THE HONBLE Sr.JUSTICE RAMESH RANGANATHAN WRIT PETITION NO.9784 OF201309-09-2014 Venkatrayapuram Industrial Area Township rep., by its Member and Temporary Chairman Sr.K.
Rama Seshayya and others .
Petitioners Government of A.P.rep., by its Principal Secretary, Panchayat Raj and Rural Development Department and otheRs.Respondents Counsel for the petitioneRs.Sr.C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of Sr.M.R.K.Chakravarthy, Learned Counsel Counsel for respondents: Learned Special Government Pleader for Learned Advocate General; Sr.B.D.Maheswara Reddy; Sr.K.
Chidambaram and Sr.Dasari SVversus Prasad.
HEAD NOTE: ?.Citations: 1) (2001) 2 SCC1602) (1981) 1 SCC5683) AIR1962SC10444) (2003) 6 SCC2305) (2005) 10 SCC4956) AIR1997SC1125= (1997) 3 SCC2617) AIR1999SC17238) 1995 Suppl (3) SCC6439) (1999) 6 SCC46410) (1999) 6 SCC66711) (1982) 3 SCC235 1982 SCC (L&S) 275 12) 2005(4) Laws (APHC) 106 13) (2002) 1 SCC3314) (1992) 4 SCC30515) (1988) 4 SCC22616) (2000) 7 SCC55217) AIR1976SC253818) (2011) Vol.
52 APSTJ85(DB) 19) 2004 (1) ALT65920) 2003 (4) KLJ453 (Karnataka High Court FB) 21) AIR1974SC122) (2008) 5 SCC3323) 2008 28 JT63924) AIR1997SC128= (1997) 9 SCC49525) AIR1964SC96226) AIR1974SC55527) (1980) 2 SCC471= AIR1980SC31928) 2000(3) ALD120(DB) 29) 2005(6) ALD81330) AIR1978SC59731) AIR1969SC1981969).SCR31532) (1971) 3 SCC864= AIR1973SC20533) AIR1984S.C.1030 34) (1985) 3 SCC39835) (2006) 3 SCC27636) (1970) 2 SCC45837) (1981) 1 SCC66438) (1993) 1 SCC30239) 1959 SCR1191: AIR1958SC101840) 2005(4) ALD687(DB) 41) 2011(1) ALT315(DB) 42) (1999) 2 SCC36643) (1974) 2 SCC63044) AIR1988SC173745) (1945) 47 BOMLR52546) (1990) 3 SCC22347) (2009) 13 SCC148) AIR1965SC197749) (1977) 4 SCC47150) AIR1968SC37751) AIR2006JHARKAND13552) AIR1963SC101953) (1986) 4 SCC44754) (1964) 4 SCR28055) AIR1959SC60956) AIR1975SC62357) (1991) 4 SCC5458) (1875) Ch.D.426) 59) AIR1964SC3560) (2001) 4 SCC961) (2007) 2 SCC58862) AIR1969SC634THE HON'BLE Sr.JUSTICE RAMESH RANGANATHAN WRIT PETITION No.9784 OF2013
ORDER: W.P.No.9784 of 2013 is filed to declare G.O.Ms.No.101, Panchayat Raj and Rural Development dated 18.03.2013, G.O.Ms.No.194, Panchayat Raj and Rural Development dated 26.03.2013, G.O.Ms.No.123, Municipal Administration and Urban Development Department dated 26.03.2013 and all subsequent proceedings of the respondents, cancelling the Venkatrayapuram Industrial Area Township and merging it with Tanuku Municipality including resolution No.96 dated 23.03.2013, as illegal, malafide, contrary to law, without jurisdiction, and in violation of Article 14 of the Constitution of India.
Facts, in brief, are that Andhra Sugars Limited established a Sugar Factory in Mandapaka village in the year 1947.
Several other industries were, thereafter, established in the said village either by it or by its group companies.
A vast extent of 400 acres became an industrial area with employees colonies.
On demand for the constitution of an industrial township, in terms of Section 5 of the A.P.Gram Panchayat Act, (hereinafter called the 1994 Act).the District Collector issued a show cause notice to the Mandapaka Gram Panchayat.
This Court, by order in W.P.No.5888 of 1988 dated 26.03.1992, directed that elections to Mandapaka Gram Panchayat be held after deletion of the said industrial area.
After consultation with the State Election Commission, the State Government issued G.O.Ms.No.712 Panchayat Raj and Rural Development Department dated 13.11.1995 deleting an extent of Ac.395.79 cts from Mandapaka Gram Panchayat, for constitution of the Venkatrayapuram Industrial Area Township (hereinafter called the township).Thereafter the township was declared and constituted, under Section 5 of the 1994 Act, vide G.O.Ms.No.159, PR & RD dated 02.04.1998 which was published in the A.P.Gazette dated 06.04.1998.
The said G.O.records that the township was being separated from Mandapaka Gram Panchayat, (then in Tanuku Mandal of West Godavari District).for better administration and development of the industrial area consisting of Andhra Sugars Limited and other associated industrial concerns.
G.O.Ms.No.195 dated 12.06.2001 was issued enhancing the area of the township to Ac.401.59 cts.
In compliance with Section 5(3) of the 1994 Act the Government, vide G.O.Ms.No.300, Panchayat Raj & Rural Development dated 10.07.1998 (published in the A.P.Gazette on 17.07.1998).constituted the township committee which, thereafter, continued to function as a local authority under the 1994 Act.
The Tanuku Municipal Council passed a resolution dated 15.09.2009 for merger of the township with Tanuku Municipality.
The township committee held a Gram Sabha on 02.10.2009 wherein a unanimous resolution was passed opposing the merger.
The township committee also passed a resolution on 05.10.2009 opposing the merger.
Both these resolutions were sent to the competent authority.
G.O.Ms.No.119, Panchayat Raj and Rural Development dated 27.03.2010 was issued by the State Government reconstituting the Township committee.
On its validity being challenged, by petitioners 2 to 4 herein, the said G.O.was suspended by the order of this Court in W.P.M.P.No.9848 of 2010 in W.P.No.7674 of 2010 dated 08.04.2010.
On the death of their nominees, in the township committee, some of the industrial undertakings sent the names of their new nominees.
As no orders were passed thereon, W.P.No.31464 of 2011 was filed by the industrial undertakings which was disposed of by order dated 23.01.2012.
The 3rd respondent issued proceedings dated 04.08.2012 appointing Sr.B.S.S.Krishnamohan as the Secretary of the Industrial Area Township under the supervision of the 5th respondent.
The said appointment was subjected to challenge before this Court, and an interim order was passed in W.P.No.33612 of 2012 dated 28.08.2012.
By his letter dated 25.08.2012, the 5th respondent requested the 3rd respondent to de- notify the township under Section 5(2) of the 1994 Act.
The 3rd respondent, by memo dated 25.09.2012, sought a detailed report which was sent by the 5th respondent on 25.02.2013 stating that there was no proposal for de-notification of the area.
The 3rd respondent, in the exercise of the powers conferred under Section 5(2) read with Section 3(2) of the 1994 Act, issued proceedings dated 02.03.2013 excluding the area covered by the township from Mandapaka Gram Panchayat.
The 7th respondent, vide letter dated 11.03.2013, requested the 13th respondent to send copies of the resolution of the township committee.
The 3rd respondent furnished the information by his letter dated 15.03.2013, along with its annexures, to the 7th respondent.
The 1st petitioner, by their letter dated 15.03.2013, forwarded copies of all the resolutions of the Gramsabha and the Township Committee to the 3rd respondent, marking copies thereof to respondents 2 and 4.
The State Government issued G.O.Ms.No.101 dated 18.03.2013 reconstituting Tanuku Mandal Praja Parishad with 19 Mandal Parishads Territorial Constituencies.
The territorial constituency of Venkatrayapuram Industrial Area Township was deleted from Tanuku Mandal Praja Parishad.
The 5th respondent, by his letter dated 23.03.2013, requested the Mandal Parishad Development Officer, Tanuku to conduct a meeting of the township committee for an urgent resolution to be passed for merger of the 1st petitioner with the 7th respondent-Municipality.
Respondent No.13 issued a notice calling for an emergency meeting of the township committee on 24.03.2013 (Sunday) in order to pass such a resolution.
Petitioners 2 and 3 claim to have informed respondent No.13, by their letter dated 24.03.2013, of their inability to attend the urgent meeting, and to have sought an adjournment.
Respondents 8 to 13 came to the office of the 1st petitioner at 3.00 PM on 24.03.2013 and conducted a meeting.
The petitioners claim that the meeting was held despite the objections of the 4th petitioner that convening the meeting on a Sunday was in violation of the proviso to Rule 5 and the meeting was convened without the permission of the Chairperson as required under Rule 6(2) of the Rules.
The petitioners allege that, at the dictates of respondent Nos.8 to 12, respondent No.13 prepared proceedings necessitating the 4th petitioner conveying his objections thereto.
G.O.Ms.No.194 dated 26.03.2013 was issued, under Section 3(2)(f) of the A.P.Panchayat Raj Act read with Rule 12(1)(i) of the A.P.Gram Panchayats (Declaration of Villages) Rules, 2007 issued in G.O.Ms.No.542 Panchayat Raj Department dated 03.12.2007, cancelling the notification declaring Venkatrayapuram Industrial Area Township and other two villages as Gram Panchayats and certain areas in another village in West Godavari District, so as to include the said areas into Tanuku Municipality.
G.O.Ms.No.123 MA & UD Department dated 26.3.2013 was issued by the Government including the areas, which were deleted vide G.O.Ms.No.194 dated 26.03.2013 i.e., Venkatrayapuram Industrial Area Township and other two villages i.e., Paidiparru and Veerabadhrapuram and certain areas in the 3rd village i.e Revenue Survey Nos.150 to 153 of Palangi Village, into the limits of Tanuku Municipality.
