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TMI Blog1981 (9) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to intervene out of whom 9 are Mukhiyas and 6 are surpanchas of some of the Gram Panchayats which have been included within the limits of the porporation. There is also one punch of a' Gram Panchayat. Petitioners Nos. 16 and 17 are the Secretary and General Secretary of the Taxation Bar Association, Muzaffarpur, petitioner No. 18 is the General Secretary of the Bar Association, Muzaffarpur and petitioner No 19 is the Convenor of Sawami Sahajanand Saraswati Smarak Samiti. They also support the original petitioners. On the date of the admission of the application itself a caveat was filed by 9 persons of whom caveator No. 9 ultimately backed out, They include the Vice-President of the Bar Association, Muzaffarpur, Chairman Citizens Assistance Council, Secretary District (Cong. I) Committee, Chairman, Town Congress Committee, two Mukhiyas and two villagers. They oppose the application. The petitioners of C. W. J. C. No. 1391 of 1981 are two Mukhiyas of Gram Panchayats. Their case is also same as of the petitioners of the other case. Amongst the respondents, apart from State of Bihar and certain officers, Dr. Jagannath Mishra, Chief Minister of Bihar and Sri Ramesh Jha, Urban D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n areas suggested to be included fell within the jurisdiction of Muzaffarpur Improvement Trust. A map and details of the areas to be included were all given. It was first placed before the Cabinet on 14-4-1981 as would appear from Annexure 5, but it was postponed. Ultimately on a fresh memorandum it was again placed on 12-5-1981 when it was approved as would appear from Annexures B1 and B2 to the supplementary counter-affidavit of the respondents. Annexure 1 is the notification which followed after the said Cabinet approval. Respondent No. 7 was appointed Administrator and he took charge on 18-4-1981 i.e., within two days of the notification, 5. The petitioners namely Chairman and Commissioner of the Muzaffarpur Municipality and the Mukhiyas of the Panchayats, who are all elected office bearers have challenged the constitution of the Muzaffarpur Corporation on the ground that their period to continue in their respective offices have been cut short by taking recourse to an undemocratic method. Petitioner No 1 of C. W. J. C. No. 1324 of 1981, Sri Raghunath Pandey, the Chairman of the Municipality, has attributed motive to the Chief Minister, respondent No. 2, for this action. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the people residing out of the municipal limits or within the panchayat was not taken in any manner. Further argument has been that it was their fundamental right to continue till their term of election and if that has been infringed that would amount to civil consequence, and as such, even in administrative action, rule of audi alteram partem (a rule of natural justice) was required by law to be followed, which was not followed, and hence constitution of the corporation must be struck down. It has also been argued that the suburban areas included in the corporation do not at all bear any urban character and as such they could not have been included in the corporation. The action of the State Government is also said to be in violation of Articles 14, 19 and 21 of the Constitution. 7. After the Advocate General had concluded his argument on behalf of the respondents a supplementary affidavit on behalf of the petitioners was filed which was not accepted on the objection raised by the Advocate General. 8. Counter-affidavits have been filed on behalf of the respondents in both the cases. It is admitted that the population of Muzaffarpur Municipality fell short of the requiremen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) when the alteration of the existing boundaries of the municipality were involved the provisions of Section 2 (3) of the Corporations Act were attracted which were not followed. (2) Since civil consequence of the petitioners are involved and since it is a case of delegated legislation the principles of natural justice are attracted which have not been followed. (3) If the rules of natural justice be excluded Section 2 (1) of the Corporations Act will become unconstitutional as being violative of Articles 14 and 21. (4) The notification is factually arbitrary and is hit by Article 14 of the Constitution. (5) The mala fide motive of the Chief Minister has vitiated the entire action. 11. For appreciating the first point (page 8) it is necessary to refer first two sections of the Corporations Act. The English rendering of the sections is as follows :-- 1. Short title, extent and commencement.- (1) This Act may be called the Bihar Municipal Corporations Act, 1978. (2) It shall extend to the whole of the State of Bihar. (3) It shall come into force in any city having a population of two lakhs or more on such date as the State Government may appoint by notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Muzaffarpur within its municipal limits had a population of about 10,000 less than that what is required, and so ordinarily a corporation could not have been constituted, but there is another relevant clause in Sub-section (3) itself and that gives the date on which the population should be 2 lakhs or more, and that date is the date of notification. It, therefore, comes to this that on the date of notification the population should be 2 lakhs or more. Obviously the difficulty, if for any reason the Government choose to have a corporation at any place lesser population, can be overcome by extending the area of the city itself. Whether this can be legally done or not is provided in Section 2. This section says which areas can constitute a corporation. The opening sentence itself shows that corporation may be declared for any area . It is further made clear by saying that it may include (a) the area of any municipality or notified area and (b) such other areas as may be specified therein (underlining mine). If the population of the