities like degree colleges, Senior Secondary Schools, Coaching Centre etc. are available. Gram Panchayat has more than 10 Bank Branches of major nationalized banks. Area also have a number of hotels, Marriage Palaces, Two Petrol Pumps and Four Marketing Complexes. After the declaration of this area as Nagar Panchayat, people of the area will benefit from schemes of Ministry of Housing and Urban affairs. |
| 2. | Smt.Aruna Kumari & others residents of Village Amb, District Una (H.P.) | obections are same as mentioned in Sr. No.1 & 2. 3. The Gram Panchayat doesn’t have any Industrial Units. | . H.P. Government have already notified Amb as an Industrial Area. It have Him cylinder and Saria Making Industries. Gram Panchayat have a sizable population of migrant workers from U.P. and Bihar. Besides this, Ten Bank Branches clearly indicate that this area have other economic activities other than Agriculture. |
| 3. | Sh. Balwinder Singh & other residents of Village Amb, District Una (H.P.) |
Objections are same as mentioned in Sl. No.1, 2 & 3. Additional objection submitted is as follows:- 1. The proposed notification cannot be implemented as it does not conform to the criteria of population so required, as the population of the Gram Panchayat is below 7,500 and is presently decreased to 5500 after the year 2018. 2. Him Alloys Steel Plant situated within Amb Area was closed in the year, 2018 and 700-800 workers who are living in the Gram Panchayat had left Amb after the closure of factory. One Sonlika International Pvt. Ltd. Company situated at village Kuthera Kherala, Tehsil Amb is there where a very small group of workers are working. |
. After the 2011 census, there has been more increase in the population of Gram Panchayat in 9 years. As per senses, 2011 the population of G.P. Amb was 7234. As per Pariwar Register of G.P. the present population is 7851. Besides this the migrant workers and employees are estimated to be appropriately 3000. . Him Cylinder Pvt. Ltd. And Him Alloys Steel Plant didn’t have any effect on the population of Gram Panchayat, Amb. Every year, there is an increase in the population of gram panchayats. In Pratap Nagar, there are additional new colonies, Panchavati colony, Ambika Colony & Professor colony. Thus, the population has increased over the years and it is incorrect to say that after the year,2018 the population of Amb has decreased. In Him Cylinder Ltd. And Him Alloys Steel approximately 60 percent of the people who were employed in aforesaid factories were local and are still living here. The facts given about Him Alloy Steel are incorrect. . To provide better civic facilities to the residents/daily commuters, it is imperative to make the area an urban local body |
| Applications in favour of constitution of N.P. Amb | |||
| 4. | Nagar Parisad Sangharsh Samiti (NPSS), Amb. |
NPSS informed that Sub Division Amb is one of the oldest Sub Division of District Una and total population is approximately more than 15000 out of which approximately 8000 are local residents and around 7000- 8000 are people belong to other areas. Further, they informed that approximately 1200 shops are there . On the line of Urban area, already TCP, Act and Shops & Commercial Establishment Act are implemented in Amb Area. In addition to above, Amb area various Govt. Offices, Education Institutions and Training centers, Railway Station, Truck Union. Under mentioned problems will resolved afte formation of N.P:- 2. Drainage. 3. Cleaning of drainage. 4. Provision of sewage lines. 5. Street lights. 6. Installation of community toilets. 7. Parking. 8. Provision of hackers streets. |
. Fast growing population, clean solid and liquid garbage disposal, better and planned development of the area and well organized system for the development of residents of Amb, it is a timely demand for constitution of Nagar Panchayat, Amb. It is pertinent to mention here that Town and Country Planning Act and Shops & Commercial Establishment Act already applies in Amb Area. |
| 5. | Sh. Rajneesh Kumar, Pradhan, Truck Union Amb | -do- | |
| 6. | Sh. Bupinder Singh, Member, Zila Parisad, Distt. Una. | -do- | |
Keeping in mind the report of Sub Divisional Magistrate, Amb in relation to all the above mentioned objections/suggestions received and the overall situation of Gram Panchayat Amb, the constitution of Nagar Panchayat, Amb is justified and rational. Hence recommended.
Sd/-
(Sandeep Kumar) IAS Deputy Commissioner, Una, District Una (H.P.)”
10. It is only thereafter that the notification constituting Nagar Panchayat was issued.
11. It is more than settled that the function of the Government in establishing a Nagar Panchayat under the Act is neither executive nor 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. Since, the statutory provisions have been complied with in the instant case, the declaration of Nagar Panchayat by the impugned notification cannot be faulted with.
12. As regards the second contention of the petitioner that the Nagar Panchayat so constituted does not meet the requirement of Section 3 of the Act, we again find no merit in the same as the Nagar Panchayat in the instant case has been constituted for a transitional area with population exceeding 2000 and generating annual income exceeding 5 lacs for the local administration. Once that be so, obviously, the contention of the petitioner is liable to be rejected.
13. In view of the aforesaid discussion and for the reasons stated above, we find no merit in the instant petition and the same is accordingly dismissed, so also the pending application, if any.