It is the petitioners case that the very purpose of constituting a separate township for an industrial area is to enable industrial undertakings to provide sufficient civic amenities for their employees, and to preserve the industrial culture away from local politics, in accordance with the guidelines framed in memo dated 14.06.1965; the township was constituted by G.O.Ms.No.203 dated 22.04.1982, after following the procedure laid down under the A.P.Gram Panchayat Act, 1964; W.P.No.3459 of 1982 & batch, wherein the constitution of the township committee was under challenge, was dismissed; however, in view of the pending litigation, constitution and functioning of the township and its committee was delayed by more than fifteen yeaRs.civic amenities in the township are being provided, and hospitals in the township area are being run, by the township committee with funds contributed by industrial undertakings; Andhra Sugars Limited, as a founder shareholder in Vijjeswaram Gas Power Corporation, is able to provide electricity not only to its industrial establishments and its subsidiaries, but also to residential houses, schools, hospital and other public utilities in the township; un-interrupted power supply is being provided in the township; the other public utility services in the township are far superior, both in terms of quality and price, to similar services provided by Tanuku Municipality; the township has established two elementary schools and one High school, and is running them on par with corporate schools; the quality of education in these schools is far superior to those provided by Tanuku Municipality and other local bodies; roads in the township are far wider than in other areas; the township committee spent Rs.3.95 crores for laying black top roads, RCC drains, and water supply lines with a protected water supply system; the roads, maintained by the other local bodies in the District including Tanuku Municipality, fade in comparison to the roads laid and maintained in the township, either in terms of their width, quality or its regular maintenance; except for Rastrapathi road, which was part of the National High way before a by-pass road was laid, none of the other roads in Tanuku Municipality are more than 20 feet in width; even the roads in new colonies in Tanuku area are not more than 40 feet in width; all buildings in the township were constructed after obtaining permission from the local body; none of these buildings were constructed contrary to the Rules; on the other hand, more than 90% of the buildings in Tanuku Municipal area were constructed without permission; the Tanuku Municipal area has open drains which suffer from lack of maintenance; pigs and other animals are allowed to stray in these drains, despite threat of Swine Flu and other contagious diseases; all the drains in the township are underground, and are being regularly maintained without complaint from any corner; the township received the Nirmal Grama Purskar Award from the President of India, and a cash award of Rs.2,00,000/- from the Government, in the year 2008 in recognition of the good sanitary conditions and drain maintenance; it also won the Subratha Award, along with a cash award of Rs.30,000/-, from the Government in the year 2008; the Commissioner, Panchayat Raj, after inspecting the township on 07.07.2000, recorded his appreciation in his letter dated 15.07.2000; Mullapudi Venkataramanamma Memorial Hospital is being maintained with donations from industrial undertakings in the township, and its trust membeRs.the hospital provides excellent medical and surgical treatment in cardiology, ophthalmology, gynaecology, orthopaedics, diabetics, paediatrics etc.the hospital extends treatment to patients not only from Tanuku, but also from West Godavari and neighbouring districts; a protective water scheme has been provided exclusively for the township with 24 hours water supply, which no other local body including Tanuku Municipality is able to provide; every single rupee is spent only for the development, provision of civic amenities, and the welfare of its residents; unlike other local bodies, there is no wastage or leakage of funds; the accounts of the township are regularly audited by government departments and, so far, no irregularity has been pointed out; the committee has created a sinking fund, and has sufficient bank deposits, for the future requirements of the township; the committee has also prepared a master plan for the future development of the township; and respondents 8 and 9 have been continuously making efforts to somehow gain control over the funds and infrastructure of the township.
In the counter-affidavit, filed by the fiRs.respondent, it is stated that, in the exercise of the powers conferred under Section 5(1) of the 1994 Act and in terms of the Rules notified in G.O.Ms.No.20 dated 09.01.1998, the township was constituted vide G.O.Ms.No.159 dated 02.04.1998; the Collector, West Godavari District, issued Notification Roc.No.3931/1988-A1(Pts) dated 07.08.1998 which was published in the District Gazette dated 11.05.1998; an errata was issued, thereafter, vide G.O.Ms.No.159 dated 02.04.1998 and G.O.Ms.No.195 dated 12.06.2001; the township is notified under Section 5(3) of the Act, and its business is governed by the Rules notified in G.O.Ms.No.20 dated 09.01.1998; the income derived by the township from industries is Rs.5,49,453/- (other industries).along with Rs.25,904/- from Andhra SugaRs.i.e., a total of Rs.5,76,357/-; the income derived from houses of the general public is Rs.6,53,774/-; Andhra Sugars and other industries are paying meagre taxes, and are opposing merger of the township, with either the gram panchayat or the municipality, only to avoid payment of taxes to the government; their request to continue the status of a township is only to exercise control thereupon, and to avoid interference from the government; as it is against democracy to continue a person for a long time, the Government had reconstituted the township committee vide G.O.Ms.No.119 dated 27.03.2010; the said G.O.was suspended by this Court in W.P.No.7674 of 2010; the main intention of the petitioners is to help industries avoid payment of taxes to the Government; the township Committee was constituted earlier on the reputation of Dr.
Mullapudi Harischandra Prasad who continued as its Chairman from 1998 till he passed away; the 4th petitioner intends to continue, as the temporary Chairman of the township, with ulterior motives; the policy of the government is to constitute or merge gram panchayats with adjacent municipalities to develop them rapidly, and to provide more facilities to the public; not only the subject township, but adjacent villages viz., Pydiparru and Veerabhadrapuram were also included in Tanuku Municipality vide G.O.Ms.No.194 dated 26.03.2013; other gram panchayats were also included in adjacent municipalities in the State; the malafide intention of the petitioners is to oppose the Acts and orders of the Government, though they were issued within the framework of the Rules; though an executive officer i.e., the Panchayat Secretary was appointed, in accordance with law, the township had opposed his posting; no elections were held to the office of ward membeRs.and there is no MPTC member in the township area since 1995, on the ground that once any area of the gram panchayat is notified as a township, it would continue as such till it is denotified; the 3rd respondent issued notification dated 02.03.2013 denotifying the area of the township, as the Government had earlier declared the area as a township under Section 5(1) of the Act; a meeting was held for this purpose on 24.03.2013 and five, out of the six members present, agreed to merge the township with Tanuku Municipality; the required quorum for the meeting, as per Rule 11 of G.O.Ms.No.20 dated 09.01.1998, is one-third of the total strength; the requirement, as per Rule 10, for passing any resolution is only a majority of the members present; in the instant case, the resolution was passed by a majority of 5:1, and has become final; as the assembly session was in progress, the meeting was held on a Sunday to facilitate the 8th respondent to attend the meeting; no objection was raised thereto by the 4th petitioner whose contention, that he gave a letter to the 12th respondent stating that his signature was obtained without allowing him to write a dissenting note, is merely an after thought made only for the purposes of this writ petition; G.O.Ms.No.123 dated 26.03.2013 was issued based on G.O.Ms.No.194 dated 26.03.2013; the State government is competent to issue proceedings in the interests of administration; under Section 268(1) of the Act, the Government has the power to make Rules generally to carry out all or any of the purposes of the Act; after the demise of Dr.
Mullapudi Harischandra Prasad, the Government felt it necessary to discontinue the township, to avoid monopoly on certain areas by private individuals, and to provide better amenities to the public; the State Government has jurisdiction over rural areas, urban areas, SEZs and townships; the petitioners cannot question the action of the Government in denotifying the township, as creation of a township is not absolute; the petitioners were given the opportunity to put forth their views in the meeting held on 24.03.2013, but they intentionally absconded from the said meeting; no orders have been violated by the respondents; all issues were considered, and a decision was taken on the basis of the majority opinion of the township committee; and the impugned G.Os.
were issued after taking into consideration all relevant aspects for merger of the township area with Tanuku Municipality.
In the counter-affidavit, filed on behalf of the 2nd respondent, it is stated that the Commissioner and Director of Municipal Administration, in his letters dated 23.03.2013 and 25.03.2013, had informed that the Collector, West Godavari District had, by his letter dated 19.03.2013, stated that, after due consideration of the representation received from public representatives and otheRs.the Municipal Council had considered inclusion of Venkatrayapuram Industrial Area Township, Paidiparru and Veerabhadrapuram Gram panchayats, and Revenue Survey Nos.150 to 153 of Palangi village, into the limits of Tanuku Municipality; the District Collector had informed that the areas proposed for inclusion had economic potential as there were a large number of industries like Andhra Sugars Ltd., Jayalakshmi FertilizeRs.Akkamamba Textiles, Aspirant Plant and Entertainment etc.by its resolution dated 16.03.2013, the Municipal Council had resolved to include Venkatrayapuram Industrial Area Township, the Gram Panchayats of Pydiparri and Veerabhadrapuram, and Revenue Survey Nos.150 to 153 of Palangi Gram Panchayat, into the limits of Tanuku Municipality; the Paidiparru Gram Panchayat vide resolution dated 14.03.2013, and Veerabhadrapuram vide resolution of the same date, favoured the inclusion; the District Collector had enclosed the report of Tanuku Municipality, together with resolutions of the gram panchayats and the municipal council, and maps; the Commissioner, Tanuku Municipality, vide letter dated 24.03.2013, had informed that Palangi Gram Panchayat had agreed to the inclusion of Revenue Survey Nos.150 to 153 of Palangi village with the Municipality; Venkatrayapuram Industrial Area Township had also agreed to be included into the limits of Tanuku Municipality; the Municipal Commissioner had forwarded these resolutions to the Commissioner and Director of Municipal Administration who, in turn, forwarded them to the Government; in his letter dated 25.03.2013, the Commissioner and Director of Municipal Administration had stated that, as the proposal was in accordance with the rules notified in G.O.Ms.No.63 dated 18.02.2006, it could be considered; on examination of the said proposal, the Government had decided to include Venkatrayapuram Industrial Area Township, Pydiparri and Veerabhadrapuram gram panchayats, and Revenue Survey Nos.150 to 153 of Palangi Gram Panchayat into the limits of Tanuku Municipality; the Panchayat Raj and Rural Development Department had issued G.O.Ms.No.194 dated 26.03.2013 denotifying Venkatrayapuram Industrial Area Township, Pydiparri and Veerabhadrapuram gram panchayats, and Revenue Survey Nos.150 to 153 of Palangi Gram Panchayat, so as to include them into the limits of Tanuku Municipality; consequent thereto, the 2nd respondent had issued G.O.Ms.No.123 dated 26.03.2013 notifying inclusion of the areas, covered under Venkatrayapuram Industrial Area Township, Pydiparri and Veerabhadrapuram gram panchayats, and Revenue Survey Nos.150 to 153 of Palangi Gram Panchayat, into the limits of Tanuku Municipality; and the aforesaid areas were included in the Tanuku Municipality following the due procedure.