municipal area of the notified area falls short of the required population such other'' areas round about it may also be included in the corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State Government were justified in holding that those areas had come to assume urban character. The caveators in paragraphs 3 and 4 of the caveat have said that the areas included are mostly within the radius of about 4 to 5 miles of the heart of the town. The newly added areas according to them contain various institutions and offices like L. N. Mishra Institute of Business Management, office of the Director of the Animal Husbandry, M. P. Singh Science College, Medical College, Aerodrome, office of the Chief Engineer, Gandak Project, Engineering College, police line etc. etc., The counter-affidavit on behalf of the respondents also shows in paragraph 4 that they are all urbanised, electrified connected with pitch road at various places, some of them having drainage and water supply and other facilities. It also says that quite a number of factories, schools, mills, shops, police line, furniture mart, cold storage, housing colony, aluminium factory etc. etc. are there. Over and above, it has been said that the people there are engaged mostly in non-agricultural works. Reference may be made to Annexures 3 and 4 of the petition through which enquiry on the point was made by the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e chances thereof are surely better if the area is within corporation. Hence Article 48 of the Constitution is not violated by bringing suburbs within the corporation limits. In my opinion, therefore, the suburbs added bear urban character and the State Government have rightly satisfied themselves on the point. 15. It has further been argued that the inclusion of the Gram Panchayat is in violation of P. R. Act. Section 3 of that Act deals with the establishment and constitution of the Gram Panchayat. The first two Sub-sections deal with initial constitution of the Gram Panchayat and the next two Sub-sections deal with inclusion and exclusion of any portion from that area. For better appreciation I would quote the first four Sub-sections of Section 3 of the P. R. Act. They are as follows:-- Establishment and constitution of a Gram Panchayat:-- (1) For every village or part of different villages, the Government may, by notification, establish a Gram Panchayat:-- Provided that the Government may, if it thinks fit, establish one Gram Panchayat for a group of contiguous villages or more than one Gram Panchayat in a big village consisting of several Tolas. (2) The Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J.R. 227 (Ramautar Mahton v. Sub-divisional Officer, Begusarai 1965 B. L. J. R. 397 (Daroga Singh v. State of Bihar) and 1966 B. L. J. R. 779 (Braalal Prasad v. State of Bihar). The first two are single Judge cases but the third one is a Division Bench. Brijlal Prasad's case was dismissed on the . ground of delay but the earlier two single Bench decisions have also been noticed. Mr. Mridul has challenged these decisions on the ground that there is violation of natural justice by taking recourse to such a method, and merely issuing two notifications in a different garb instead of one, gives the colour of contrivance which is unconstitutional. The learned Advocate General has submitted that if the notification can be supported by the P. R. Act it can never be said that they are unconstitutional until and unless the provision itself held to be ultra vires. The argument of the Advocate General is supported by the decision of this very Court and as such it cannot be said that issuing of notification would be unconstitutional. It would thus follow that the opinion of the Panchayats as or in the manner laid down in Sub-section (3) of Section 3 of the P. R. Act, was not required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied that any municipality, or any area in a municipality, does not fulfil 'the conditions specified in clause (a), or when the Commissioners at a meeting have made a recommendation in this behalf, the State Government may declare its intention to withdraw such municipality from the operation of this Act, or to exclude such area from such municipality. (c) When the Commissioners at a meeting have made a recommendation in this behalf, the State Government may declare its intention to include within a municipality any area contiguous to the same or to subdivide any municipality into two or more municipalities. (d) When the Commissioners of each of the municipalities concerned at a meeting have made a recommendation in this behalf, the State Government may declare its intention to unite two or more municipalities so as to form one municipality. (2) Every declaration under this section shall be published in the Official Gazette and in such other manner as the State Government may direct. . (3) If any part of a town or local area affected by any declaration under this section is a cantonment or part of a cantonment, no declaration under this section shall be made. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, when the constitution of a corporation is under the Corporation Act which does not provide for any such notification declaring the intention and inviting objections. Of course the intention of the State Government in this regard is further made clear by the repeal of the words proposed to be from Section 2 (3) (b) of the Corporation Act as mentioned in para 11 of this judgment. When the legislature has laid down an unambiguous law, it is submitted, there is no use to trying to camouflage it with reference to the provisions of any other Acts. 17. Mr. Mridul has further contended with reference to the provision of the Municipal Act and P. R. Act already discussed that when the legislature enacted the Corporation Act but did not lay down a rule for inviting objection from existing municipalities and panchayats in respect of alteration of other areas, it would be presumed that the legislature did not desire to depart from the existing requirements (under P. R. Act and Municipal Act) while constituting the corporation under the Corporation Act. In this view propounded by him, it was argued that Sub-sections (2) and (3) of the Corporation Act (inviting objection for including or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the municipality by a contrivance which is unconstitutional. This argument is also challenged on the very same ground on which the arguments based on Sections 4, 5 and 6 of the Municipal Act have been refuted Obviously the situation envisaged in Section 385 of the Municipal Act is quite different from the situation under which corporation is constituted. While the situation in Section 385 gives strong stigma to the commissioners, no such stigma is involved against them in constitution of corporation. 