Constitution of India: Art.243Q – Interpretation of – Notification dated 6.10.2008 envisaging upgradation of Gram Panchayat of Napasar Village as Nagar Palika (Municipality) – On challenge to the validity of said Notification, the State withdrew it by Notification dated 18.09.2009 – Validity of Notification dated 18.09.2009 challenged – Fresh Notification issued again for establishing a Nagarpalika for the Napasar village – Validity of, challenged – Held: Art.243Q contemplates constitution of three different categories of bodies known as Nagar Panchayat for a transitional area, Municipal Council for a smaller urban areas and Municipal Corporation for a larger urban area – It is declared under Art.243Q(2) that the expressions “a transitional area”, “a smaller urban area” and “a larger urban area” (‘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 – Art.243Q(2) further obligates the Governor to have due regard to the various factors mentioned therein before specifying the Areas i.e. 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 – It, therefore, appears from the scheme of Art.243Q(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 a transitional area or a smaller urban area or a larger urban area with due regard to these factors – Such parameters must be uniform for the entire State – It is only after the determination of the parameters, various municipal bodies contemplated under Art.243Q(1) could be constituted – In the absence of any notification which meets the requirements of Art.243Q(2), the entire exercise undertaken by the State of Rajasthan in upgrading the Napasar village Gram Panchayat to be a Nagarpalika is unconstitutional – Therefore, the initial notification dated 6.10.2008 itself is unsustainable and, thus, the legality of various actions which followed that notification and the judgments of the High Court which examined the legality of those actions, need not be examined – All such subsequent action of the State which led to litigation suffer from a fundamental constitutional flaw – The impugned judgments of the High Court rendered without examining the true scope and scheme of Part IXA of the Constitution and more particularly Art.243Q(2) are per incuriam – Rajasthan Municipalities Ordinance, 2008 – s.3(1)(A) – Municipalities.
Disposing of the appeals, the Court
HELD: 1. The establishment of municipalities and their organisations is governed by Part IX A (consisting of Articles 243P to 243ZG) of the Constitution of India inserted in the Constitution by the Constitution 74th (Amendment) Act, 1992 with effect from 1.6.1993. Article 243P(e) defines the expression “Municipality” to mean an institution of self-government constituted under Article 243Q. Article 243Q contemplates the constitution of three different categories of bodies known as (i) Nagar Panchayat for a transitional area, (ii) Municipal Council for a smaller urban areas and (iii) Municipal Corporation for a larger urban area. It is declared under Article 243Q(2) that the expressions “a transitional area”, “a smaller urban area” and “a larger urban area” (‘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 243Q(2) further obligates the Governor to have due regard to the various factors mentioned therein before specifying the Areas i.e. 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. It, therefore, appears from the scheme of Article 243Q(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 a 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 243Q(1) could be constituted. [Paras 6, 7, 8 and 9] [632-F-G; 633-E-H; 634-A-B]
2. In response to a specific query whether any notification contemplated under Article 243(Q)(2) had been issued by the State of Rajasthan, two notifications dated 4.7.1995 and 30.4.2012 were produced. A plain reading of both the notifications shows that these notifications had been issued in exercise of the statutory powers conferred on the State Government by two different enactments known as “The Rajasthan Municipality Act, 1959 (since repealed) and the Rajasthan Municipalities Act, 2009. Apart from the declaration regarding the source of power for the issuance of these notifications to be authority conferred by the various provisions of these two enactments, it appears from the tenor and scheme of the notifications that these notifications purport to classify municipalities only on the basis of population. The various other parameters to which regard is required to be had under Article 243Q(2) were not taken into consideration for the purpose of classification made under the above mentioned two notifications. Therefore, these two notifications cannot be treated as notifications contemplated under Article 243(Q)(2). In the absence of any notification which meets the requirements of Article 243Q(2), the entire exercise undertaken by the State of Rajasthan in upgrading the Napasar village Gram Panchayat to be a Nagarpalika – [that is equivalent to Nagar Panchayat as mentioned in Article 243Q(1)(a)] is unconstitutional as it is inconsistent with the requirements of the Constitution under Article 243Q of the Constitution of India. Therefore, the initial notification dated 6.10.2008 itself is unsustainable. Unfortunately, this aspect was not noticed by the High Court obviously because it was not brought to the notice of the High Court. The fact that a litigant before the court does not point out the relevant principles and provisions of law does not prevent the court from examining the issues involved in the lis, more particularly, when the process which is the subject matter of litigation before the court is inconsistent with the mandate of the Constitution. It is a settled principle of law that courts are bound to take note of the constitution and the laws. [Paras 10, 11] [634-C-G; 635-A]
3. The initial notification dated 6.10.2008 is unconstitutional. Therefore, the legality of various actions which followed that notification and the judgments of the High Court which examined the legality of those actions need not be examined. All such subsequent action of the State which led to litigation suffer from a fundamental constitutional flaw. The impugned judgments of the High Court rendered without examining the true scope and scheme of Part IXA of the Constitution and more particularly Article 243Q(2) are per incuriam. [Para 12] [636-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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