In the counter-affidavit filed by the 7th respondent, it is stated that Tanuku Municipality is maintaining its services, including roads, sanitation and town planning etc.under strict supervision of higher authorities; the Tanuku Municipality received the Green Leaf award in the year 2010 for all-round best performance in all aspects including sanitation and other works; the petitioners contention that Venkatrayapuram Industrial Area Township alone is providing protected water supply in the entire district is false; Gostani Canal flows in the midst of Tanuku Town; as the water is not fit for human consumption, Tanuku Municipality is drawing water from Narsapur Canal after installing a pipeline for a length of 7 KMs.the water is purified in a plant with a capacity of 9 million litres per day; the purified water is pumped into three over head tanks, situated in different areas, through fibre pipe lines; the purified protected water is supplied to the nook and corner of the Municipality twice a day, to the appreciation of one and all; the 7th respondent addressed letter dated 11.03.2013 to the 13th respondent to pass a resolution for merger, as per the orders of the 4th respondent; the 13th respondent informed, vide letter dated 15.03.2013, that the meeting could not conducted to pass a resolution as non-official members were engaged in both Parliament and Assembly elections; the Special Officer had passed resolution dated 16.03.2013 for inclusion of Venkatrayapuram Industrial Area Township, Paidiparru and Veerabhadrapuram villages and Revenue Survey Nos.150 to 153 of Palangi village into the limits of Tanuku Municipality; the said resolution was sent to the Government, vide letter dated 18.03.2013, through the Commissioner and Director of Municipal Administration who, by letter dated 19.03.2013, submitted proposals to the Government; subsequently, the 13th respondent forwarded the consent resolution dated 24.03.2013, after a committee meeting was conducted on 24.03.2013; the Government issued G.O.Ms.No.123 dated 26.03.2013 to include these villages into Tanuku Municipality; thereafter, the records of the Venkatrayapuram Industrial Area Township were taken over from the Panchayat Secretary; the Government has the power, under Section 3 of the 1994 Act, to denotify the township and merge it with Tanuku Municipality; the action of the Government is in accordance with the Rules; the contention that the impugned notification was passed on political considerations is baseless; and there is no illegality or arbitrariness in issuing the impugned proceedings.
A reply affidavit is filed by the petitioners stating that the 4th petitioner is a member of the township committee which was constituted under G.O.Ms.No.300 dated 10.07.1998; the 5th respondent had, by his letter dated 20.09.2011, authorised the 4th petitioner, along with the Secretary, to deposit, withdraw and operate the funds of the township; in accordance with Rule 8, of the Rules notified in G.O.Ms.No.20 dated 09.11.1998, the 4th petitioner was chosen as the Chairman to preside over the meetings; he had, similarly, presided over the meeting held on 24.03.2013; the 4th petitioner is entitled to file this Writ Petition on behalf of the 1st petitioner township; he had also played a crucial role in working for the welfare of the employees of industrial concerns, and was instrumental in bringing Group Insurance from LIC, Accident Insurance, providing individual housing, supplying provisions through Coop.
Stores, Health Insurance etc.to the said workeRs.the respondents have failed to discharge their statutory duties under Section 5 of the Act; more than 90% of the residents of the township are employees of the industrial concerns of the township; the legislative intent is to preserve the township as an independent entity, without merging it with any Gram Panchayat, Municipality or other Local Body; the township is a unique local body, and cannot be treated on par with other local bodies; the allegation that opposition to the merger is because of meagre taxes, and to avoid payment of taxes, is false; all the industrial concerns of the 1st petitioner township put together are paying statutory taxes of more than Rs.180 Crores per annum to the Central and State Governments; the taxes payable under the Act were imposed as per the directions of the Revision Officer, and as per the revision conducted in the year 1998-99; the industrial concerns are paying taxes regularly, without any default, and with 5% enhancement every year as stipulated in the Rules; on a couple of occasions, M/S.Andhra Sugars Limited had received the highest tax payer award from the Government of India; Andhra Sugars Limited is paying Rs.3,12,899/- as tax to the 1st petitioner township and the other industrial concerns, including SMVRM Hospital, put together are paying Rs.2,90,000/-; the 8th respondent has political interests over the township, and that is the only motive for issuing the impugned G.Os; the impugned G.Os.
were issued at the instance of respondents 8 and 9 to achieve their political ends; Section 268 of the Act does not empower the Government to cancel the township; from out of the five membeRs.who had allegedly supported the resolution dated 24.03.2013, four of them viz., respondents 10 to 12 never attended any of the earlier meetings of the township at any point of time; they attended the meeting on 24.03.2013 only at the behest of respondents 8 and 9, and in order to ensure that the resolution was passed with a majority of more than one third; having remained absent, from the meetings of the 1st petitioner township, all through, respondents 9 to 12 are not entitled to espouse the cause of the township; it is evident that the impugned proceedings were issued at the behest of respondents 8 and 9 to achieve their political ends to exercise superintendence over the township; the records were surreptitiously handed over at 8.30 P.M.in the night of 28.03.2013; no gram sabha was conducted at any point of time in the villages which were merged with Tanuku Municipality; these villages have no elected representatives, as no elections were held though they are due since 2011; ever since the merger, the daily activities viz.
maintenance of roads, drainages, lifting of garbage, maintenance of parks etc., in the township, have come to a grinding halt; the Tanuku Municipality has abandoned maintenance of the township completely; the residents of the township are facing probleMs.with regards maintenance of roads, sewerage lines etc., including development of the green belt; and the Tanuku Municipality, which is unable even to maintain Tanuku Town, cannot be expected to maintain the township also.
Elaborate submissions were made by Sr.C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of the petitioneRs.Learned Special Government Pleader, appearing on behalf of the Learned Advocate General, for the respondents, and Sr.K.
Chidambaram, Learned Counsel appearing on behalf of respondent No.14.
Written arguments have also been filed by Sr.M.R.K.Chakravarthy, Learned Counsel for the petitioneRs.and the Learned Special Government Pleader appearing on behalf of the respondents.
It is convenient to deal with the contentions, urged by Learned Counsel on either side, under different heads.I.IN THE ABSENCE OF VIOLATION OF THEIR FUNDAMENTAL RIGHTS ARE THE PETITIONERS NOT ENTITLED TO INVOKE THE JURISDICTION OF THIS COURT UNDER ARTICLE226OF THE CONSTITUTION OF INDIA?.
Learned Special Government Pleader would submit that the State Government had issued the impugned orders only after considering all material relevant for the purpose of merger of the township area into the municipality; there is no illegality or irregularity in passing the impugned ordeRs.they were passed in accordance with the Act and the Rules made thereunder; the State Government has ample power to pass the impugned order and, therefore, exercise of such power cannot be questioned before this Court; and the fundamental rights of the petitioners have not been violated enabling them to invoke the jurisdiction of this Court, for issuance of a Writ, under Article 226 of the Constitution of India.
Article 226 of the Constitution confers extraordinary jurisdiction on the High Court to issue high prerogative writs for enforcement of the fundamental rights or for any other purpose.
It is wide and expansive.
The Constitution does not place any fetter on the exercise of the extraordinary jurisdiction.
It is left to the discretion of the High Court.
(LIC of India v.
Asha Goel ).While the right guaranteed by Article 32 can be exercised only for the enforcement of fundamental rights, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights but for any other purpose.
(Fertilizer Corpn.
Kamgar Union v.
Union of India ).Persons, other than those claiming a fundamental right, can also approach the court seeking relief thereunder.
(Calcutta Gas Company (Prop.) Ltd.v.State of West Bengal ).A writ petition under Article 226 is a public law remedy which can be invoked for resolution of a a dispute involving public law character.
(Dwarka Prasad Agarwal v.
B.D.Agarwal ).The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature, and is not limited by any other provisions of the Constitution.
(ABL International Ltd v.
Export Credit Guarantee Corporation of India Ltd ).The power of judicial review, vested in the High Courts under Article 226, is an integral and essential feature of the Constitution constituting a part of its basic structure.
(L.
Chandra Kumar v.
Union of India ).Article 226 of the Constitution is couched in the widest possible terMs.The power of the High Court thereunder can be exercised when any action is against any provision of law.
(K.
Venkatachalam v.A.Swamickan ).There are no unreviewable discretions under the constitutional dispensation.
The overall constitutional function, to ensure that constitutional/statutory authorities function within the sphere of their respective constitutional/statutory authority, is that of the Courts, including the High Court.
(Election Commission of India v.
Union of India ).Judicial review is permissible if the impugned action is against the law or in violation of the prescribed procedure or is unreasonable, irrational or malafide.
(M.I.Builders (P) Ltd.v.Radhey Shyam Sahu ).Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of the fundamental rights guaranteed by the Constitution.
With the expanding horizon of Article 14 read with other articles dealing with fundamental rights, every executive action of the Government, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of the High Courts under Article 226 and can be validly scrutinised on the touchstone of Constitutional mandates.
(Common Cause v.
Union of India ).The traditional rule of standing, which confines access to the judicial process only to those to whom legal injury is caused or a legal wrong is done, has now been jettisoned by Courts and the narrow confines within which the rule of standing was imprisoned for long, as a result of the inheritance of the Anglo-Saxon system of jurisprudence, has been broken and a new dimension has been given to the doctrine of locus standi.
(Peoples Union for Democratic Rights v.
Union of India ; Andhra Pradesh Wine Dealers Association v.
Deputy Director of Income Tax (Investigation) ).Constitutional Courts have, of late, been adopting a liberal approach in dealing with cases, or in dislodging the claim of a litigant, merely on hypertechnical grounds.
If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to have source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his not having the locus standi.
In other words, if the person is found to be not merely a stranger having no right whatsoever, he cannot be non-suited on the ground of his not having the locus standi.
(Ghulam Qadir v.
Special Tribunal ).The strict rule of locus standi applicable to private litigation has been relaxed, and a broad rule has been evolved which gives the right of locus standi to any member of the pubic acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury, but who is not a mere busy body or a meddlesome interloper.