19. It would thus appear that the grounds on which the vires of the notification (annexure 1) is challenged are not tenable in law and as such the notification is not ultra vires but intra vires the Corporation Act. 20. Coming to the second point (at pags 9 of the judgment) with the creation of the corporation, the municipality and some gram panchayats have no doubt ceased to function. The Chairman and Members of the Committee as also the Mukhiyas had a right to continue for the period they were elected. They were endowed with certain rights and burdened with certain responsibilities, all of a nature commanding respectful regard from the public. Therefore the consequences the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khs? The Corporation Act would have applied straightway, the Chairman and Commissioners would not have been heard at all. even though they would have suffered the same consequence, which they are suffering now. How can the same consequence be civil in one case only to enable them to raise the plea? In my opinion whether it is a case of civil consequence or not should be determined on facts of individual cases and the answer to this question must be given after considering not only the rights of a few but the rights of the general public going to be affected, and for the simple gains of a few the advantage to the mass must not be sacrificed. Taking a pragmatic view of the situation, I am of opinion that the consequences which the petitioners may suffer will be such a small drop in the ocean, that in the larger interest it should be held that the petitioners also do not suffer from any civil consequence, 21. Certain authorities have been cited to say that where civil consequences follow the rule of natural Justice (audi alteram partem) has to be followed even in an administrative action. Assuming for the sake of the argument that the petitioners will suffer civil consequences in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erations when his name was being considered but he had certainly taken part when his contestants (some of whom were even senior to him) were discussed. Mr. N was a Judge in his own case, which is abhorrent to concept of justice. In this circumstance it was held that there was miscarriage of justice caused by non-observance of the rule of natural justice. Here the natural justice was not the rule of audi alteram partem but it was rule according to which Mr. N should not have been a member of the board. It has been mentioned in this very authority that rules of natural justice are not embodied rules and what particular rule should apply to a given case must depend on facts and circumstances of the case. The learned counsel for the petitioners has cited this authority only for showing that in administrative enquiries also rule of natural justice should follow. Selection of Mr. N certainly cast a stigma on officers senior to him. On facts the case is entirely different and has no application whatsoever. (iii) In the case of Daud Ahmad v. District Magistrate, Allahabad ( AIR 1972 SC 896), Daud Ahmad had a house in Allahabad which was requisitioned for the residence of the Chief Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing of which they are being deprived. Upgradation of municipality or even panchayat should not be taken as entailing civil consequences. The petitioners here cannot be said to represent the entire population of the corporation area. They are elected bodies for certain purpose under the Bihar and Orissa Municipal Act or P. R. Act. If at all they suffer any loss that would be absolutely negligible as indicated earlier. Apart from that, if they or the members of any portion thereof are aggrieved by the creation of corporation, there is a provision in the Act for taking that area out of corporation. If, therefore, they have any grievance it is not that there is no provision for redressal. If it be held that in all administrative actions rule of audi alteram partem shall be applied, that can be taken as cured by the provision of exclusion given in the Act itself. In Maneka Gandhi's case even when there was no provision the lacuna was taken as filled up by the assurance of reconsideration. This case has also, therefore, no application. (v) In the case of S. L. Kapoor v. Jagmohan ( AIR 1981 SC 136) the Lt, Governor of Delhi under Section 12 of the Punjab Municipal Act 1911, as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going to show on facts and also on law the case has no application to the instant case. The scheme of that Act has been given in paragraphs 45 to 51 of the report. Section 15 gives power to the Central Government, to cause investigation to be made into a scheduled industry or industrial undertaking before taking over the same. So before the industrial undertaking is taken over an investigation has to be made -- this is of importance. Section 16 empowers the Central Government to issue proper direction to the industrial undertaking on completion of the investigation. The directions that can be given are all indicated there. The investigation and the directions obviously required sufficient time. It was felt that the Government could not take over the management of any industrial undertaking even in a situation calling for emergent action without first issuing directions to it and