(Janata Dal v.
H.S.Chowdhary ; Andhra Pradesh Wine Dealers Association12).A member of the public, having no personal gain or oblique motive, is entitled to approach the Court for enforcement of his Constitutional or Legal rights.
(Sheela BaRs.v.
Union of India ; Andhra Pradesh Wine Dealers Association12).In M.S.Jayaraj v.
Commissioner of Excise , the Supreme Court observed: .In this context we noticed that this Court has changed from the earlier strict interpretation regarding locus standi as adopted in Nagar Rice and Flour Mills v.N.Teekappa Gowda and Bros., (1970) 1 SCC575: (AIR1971SC246 and Jasbhai Motibhai Desai v.
Roshan Kumar Haji Bashir Ahmed, (1976) 1 SCC671: (AIR1976SC578 and a much wider canvass has been adopted in later years regarding a person's entitlement to move the High Court involving writ jurisdiction.
A four Judge Bench in Jasbhai Motibhai Desai (AIR1976SC578 (supra) pointed out three categories of persons vis-a-vis the locus standi : (1) a person aggrieved; (2) a stranger; (3) a busybody or a meddlesome interloper.
Learned Judges in that decision pointed out that any one belonging to the third category is easily distinguishable and such person interferes in things which do not concern him as he masquerades to be a crusader of justice.
The Judgment has cautioned that the High Court should do well to reject the petitions of such busybody at the threshold itself.
Then their Lordships observed the following (para 37 of AIR) : ".The distinction between the fiRs.and second categories of applicants, though real, is not always well demarcated.
The fiRs.category has as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty.
Applicants falling within the central zone are those whose legal rights have been infringed.
Such applicants undoubtedly stand in the category of 'persons aggrieved'.
In the grey outer circle the bounds which separate the fiRs.category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction.
All persons in this outer zone may not be persons aggrieved.".
A recent decision delivered by a two Judge Bench of this Court (of which one of us is a party - Sethi, J.) in Chairman, Railway Board v.
Chandrima Das, (2000) 2 SCC465: (2000 AIR SCW649: AIR2000SC988: 2000 Cri LJ1473 after making a survey of the later decisions held thus (para 17 of AIR, Cri LJ.: ".In the context of public interest litigation, however, the Court in its various judgments has given the widest amplitude and meaning to the concept of locus standi.
In People's Union for Democratic Rights v.
Union of India (1982) 3 SCC235: (AIR1982SC1473: 1982 Lab IC1646 it was laid down that public interest litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to Court.
On the right to approach the Court in the realm of public interest litigation.
In Bangalore Medical Trust v.B.S.
Muddappa (1991) 4 SCC54: (1991 AIR SCW2082: AIR1991SC1902 the Court held that the restricted meaning of aggrieved person and the narrow outlook of a specific injury has yielded in favour of a broad and wide construction in the wake of public interest litigation.
The Court further observed that public spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of publc nature.
They cannot be ignored or overlooked on a technical or conservative yardstick of the rule of locus standi of the absence of personal loss or injury.
There has, thus, been a spectacular expansion of the concept of locus standi.
The concept is much wider and it takes in its stride anyone who is not a mere busybody..".
(emphasis supplied) The fiRs.petitioner is the township committee of the township, and petitioners 2 to 4 are the members of the township committee.
They have an abiding interest in ensuring the continued existence of the township.
They also have sufficient interest in instituting action for redressal of what they claim to be a public wrong as, according to them, the impugned notifications, dissolving the township and merging it with Tanuku Municipality, are ultravires the proviso to Article 243-Q(1) of the Constitution of India and the statutory rules notified in G.O.Ms.No.20 dated 09.11.1998.
In view of the expanded rule of locus standi, and as the petitioners are neither busy bodies or meddlesome interlopeRs.we see no reason to non-suit them on the specious plea that they lack locus- standi to invoke the jurisdiction of this Court under Article 226 of the Constitution of India.
II.
IS SECTION5OF THE A.P.PANCHAYAT RAJ ACT ULTRA VIRES THE PROVISO TO ARTICLE243 (1) OF THE CONSTITUTION OF INDIA?.
Learned Special Government Pleader would submit that, in view of the proviso to the Article 243Q(1).all urban areas need not be constituted as municipalities; an industrial township can be constituted, in accordance with the proviso to Article 243Q(1).making provision under the A.P.Municipalities Act, and not under the A.P.Panchayat Raj Act; Section 5 of the 1994 Act, dealing with townships, is ultra-vires the Constitution of India; consequently the very constitution of the township, invoking Section 5 of the 1994 Act, is nonest in law; it should, therefore, be treated only as a panchayat for all practical and legal purposes; and, hence, merger of the township with Tanuku Municipality, invoking the provisions of the 1994 Act, is valid.
Part-IX of the Constitution of India, from Articles 243 to 243- O, relate to the Panchayats.
This Part was inserted by the Constitution (73rd Amendment) Act, 1992 which came into force on 24.04.1993.
The provisions of Part-IX confer constitutional status on local self-government bodies in rural areas i.e., the village panchayats, the Taluq panchayats and the District panchayats.
Part-IX-A of the Constitution of India, from Articles 243-P to 243- ZG, relate to Municipalities.
Part-IX-A, inserted by the Constitution (74th Amendment) Act, 1992 which came into force on 01.06.1993, relates to urban local bodies i.e., Nagar Panchayats (transitional areas from rural areas to urban areas).municipal councils for smaller urban areas, and municipal corporations for larger urban areas.
Article 243Q(1) defines a transitional area, a smaller urban area or a larger urban area, to mean such areas 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 Part-IX-A.
The fiRs.proviso to Article 243-Q(1) enables a municipality, under this clause, not to 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.
While Part-IX-A provides for the constitution of an industrial township, Part-IX does not.
Under Section 5(1) of the A.P.Panchayat Raj Act the Government may declare, by a notification in the Andhra Pradesh Gazette, a village or any other area to be a township if it is an industrial or institutional colony, a labour colony, a project area, a health resort or a place of religious importance.
Section 5(2) stipulates that, if the area declared as a township under sub-section (1) comprises a village or forms part of a village, the Commissioner shall, under sub-section (2) of Section 3, cancel the notification issued under Section 3(1) in respect of such village or, as the case may be, exclude such part from the village.
Section 5(3) requires the Government, by notification in the A.P.Gazette, to constitute a township committee consisting of a Chairperson to be nominated by the Government and the officials and non-official members stipulated therein.
Section 5(5) stipulates that the notification, issued by the Government under Section 5(3).may direct that any functions vested in a gram panchayat, by or under the Act, shall be transferred to and performed by the township committee.
The notification under Section 5(5) is required to provide for (i) the restrictions and conditions subject to which the township committee may perform its functions; and (ii) any other matter incidental to, or connected with, the transfer of the functions of a gram panchayat to the township committee including the apportionment of the revenues between the township committee and the concerned gram panchayat or any contributions or compensation to be paid by the township committee to the concerned gram panchayat.
Section 5(6) requires every township committee, in regard to the conduct of its business, to follow such procedure as may be prescribed.
Section 5(7) enables the Government, by notification in the A.P.Gazette, to direct that any of the provisions of the A.P.Panchayat Raj Act or of the law relating to municipalities for the time being in force or of any rules made thereunder or of any other enactment for the time being in force elsewhere in the State, but not in the village or local area or specified part thereof referred to in Section 5(1).shall apply to that village, local area or part to such extent and subject to such modifications, additions and restrictions as may be specified in the notification.
Section 2(22) of the A.P.Municipalities Act, 1965 defines municipality to mean a municipality of such grade as may be declared by the Government, from time to time, by notification in the A.P.Gazette on the basis of its income and such other criteria as may be prescribed.
Section 2 (22-a) defines a Nagar Panchayat to mean a body deemed to have been constituted under Section 2-A, for a transitional area specified by the Governor under clause (42-a).Section 2(42-a) defines a transitional area or a smaller urban area to mean 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 the A.P.Municipalities Act, 1965, subject to such rules as may be made in this behalf.
Section 2-A relates to constitution of Nagar Panchayats and, under sub-section (1) thereof, where an area is specified as a transitional area under Section 2(42-a).a Nagar Panchayat shall be deemed to have been constituted for such transitional area.
Section 2-A(2) stipulates that the A.P.Municipalities Act, 1965 shall apply to a Nagar Panchayat, deemed to have been constituted under Section 2-A, as they apply to a Municipality; and, to facilitate such application, a Nagar Panchayat shall be deemed to be a Municipality.
Section 3 of the A.P.Municipalities Act relates to constitution of Municipalities.
Under sub-section (1) thereof, where a notification is issued specifying an area as a smaller urban area under Section 2(42-A).a Municipality shall be deemed to have been constituted for such area.
Under the proviso thereto, a Municipality may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area, 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.
The proviso to Section 3(1) enables the Government not to constitute a Municipality in an urban area, or part thereof, if the factors referred to therein are attracted.
It is, indeed, startling to hear the Government Pleader, appearing on behalf of the State Government, contending that a provision in a state enactment is unconstitutional.
When an Act of Parliament or the State Legislature is challenged as ultra vires the Constitution, the Union of India/the concerned State represented by the Secretary is a necessary party.
The requirement of Section 79 and Order XXVII of the Code of Civil Procedure, 1908 (CPC) is that, even when a suit is filed in this regard, the Union of India and the State, as the case may be, should be made parties.
(State of Kerala v.
G.M., Southern Railway ).Order XXVIIA CPC requires a notice to be given to the Attorney General or the Advocate General, as the case may be, when a question, as is referred to in Article 132(1) read with Article 147 of the Constitution of India, is involved.
In every writ petition, where the validity of a statute is under challenge, notice must be given to the concerned Government Pleader, and to the authority which issued the statutory instrument.
If a State is not impleaded as a party to a writ petition challenging an Act, the writ petition is not maintainable.
(Sr.Balaji Flour Mills v.
CTO ).Can the Government Pleader, to whom notice is required to be given when the constitutional validity of a state enactment is under challenge, himself contend that a provision of a state enactment is unconstitutional, even in the absence of a challenge to its validity in the Writ Petition?.
I think not.
It is, however, unnecessary to delve further on whether or not it is permissible for him to do so, as it would be wholly inappropriate, even otherwise, for this Court to examine the constitutional validity of Section 5 of the Act in the absence of a specific challenge thereto in the Writ Petition, or, for that matter, in the absence of any such plea even in the counter-affidavit filed on behalf of the respondents.
The presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles and the burden of proving all the facts which are requisite for the constitutional invalidity, is thus upon the person who challenges the constitutionality.
(Ranga Reddy District Sarpanches Association v.
Government of A.P.; Karnataka Sugar Workers Federation, Bangalore v.
State of Karnataka ; State of Jammu and Kashmir v.
T.N.Khasa ).It is only when there is a clear violation of a constitutional provision beyond reasonable doubt, that the court should declare a statutory provision to be unconstitutional.
(Hinsa Virodhak Sangh v.
Mirzapur Moti Kuresh Jamat ; Govt.
of A.P.v.P.Laxmi Devi ).The township was constituted by the notification issued in G.O.Ms.No.159 dated 02.04.1998, and the said notification was published in the A.P.Gazette on 06.04.1998.
The petitioners seek the continued existence of the township, and not for its dissolution.
What is under challenge in this Writ Petition, among otheRs.is the validity of G.O.Ms.No.194 dated 26.03.2013 whereby the earlier notification, constituting the township, was sought to be cancelled.
Even in their counter-affidavits, the respondents do not contend that G.O.Ms.No.159 dated 06.04.1998 is unconstitutional.
In view of the presumption of constitutionality of statutes, and in the absence of a challenge thereto in the affidavits filed before this Court either by the petitioners or the respondents, we see no reason to examine whether or not Section 5(1) of the 1994 Act is unconstitutional.
We shall, therefore, proceed on the basis that Section 5(1) is constitutionally valid.
III.
IS THE DECISION OF THE GOVERNMENT TO DISSOLVE THE TOWNSHIP A POLICY DECISION NOT LIABLE TO BE INTERFERED WITH IN PROCEEDINGS UNDER ARTICLE226OF THE CONSTITUTION OF INDIA?.
Learned Special Government would submit that the policy of the Government is to constitute or merge adjacent gram panchayats into municipalities on the basis of their development; the object of such merger is to develop these areas rapidly and to provide more facilities to the public; in the exercise of its powers under Section 326(1) read with the proviso to Section 3(IA) of the A.P.Municipalities Act, 1965, the Government issued G.O.Ms.No.63 making rules for the inclusion and exclusion of areas into/ from the limits of Municipalities/Nagar Panchayats in the State; in accordance with these Rules, the Principal Secretary to the Government M.A.& U.D.Department, vide letter dated 11.5.2009, requested the District Collector, West Godavari to send proposals to the Government to include new areas into municipal limits as per G.O.Ms.No.63; and the District Collector, West Godavari, by proceedings dated 17.06.2009, requested all Municipal Commissioners in the District to send necessary proposals for inclusion of new areas into the municipalities as per the criteria stipulated in G.O.Ms.No.63.
Even if this Court were to proceed on the premise that the decision of the Government, to denotify the township and merge it with Tanuku Municipality, is pursuant to a policy decision to merge gram panchayats with adjacent urban local bodies, interference with such a policy decision would be justified if it violates constitutional provisions.
Except for the limited purpose of testing a public policy, in the context of illegality and unconstitutionality, courts should avoid embarking on uncharted ocean of public policy.
A policy decision, which is demonstrably capricious or is arbitrary and not informed by reason or which suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, can be struck down.
(Krishnan Kakkanth v.
Govt.
of Kerala ).The petitioners contend that the impugned G.Os.
are in violation of the proviso to Article 243Q (1) of the Constitution of India r/w.
Section 21 of the General Clauses Act.
If that be so, the impugned G.Os may be required to be set aside, if they fall foul of the proviso to Article 243Q(1).notwithstanding that they were issued pursuant to the policy decision of the Government.
IV.
IS EXERCISE OF POWER TO ABOLISH THE TOWNSHIP A COLOURABLE EXERCISE OF POWER AND VITIATED BY MALAFIDES?.
Sr.C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of the petitioneRs.would submit that the proceedings of Respondent Nos.3 and 5, which are contrary to the record, show legal and actual malice; in the present case the Government, its officers and the Municipality acted only on the instructions, and to cater to the personal interests, of Respondent No.8 MLA ignoring the fact that the earlier orders passed at the instance of Respondent No.8 MLA, interfering with the township and its Committee, were suspended by this Court in various Writ Petitions; the impugned orders are based entirely on the letters of Respondent No.8 MLA (who has no role in the scheme of the Act).this is sufficient to prove malice of, and colorable exercise of power by, the respondents; the power to abolish a township, assuming it exists, was exercised for a collateral purpose or for no purpose; as it was exercised only to satisfy respondent No.8 MLA, it is illegal and a colorable exercise of power; the impugned proceedings are liable to be set aside on grounds of malice and exercise of power for collateral purposes; the eighth respondent entered appearance, but did not file any counter-affidavit; inspite of service of notice, respondent No.9 did not choose to contest; respondent Nos.3 to 6 and respondent Nos.10 to 13 have also not filed any counter-affidavit; the allegations of malice, in the writ affidavit, remain unchallenged and undisputed; only respondent Nos.1, 2 and 7 have filed their counter-affidavits; the averments, regarding political pressure from respondent Nos.8 and 9, have not been controverted by respondent Nos.1, 2 and 7 in their counter-affidavits; and, in any event, their own proceedings refer to the letters of Respondent No.8 MLA and his instructions.
On the other hand the Learned Special Government Pleader, appearing on behalf of the Learned Advocate General, would submit that it is not only this township which was merged with a municipality, but there are several other instances in the State where merger of adjacent gram panchayats have taken place with municipalities; apart from the township, other gram panchayats were also merged with Tanuku Municipality by the impugned G.O.Ms.No.194 dated 26.3.2013; and there is no malafide intention, as alleged by the petitioner, in seeking to merge the township with Tanuku Municipality.
It is the petitioners case, in the affidavit filed in support of the writ petition, that the 1st respondent had yielded to the pressure of local political leadeRs.including respondents 8 and 9, in passing G.O.Ms.No.119 dated 27.03.2010 reconstituting the township committee in gross violation of Section 5 of the Act; at the instance of local politicians, including respondents 8 and 9, the 5th respondent had requested the 3rd respondent, by his letter dated 25.08.2012, to denotify the township under Section 5(2) of the Act; at the dictates of respondents 8 to 12, respondent No.13 had prepared proceedings dated 24.03.2013 showing the petitioner as a dissenting member without allowing him to write any note and obtaining his signature; respondent Nos.8 to 13 are only ex-officio members and not members of the township committee; respondents 9, 10 and 11 never attended the township committee meetings till date; respondent No.12 attended the meetings very rarely; and the impugned proceedings were passed at the instance of, and pressure from, respondent Nos.8 and 9.
Allegations of malafides, and of improper motives on the part of those in power, are frequently made.
It is the duty of the Court to scrutinise these allegations with care so as to avoid being influenced by them, in cases where they have no foundation in fact.
In this task, it would be conducive if those against whom allegations are made come forward to place before the Court either their denial, or their version of the matter, so that the court may be in a position to judge whether the onus, that lies upon those who make allegations of malafides, has been discharged.
In the absence of such affidavits, or of material placed before the Court by these authorities, the Court is left to judge the veracity of the allegations merely on the test of probability, with nothing more substantial by way of an answer.
If the facts, which serve as the foundation for the plea of malafides, are made out, the only question would be whether the inference of malafides would be a reasonable one to draw.
(C.S.Rowjee v.
State of Andhra Pradesh ).Respondents 8 and 9, who were the local M.L.A.and M.P.when the impugned G.Os were issued, have not filed any counter-affidavit though notice, of the writ petition having been filed before this Court, was served on them.
The allegations of malafides and colourable exercise of power, in the writ affidavit, stand unrebutted.
The question which necessitates examination is whether the facts, alleged in support of the plea of malafides, constitute malice.
In this context it must be borne in mind that the burden of establishing malafides is very heavy on the person who alleges it.
The allegations of malafides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility.
(E.P.Rayappa v.
State of Tamil Nadu ).Courts frequently use the words 'good faith' in their ordinary sense, implying personal honesty and good intentions.
Bad faith' or malafide are opprobrious terms more suitably restricted to the rare cases of actual dishonesty.
Bad faith or 'lack of good faith', means dishonesty: not necessarily for a financial motive, but still dishonesty.
It always involves a grave charge.
It must not be treated as a synonym for an honest, though mistaken, taking into consideration of a factor which is in law irrelevant.
(Administrative Law (10th Edition) H.W.R.WADE & C.F.FORSYTH).Legal malice or bad faith - which invalidates the exercise of power sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal.
If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal.
The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment.
When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested, the court calls it a colourable exercise and is undeceived by illusion.
Fraud on power embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign.
If the purpose is corrupt, the resultant act is bad.
If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, malafides or fraud on power vitiates the official act.
(State of Punjab v.
Gurdial Singh ).While the allegations in the writ affidavit, attributing malafides to respondents 8 and 9, have not been rebutted by way of counter- affidavits, the fact remains that these allegations, by themselves, would not justify the impugned proceedings being set aside as vitiated by malafides.
All that is stated in the writ affidavit is that the impugned G.Os.
were issued on the basis of representations submitted by respondents 8 and 9.
There is no illegality in a public representative making a request for merger of a local body with another.
It is not even the petitioners case that there exists any personal animus between the petitioners or the industrial establishments in the township on the one hand, and respondents 8 and 9 on the other.
Neither has any material been placed, nor have details been furnished in the writ affidavit, in support of the plea that the Government had catered to the personal interests of, and had yielded to the pressure put on them by, respondents 8 and 9 in passing the impugned G.Os.