waiting to see whether or not they were obeyed. In order to remove such difficulty Sections 18A to 18F were introduced in the I, D. R. Act. Even these provisions were found insufficient to cover certain contingencies and, therefore, Section 18AA was inserted with heading ' 'power to take over indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omission of the word proposed to be from Section 2 (3) (b) of the Corporation Act. If those words had been left there it would have been obligatory on the part of the State Government to seek the view of the people affected. By omitting those words the intention is clear that the legislature did intend to include the provision of eliciting opinion. Eliciting prior opinion is a rule of natural justice, parallel to or the same as the rule of audi alteram partem. The rule of natural justice is not a codified rule, ,it varies from situation to situation. The phrase is not capable of a static and precise definition. It cannot be imprisoned in the strait-jacket of a cast-iron formula (para 24 of the report -- Swadeshi Cotton Mills). Needless to repeat that by constitution of the Muzaffarpur corporation absolutely no stigma is caused against the petitioners (as could have been caused in the case of supersession of the municipality) nor any requirement of law has been violated. The case of Swadeshi Cotton Mills. therefore, also does not help the petitioners. 22. Thus the impugned notification (Annexure 1) does not offend against the principle of natural justice, on the ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ails to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation...... It would appear from above that in a conditional legislation the law is complete in itself and certain conditions are laid down as to how and when the law would be applied by the delegate. In other words the delegate, namely the State Government here, has only to be satisfied if what it is going to do, is in conformity with the conditions laid down in the law. On the other hand, in a delegated legislation only some broad principles and policy are laid down and the details have to be filled up by the delegate namely the State Government. To give concrete example, when a law authorises the State Government to frame rules for carrying on the purposes of the Act, those rules that are framed are under delegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to interfere with it by law. I have shown above and I am also going to show hereafter that the Act by which it has been done is quite constitutional. Article 14 of the Constitution runs as follows :-- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India . Mr. Mridul who has taken both the Articles together has assailed the Corporation Act on the grounds which I am now going to discuss. (i) The first argument is that Councillor and Mukhiyas will be visited with civil consequence and no procedural safeguard has been provided for regulating the exercise of power of the State Government. This point I have already discussed in detail and hence I need not dwell upon it any further. I may only say that what has been done is perfectly authorised by the Corporation Act. (ii) The next argument is that the provision is not reasonable because in the cognate statutes namely P. R. Act and Municipal Act there are provisions for safeguarding the interest of the public. In the P. R. Act there is no provision for eliciting opinion of people for initial constitution of the panchayat. In Municipal Act which is of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and Ranchi had already been converted into corporations. Both these were in South Bihar. The Government from administrative point of view thought it desirable to have at least one in the North Bihar also, and with this end in view the case of Muzaffarpur was taken up first, because in North Bihar there is no town with a higher population. Of course simultaneously with Muzaffarpur, a corporation at Bhagalpur was also constituted. When law for constitution of the corporation is satisfied, I think the reasons given by, the Advocate-General do deserve consideration. This is a step for satisfying the people of the different parts of the State. This objection also therefore is to he ruled out. If the Corporation Act is constitutional and if the notification (Annexure 1) has been issued in conformity with the provision of the Act (as discussed above), the notification cannot be said to be arbitrary. 27. It is thus clear that the Corporation Act is quite constitutional, it does not violate Articles 14 and 21 of the Constitution and the impugned notification (Annexure 1) is not arbitrary and is not hit by Articles 14 and 21 of the Constitution. Both the points are accordingly answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Sadanand it has been held that where allegations are specifically made against an authority then if the denial is by anybody else the conclusion should be of mala fide. In the instant case the allegation of political rivalry is too vague to be called specific. In the case of Mohammad Ibrahim an Executive Engineer was reverted as an Assistant Engineer and in the writ filed against that, counter-affidavit was sworn by an Assistant Secretary disclosing some charges. Their Lordships of the Supreme Court deprecated the practice of the affidavits being sworn by the junior officers. Their Lordships hoped that the higher officers of the State Government would cease to utilise lower ones to provide an alibi for their own want of care. In that case the counter-affidavit gave out certain charges against the appellant but in this case there is only denial of the allegation made. It was argued that if the Chief Minister had sworn the counter-affidavit he could have been summoned by the court for cross-examination and the petitioners would have been able to elicit from him the truth about the allegation of mala fide. There is hardly anything which can be called a legal evidence in supp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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