While the legality or otherwise of the impugned G.Os.
shall be examined later, I see no reason to set aside the impugned G.Os.
on this ground as the petitioners have failed to discharge the burden, which lies heavily on them, to prove that the impugned G.Os.
are vitiated by malafides or that power was exercised for collateral and extraneous purposes.V.WOULD FAILURE TO CONSTITUTE THE TOWNSHIP AS A SMALLER URBAN AREA, BEFORE ITS MERGER WITH TANUKU MUNICIPALITY, VITIATE THE IMPUGNED NOTIFICATIONS: Sr.C.V.Mohan Reddy, Learned Senior Counsel, would submit that the respondents did not issue any notification under Section 2( 42(a).of the A.P.Municipalities Act declaring the township as a ".Smaller Urban Area".
which is the Sine qua non for taking further action to merge the township with Respondent No.7 Municipality; and failure, to so constitute, would vitiate the impugned notifications and render them illegal and invalid.
On the other hand Learned Special Government Pleader would submit that the contention that, instead of merging the township into the municipality, it should have been constituted as a small urban area, in accordance with Article 243(Q) of the Constitution of India, is not tenable; under the A.P.Transitional Area and Smaller Urban Areas (fixation of Urban Area) Rules 1985, an area can be notified as a transitional area i.e., a Nagar Panchayat, under 2(42-A) of the A.P.Municipalities Act, only if the criteria, fixed in the Rules in this regard, are satisfied; the specified criteria was not satisfied by the township and, therefore, the question of it being constituted as a Nagar Panachayat, or as a transitional area, does not arise; Rule 3(1) of the A.P.Municipalities (Inclusion or exclusion of areas into/from the limits of the Municipalities and Nagar Panchayats) Rules, 2006, stipulate that areas, which are within a radius of 3 KMs of the Municipality or a Nagar Panchayat, can be included into the municipality or the Nagar Panchayat as the case may be; the township and two other panchayats, and certain areas in the third panchayat, fall within a radius of 3 KM from Tanuku Municipality; they are all fast growing, and have the characteristics of an urban area; and therefore, to give more facilities to the residents therein, these areas were included in the Tanuku Municipality by the impugned G.Os.
In D.
Suryanarayana v.
Government of Andhra Pradesh a Division bench of this Court held that the ingredients of Section 2 (42-a) of the A.P.Municipalities Act are (a) the Governor must be satisfied that there are certain factors with regard to population, revenue generation, economic factors etc., warranting constitution of a 'transitional area'; and (b) the said area must be specified by public notification as a 'transitional area'; a 'transitional area' or 'a smaller urban area', as the case may be, must be specified by a public notification under Clause (42-a) of Section 2 of the Municipalities Act in order to attract Section 2-A of the said Act; specifying a 'transitional area', under Section 2(42-a).is a necessary pre-requisite for constitution of a Nagar Panchayat under Section 2-A; the State should fiRs.specify a gram panchayat as a 'transitional area', and such a 'transitional area' alone would be deemed to have been constituted as a Nagar Panchayat under Section 2-A; and constituting a Nagar Panchayat', without creating a 'transitional area' as contemplated under Clause (42-a) of Section 2, would result in bypassing the prescribed procedure of fiRs.specifying the 'transitional area' for it to be constituted as a Nagar Panchayat.
In Puttur Gram Panchayat Puttur, Chittoor District v.
Government of A.P.this Court held that Section 3 of the A.P.Municipalities Act requires issuance of a notification specifying the area as a smaller urban area under clause 42-(a) of Section 2; and, once a notification is issued, a municipality shall be deemed to have been constituted for such an area.
The rules referred to in Section 2(42-a) of the A.P.Municipalities Act, are the A.P.Transitional Area and Smaller Urban Areas (fixation of Urban Area) Rules, 1985.
The submission of the Learned Special Government Pleader, that the criteria prescribed therein, for constitution of a transitional area as a Nagar Panchayat, was not satisfied in the present case, has not been disputed by the Learned Senior Counsel appearing on behalf of the petitioneRs.As the township cannot be constituted as a Nagar Panchayat, it is wholly unnecessary for this Court to either examine whether the township should be notified as a Nagar Panchayat in the fiRs.place, and only thereafter merged with Tanuku Municipality; or whether the law declared in D.Satyanarayana28 with respect to a gram panchayat would also apply to a township.
This contention of Sr.C.V.Mohan Reddy, Learned Senior Counsel, necessitates rejection.
VI.
ARE THE IMPUGNED NOTIFICATIONS LIABLE TO BE SET ASIDE FOR VIOLATION OF PRINCIPLES OF NATURAL JUSTICE?.
Sr.C.V.Mohan Reddy, Learned Senior Counsel, would submit that, inspite of the resolution of the Gram Sabha and the township Committee opposing the merger, no notice was issued by Respondent No.1 and 2 to the Petitioners or to the general public to enable them to submit their objections to the proposal as was done prior to the establishment of the township; the impugned proceedings are in violation of principles of natural justice; respondent Nos.1 and 2 have not assigned any reasons for issuing the impugned notifications; the impugned proceedings are vitiated by procedural irregularities; and the records would disclose non- application of mind by the Government.
Rules of natural justice are not embodied rules.
What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case and the framework of the law.
Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether observance of that rule was necessary for a just decision on the facts of the case.
(Maneka Gandhi v.
Union of India ; Suresh Koshy George v.
University of Kerala ; D.F.O., South Kheri v.
Ram Sanehi Singh ).It should not proceed as if there are inflexible rules of natural justice of universal application.
Each case depends on its own circumstances.
Rules of natural justice vary with the rules prescribed by the legislature.
(M/S.Chingleput Bottlers v.
M/S.Majestic Bottling Co.).Rules of natural justice are not statutory rules.
These rules are not cast in a rigid mould nor can they be put in a legal strait- jacket.
They are not immutable but flexible.
These rules can be adapted and modified by statutes and statutory rules.
(Union of India v.
Tulsiram Patel ).Not only can the principles of natural justice be modified but, in exceptional cases, they can even be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion.
(Tulsiram Patel34; State of U.P.v.
Sheo Shanker Lal Srivastava ).If a statutory provision either specifically, or by necessary implication, excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the Legislature or the statutory authority and read, into the concerned provision, the principles of natural justice.
(Union of India v.
Col.
J.N.Sinha ; Tulsiram Patel34).The implication of natural justice being presumptive, it may be excluded by express words of the statute or by necessary intendment.
(Swadeshi Cotton Mills v.
Union of India ; Tulsiram Patel34).No statutory provision which requires the township committee to be heard, before its cessation is brought about, has been brought to the notice of this Court by Sr.C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of the petitioneRs.Neither Section 3(2)(f) of the 1994 Act nor Rule 12 of the A.P.Gram Panchayats (Declaration of Villages) Rules, 2007 (notified in G.O.Ms.No.542 dated 03.12.2007) have any application in cancelling the notification constituting a township.
The requirements of the proviso to Article 243-Q(1) r/w.
Section 21 of the General Clauses Act is for the Government to have regard to the factors referred to therein and to issue a notification in terms thereof.
Neither Article 243Q(1) nor Section 5 of the A.P.Panchayat Raj Act or, for that matter, the proviso to Section 3 of the A.P.Municipalities Act require the township to be put on notice before its existence is brought to an end.
It cannot, therefore, be held that the impugned G.Os.
were issued without complying with the principles of natural justice.
VII.
DOES THE GOVERNMENT LACK THE POWER TO DENOTIFY AN INDUSTRIAL TOWNSHIP AFTER IT IS CONSTITUTED?.
Sr.C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of the petitioneRs.would submit that Section 5 of the 1994 Act is a Code in itself; there is no provision under the 1994 Act to de-notify a township once it is established; there is no provision either under the 1994 Act or under the Municipalities Act to merge the township with a Municipality; the township is an entity distinct from a Village which alone is contemplated for reconstitution or merger under the 1994 Act or the AP Municipalities Act; the impugned proceedings are without jurisdiction; merger of the township is contrary to the proviso to Article 243Q of the Constitution read with the proviso to Section 3 of the A.P.Municipalities Act, 1965; the impugned proceedings are ex-facie illegal and unconstitutional; when there is a specific provision prohibiting such merger, viz., the proviso to Article 243Q of the Constitution and the proviso to Section 3 of the A.P.Municipalities Act, no assistance can be had to the provisions of the General Clauses Act or to read an implicit power in the provisions.
On the other hand the Learned Special Government Pleadaer would submit that the Government issued a notification, under Section 5(1) of the 1994 Act, declaring the areas, described in the schedule appended to G.O.Ms.No.No.159 dated 2.4.1998, as Venkatrayapuram Industrial Area Township which area was, prior thereto, within the jurisdiction of the Mandapaka Gram Panchayat; even though the word township has not been defined under the 1994 Act, it is nonetheless a local self-government similar to a Gram Panchayat; while the 1994 Act does not prescribe any procedure, for de- notifying the area and annulling the notification issued under Section 5 of the Act, yet, as the Government has the power to issue a notification, the power to withdraw/cancel the said notification is incidental thereto; even in the absence of a provision, for withdrawal/ cancellation of the notification under the 1994 Act, the provisions of the General Clauses Act apply and, thereunder, the power to issue a notification would include the power to amend or rescind orders or notifications; the State Government has ample power to cancel/ withdraw a notification issued under Section 5 of Act; the power to withdraw a notification is incidental to the power to issue the notification under Section 21 of the General Clauses Act, 1879, which are in para-materia with Section 15 of the A.P.General Clauses Act; and, as the power to issue the notification is traceable to a statutory provision, it implies, connotes and confers power and jurisdiction to withdraw the same or meddle with it in any manner as is warranted or is considered expedient.
While Section 5(1) of the 1994 Act enables the Government to declare a village or any other area to be a township if it is an industrial colony, and Section 5(2) enables the Commissioner to denotify the village which is constituted as an industrial township under Section 3(2) of the Act, the 1994 Act does not contain a specific provision for the denotification of an industrial township after its constitution.
Likewise, while the proviso to Section 3(1) of the A.P.Municipalities Act provides for the constitution of a township, it does not provide for its dissolution.
The question which arises for consideration is whether, on a township being constituted, the Government lacks the power to denotify it or to constitute it as a municipality or to merge it with a municipality?.
Does the absence of a specific provision in the Act, to cancel the notification whereby the township was constituted, mean that, under no circumstances, can the existence of the township be brought to an end?.
In cases where the scheme of the Act provides for amendment and variation of the notification issued under a provision of the Act in the manner indicated, exercise of the power to amend or vary any notification, by virtue of Section 21 of the General Clauses Act, must be taken as excluded by clear implication.
(State of M.P.v.
Ajay Singh ).The fact, however, remains that there is no specific provision in the 1994 Act or in the A.P.Municipalities Act for amendment or variation of a notification constituting a township.
Section 21 of the General Clauses Act, 1897 (X of 1897) provides that where, by any Central Act or Regulation, the power to issue notifications, ordeRs.rules or bye- laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any).to add to, amend, vary or rescind any notifications, ordeRs.rules or bye-laws so issued.
Likewise Section 15 of the A.P.General Clauses Act, 1981 stipulates that, where an Act confers a power to issue ordeRs.the power shall be construed as including a power exercisable in the like manner and subject to the like consent and conditions, if any, to rescind, revoke, amend or vary the ordeRs.Both Section 21 of the General Clauses Act, and Section 15 of the A.P.General Clauses Act, embody a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject- matter, context, and the effect of the relevant provisions of the statute.
In other words, it would be necessary to examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether, by the application of the rule of construction enunciated by Section 21, the power to cancel the notification can be said to vest in the appropriate government by necessary implication.
If the context and effect of the relevant provisions is repugnant to the application of the said rule of construction, assistance of the said section cannot be invoked.
(State of Bihar v.
D.N.Ganguly ).Section 21 of the General Clauses Act can be invoked only if, and to the extent if any, the context and the scheme of the Act so permits.
(Ajay Singh38; Peela Pothi Naidu v.
State of A.P ).The power to withdraw a notification is incidental to the power to issue a notification and, even in the absence of a provision for withdrawal in the statute, the power to withdraw the notification is available under Section 21 of the General Clauses Act, 1897 which is similar to Section 15 of the A.P.General Clauses Act.
If power is conferred under the statute for issuance of notification, it also confeRs.by necessary implication, the power and jurisdiction to withdraw the same.
(State of A.P.rep., by Secretary to Govt, PR & RD Dept, Hyderabad v.K.Srinivas Rao ).Accepting the submission of Sr.C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of the petitioneRs.that, once an industrial township is constituted, it cannot be denotified would have drastic consequences for, even if all the industries in the township no longer exist and the area ceases to retain any of characteristics of an industrial township, it must, nonetheless, be continued as a township since the Government lacks the power to dissolve it.
Similarly, even if the industrial township attains all the characteristics of a larger urban area, it would still have to be continued as an industrial township and not constituted as a municipal corporation.
There is nothing in the scheme of Part-IX-A of the Constitution of India or the A.P.Panchayat Raj Act which necessitates taking such a view.
Article 367(1) of the Constitution of India stipulates that, unless the context otherwise requires, the General Clauses Act, 1897 shall apply to the interpretation of the Constitution.
As such the provisions of Section 21 of the General Clauses Act would apply while interpreting the scope of the proviso to Article 243-Q(1) of the Constitution of India.
Likewise, the A.P.General Clauses Act can be used as an aid to the interpretation of the provisions of the 1994 Act or the A.P.Municipalities Act.
In the absence of a specific statutory provision for cancellation of a notification constituting an industrial township, and as the scheme of the 1994 Act and the A.P.Municipalities Act neither explicitly nor by necessary implication exclude the application of Section 15 of the A.P.General Clauses Act, it must be held that the Government has the power to cancel the earlier notification, constituting the township, both under Section 21 of the General Clauses Act and Section 15 of the A.P.General Clauses Act, and to dissolve the township.
The contention that the Government lacks the power to denotify an industrial township, once it is constituted, does not, therefore, merit acceptance.
VIII.
CAN AN INDUSTRIAL TOWNSHIP BE DENOTIFIED ON THE GROUND THAT THE INDUSTRIES LOCATED THEREAT ARE PAYING MEAGRE TAXES?.
Learned Special Government Pleader would submit that the information, furnished by the Panchayat Secretary of the township, shows that the income derived from industries is only Rs.5,76,3571- which includes Rs.26,904/- from Andhra SugaRs.whereas the income derived from houses of the general public was Rs.6,53,774/-; and this only shows that big industries like Andhra Sugars etc were paying meagre taxes which is the sole reason for their filing this writ petition opposing merger of the township with the municipality.
On the other hand Sr.C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of the petitioneRs.would submit that the justification given the respondents, for their having issued the impugned notification, is that the constituent industries are paying lesser taxes; the respondents have conveniently ignored the fact that the constituent industries are paying taxes strictly in accordance with the various GO's issued under the 1994 Act; the accounts of the township are audited regularly; taxes are fixed as per the G.Os issued by the Government from time to time, and not by the township; if the respondents had intended to collect taxes as per municipal laws, they could have extended them to the township under Section 5(7) of the 1994 Act; and the allegations, now made by the respondents, were never made earlier when the township was in existence.
As noted hereinabove Section 5(7) of the 1994 Act enables the Government, by notification in the A.P.Gazette, to direct that any of the provisions of the 1994 Act, or the A.P.Municipalities Act, shall apply to the township.
Section 60 of the 1994 Act enables the gram panchayat to levy in the village (a) a house-tax; (b) kolagaram, or katarusum ie, a tax on the village produce sold in the village by weight, measurement or number subject to such rules as may be prescribed; (c) such other tax as the Government may, by notification, direct any gram panchayat or class of gram panchayats to levy subject to such rules as may be prescribed.
Section 60(2) empowers the gram panchayat to levy a duty on the transfer of property situated in the area under the jurisdiction of the gram panchayat in accordance with the provisions of Section 69.
Section 60(3) enables the gram panchayat to levy (1) a vehicle tax; (ii) a tax on agricultural land for a specific purpose; (iii) a land- cess at the rate of two naya paisa in the rupee on the annual rental value of all occupied lands which are not occupied by or are adjacent and appurtenant to buildings; (iv) fees for use of porambokes or communal lands under the control of the gram panchayat; (v) fees for the occupation of buildings including chavadies and sarais under the control of the gram panchayat.
Section 60(4) enables the gram panchayat to levy a duty in the form of a surcharge on the seigniorage fees collected by the Government on material other than minerals and minor minerals quarried in the village.
Section 60(5) enables the gram panchayat, with the previous approval of the prescribed authority, to also levy, in respect of lands lying within its jurisdiction, a duty in the form of a surcharge at such rate, not exceeding twenty-five naya paisa in the rupee, as may be fixed by the gram panchayat.
Section 81 of the A.P.Municipalities Act, 1965, relates to levy of ordinary taxes and the control of the Government in respect thereof.
Under Section 81(1)(a) every Municipal Council shall, by resolution, levy (i) a property tax; (ii) a tax on carriages and carts; and (iii) a tax on animals.
Section 81(1)(b) enables the Council, by resolution and with the previous sanction of the Government, to also levy a tax on advertisements.
Section 81(2) stipulates that any resolution of a Council, determining to levy a tax, shall specify the rate at which and the date from which any such tax shall be levied.
Section 82 enables a duty to be levied on certain transfer of property in accordance with the provisions of the Act.
Section 83 stipulates that when a Council determines, subject to the provisions of Section 81, to levy any tax for the fiRs.time or at a new rate, the Commissioner shall forthwith publish a notification in the prescribed manner specifying the rate at which, the date from which and the period of levy, if any, for which such tax shall be levied.
It is not even the case of the respondents that the tax being paid by the industrial establishments in the township is lesser than what is required to be paid by them either under the 1994 Act or under the A.P.Municipalities Act, 1965 or that the industrial establishments have defaulted in payment of the taxes due and payable by them.
The records also do not disclose the municipal services, rendered in the township, being adversely affected by the meagre taxes allegedly being paid by the industrial establishments.
On the other hand the averments in the writ affidavit, that the municipal services provided by the township are far superior to those provided by Tanuku Municipality, has not been denied in the counter-affidavit nor has any material been placed before this Court to show that the municipal services provided by Tanuku Municipality are superior to those provided by the township.
In the absence of any material on record to show that the taxes paid by the Industries has adversely affected the municipal services rendered in the township, or that the Industries have avoided payment of taxes which they are statutorily liable to pay, the mere fact that the taxes paid by them are considered, by the respondents, to be meagre would not justify dissolution of the township itself.
IX.
CAN A TOWNSHIP BE DENOTIFIED IN THE ABSENCE OF ANY MATERIAL BEFORE THE GOVERNMENT TO SHOW THAT THE MUNICIPAL SERVICES BEING RENDERED THEREAT IS EITHER INSUFFICIENT OR INADEQUATE?.
Sr.C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of the petitioneRs.would submit that none of the facts, pleaded by the Petitioners in the writ affidavit, are disputed including material facts regarding consistent progress shown by the township since its inception, its good governance, the provision of 24 hours power supply in the township, the provision of 24 hours drinking water, planned roads, street lights, underground drainage, education and advanced medical facilities, the lack of basic civic amenities in respondent No.7 Municipality, and its violation of the town planning laws; as exemplary civic amenities are being provided by the township, and adequate civic amenities are not being provided in the respondent No.7 Municipality, there is no justification for respondent Nos.1 and 2 to pass the impugned orders in view of the prohibition in the proviso to Article 243Q of the Constitution, and the proviso to Section 3 of the A.P.Municipalities Act; the scheme of the 1994 Act, the proviso to Article 243Q of the Constitution, and the proviso to Section 3 of the A.P.Municipalities Act, do not confer any power on the Government to cancel the notification constituting the township as, admittedly, proper and adequate municipal services are being provided by them; the word ".being".
means existence; as there is no dispute that the municipal services, being provided by the township, are far superior to those provided by respondent No.7 Municipality, the Government has no power to cancel the notification constituting the township; and G.O.Ms.No.194, Panchayat Raj and Rural Development Department, dated 26.03.2013 must be declared illegal.
Article 243-Q constitutes three types of municipalities (a) a Nagar Panchayat (b) a Municipal Council and (c) a Municipal Corporation.
The proviso to Article 243-Q(1) deals with all three types of municipalities constituted under clause (1).It provides that a municipality under clause (1) may not be constituted in certain circumstances.
This would refer to any of the three types of municipalities.
Although the proviso refers to such urban area or part thereof, this urban area also covers a transitional area in transition from rural to urban.
It is because this area is also in the process of turning into an urban area that it is put under Part IX-A which deals with municipalities in urban areas.
Therefore, in respect of any of these three types of areas set out in clause (1) of Article 243-Q, having regard to the size of the area, the municipal services being provided or proposed to be provided by an industrial establishment in that area, and such other factors as the Governor deems fit to consider, he may, by public notification, specify such area to be an industrial township.
(Saij Gram Panchayat v.
State of Gujarat ).The Government is required, under the proviso to Article 243-Q(1) of the Constitution of India, to have 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 to take into consideration such other factors as they deem fit.
The manner in which an industrial township is required to be constituted, in terms of the proviso to Article 243-Q(1).is by way of a public notification.
The expression have regard to, in the proviso to Article 243-Q(1).obliges the Government to consider as relevant data, material to which it must have regard.
(Saraswati Industrial Syndicate Ltd.v.Union of India ; State of U.P.v.
Renusagar Power Co.; Ryots of Garabandho v.
Zamindar of Parlakimedi ).The form of the words having regard to no doubt lends itself to the suggestion that regard should be paid only to the matters mentioned.
As the statute does not say having regard only, it would not be reasonable to consider only the matters mentioned, isolated from other relevant factORS.(Shri Sitaram Sugar Co.Ltd.v.Union of India ; CIT v.
Williamson Diamonds LTD.; CIT v.
Gungadhar Banerjee and Co.(P) LTD.; Saraswati Industrial Syndicate Ltd.43).The said phrase means that the facts, which may be taken note of, are to be a guide, and not a fetter.
(Shri Sitaram Sugar Co.Ltd.46; State of Karnataka v.
Ranganatha Reddy ).The expression having regard to, in the context in which it is used, would only mean that the government can, after taking into account the matters mentioned therein, consider any other matter which may also be relevant.
The expression is not having regard only to but having regard to.
These words are not a fetter; they are not words of limitation, but of general guidance.
The government must, of course, address itself to the questions to which it must have regard; and, having done so, it is for the government to determine what it is empowered to determine with reference to what it reasonably considers to be relevant for the purpose.
(Shri Sitaram Sugar Co.Ltd.46; Union of India v.
Kamlabhai Harjiwandas Parekh ).Both the proviso to Article 243-Q(1) of the Constitution of India and the proviso to Section 3(1) of the A.P.Municipalities Act, while conferring power on the Government to constitute an industrial township, requires its exercise to by guided by, and on a consideration of, (i) size of the area; (ii) the municipal services being provided or proposed to be provided by an industrial establishment in that area; and (iii) such other factors as it may deem fit.
A further limitation on the power, to constitute an industrial township, is that it can be exercised only by way of a public notification.
Once a public notification is issued, specifying the area to be an ".Industrial Township"., the concerned industrial establishment of that area will provide the municipal services to all persons living in that area.
(Jawaharlal Sharma v.
State of Jharkhand ).In view of Section 21 of the General Clauses Act, a notification issued under a statutory provision can be cancelled or modified only in the like manner i.e.by notification in the gazette.
(Mahendralal v.
State of U.P.).The power to rescind a notification, under Section 21 of the General Clauses Act and Section 15 of the A.P.General Clauses Act, is subject to the like sanctions and conditions.
The phrase subject to, conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject.
(Chandavarkar Sita Ratna Rao v.
Ashalata S.
Guram ; South India Corpn.
(P) Ltd.v.Secy., Board of Revenue, Trivandrum ).The power to rescind a notification can, therefore, be exercised by the Government only on conditions similar to those on the basis of which it is empowered to issue the notification.
The power to cancel the notification can be easily conceded to the competent authority and so also the power to modify or vary it be likewise conceded; but the said power must inevitably be exercised within the limits prescribed by the provision conferring the said power.
(Gopi Chand v.
Delhi Administration ).Exercise of power under the Act in the like manner and subject to the like sanctions and conditions (if any).mean similar conditions.
(Ram Bali v.
State of W.B.).The power to rescind a notification is circumscribed by the requirement of its exercise being subjected to like sanctions and conditions.
The Chambers Dictionary (New Edition) defines like to mean identical, equal or nearly equal in any respect, similar, resembling.
The word condition is defined therein to mean pre-requisite; prior requirement; to restrict, limit; and sanction to mean a penalty or reward expressly attached to non-observance or observance of the requirements.
Blacks Law Dictionary, (Sixth Edition) defines the word sanction to mean penalty or other mechanism of enforcement used to provide incentives for obedience with the law or with rules and regulations.
The word condition is defined therein to mean a qualification or restriction.P.Ramanatha Aiyers the Law Lexicon, (reprint edition, 2002) defines condition to mean a thing on whose fulfilment another thing or act is made to depend; the nature, quality, qualifications of the order or decision; and sanction to mean as that part of a law which inflicts a penalty for its violation or bestows a reward for its observance.
Similar factORS.which the Governor is required to have in regard while constituting an industrial township, must also be had in regard while rescinding the said notification.
The Government is, therefore, required to have regard, among otheRs.to whether adequate and sufficient municipal services are being provided by the industrial establishments in the township, and whether better municipal services are being provided in the municipality with which the township is proposed to be merged consequent on its dissolution.
It is only if these aspects have been considered by it can the Government exercise its powers under Section 21 of the General Clauses Act and Section 15 of the A.P.General Clauses Act to denotify or dissolve a township.
The municipal services which are required to be provided in terms of the A.P.Municipalities Act, 1965 are construction and maintenance of water works for supply of water (Section 134).providing sufficient supply of water fit for the use of inhabitants (Section 138).supply of water through pipelines for consumption to the owner or occupier of the building (Section 140).to cause public streets to be lighted and provide such lamps and works as is necessary therefor (Section 146).to provide and maintain sufficient system of public drains (Section 147).to permit connection of house-drains or private latrines with public drains or underground sewers (Section 150).provide and maintain sufficient number of public latrines and urinals (Section 156).issue licences for maintenance of latrines or urinals for public use (Section 156- A).make adequate arrangements for regular sweeping and cleaning of the streets daily, and removal of filth and carcasses of animals from private premises (Section 164).maintenance and repairs of public streets and bridges (Section 171).specify building and street alignment (Section 175).regulate construction of buildings (Sections 176, 177 and 178).cause the chief public streets to be watered (Section 180).prohibit obstruction over streets (Section 189).regulate construction of buildings (Chapter IV).take precautions in case of dangerous structures, trees and places (Chapter V).prohibit corruption of water by chemicals (Section 270-A).provide municipal slaughter-houses (Section 271).make provision for public markets (Section 276).cause constant and vigilant inspection of animals, carcasses, meat, poultry, flesh, fish, fruit, vegetables, corn, bread, flour, milk, ghee, butter, oil and other edible articles exposed or hawked or being sold or prepared for sale (Section 293).providing places for the disposal of the dead (Section 300).make provision for burial and burning grounds and crematoria (Section 302).ensure compulsory vaccination (Section 322) etc.As the power to constitute an industrial township, under the proviso to Article 243-Q(1).is required to be exercised by the Governor, having regard to the municipal services being provided or proposed to be provided by an industrial establishment in that area, the discretion to denotify an industrial township can, in view of Section 21 of the General Clauses Act, 1897, be exercised by the Government only after it satisfies itself, among otheRs.that the municipal services hitherto being provided by the industrial establishment in the township are no longer being provided, or that such services can be more efficiently provided by another local body.
Discretion provides an option to the authority concerned to adopt one or the other alternative.
A proper and legal exercise of discretion is one where the authority examines the fact, is aware of the law and then decides objectively and rationally what serves the interest better.
The action or decision must not only be reached reasonably and intelligibly but it must be related to the purpose for which power is exercised.
When a statute provides guidance for the exercise of discretion, then the action should be in accordance with it.
The extent of discretion, or constraints on its exercise, depends on the provisions under which it is exercised.
It must withstand scrutiny of the legislative standard provided by the statute itself.
The authority exercising discretion must not appear to be impervious to legislative directions.
It should be guided by reasonableness and fairness.
The legislature never intends its authorities to abuse the law or use it unfairly.
(Bangalore Medical Trust v.
B.S.Muddappa ).It is only after considering the factORS.referred to in the proviso to Article 243-Q(1) of the Constitution of India, can the Government exercise its discretion either to continue or dissolve the township.
The records placed before this Court reveal that no information was available with the Government to show either that the municipal services provided by the township were insufficient and inadequate or the municipal services provided by Tanuku Municipality were superior to those provided in the township, necessitating exercise of discretion to cancel the earlier notification constituting the township, and for its merger with Tanuku Municipality.
The records do not also disclose any exercise having been undertaken by the Government to examine whether the municipal services have so deteriorated as to warrant dissolution of the township or, for that matter, whether the municipal services being provided by Tanuku Municipality are superior to those being provided by the industrial establishments in the township, justifying merger of the township with Tanuku Municipality.
Sr.C.V.Mohan Reddy, Learned Senior Counsel, has placed before this Court a comparative table of the municipal services being provided by the township and the municipal services being rendered in Tanuku Municipality, to contend that the municipal services in the former are far superior to those in the latter.
It would be wholly inappropriate for this Court to take upon itself the task of making a comparative assessment of the municipal services provided by the township and those rendered by the Tanuku Municipality.
Suffice it to hold that it is only after such an exercise is undertaken and the Government is satisfied, on the material on record, that the municipal services being rendered in the township is such that its continued existence is not warranted, or the municipal services rendered by the municipality are far superior justifying merger of the township with the municipality, can power be exercised to issue a notification to dissolve the township.
As no such exercise has been undertaken by the Government, and it did not have regard to the municipal services being provided in the township, while exercising discretion to cancel the earlier notification constituting the township, the impugned G.Os are liable to be set aside.
This Court may not be understood to have held that the Government is not entitled to denotify a township if the municipal services being provided thereat are adequate or if they are better than those provided in the municipality with which it is sought to be merged.
All that this Court has held is that the Government should have regard to these factORS.and should exercise its discretion to denotify a township only after it has examined and taken these factors into consideration.X.IS THE ACTION OF THE RESPONDENTS, IN DENOTIFYING THE TOWNSHIP AND MERGING IT WITH TANUKU MUNICIPALITY, CONTRARY TO THE STATUTORY RULES IN FORCE?.
Sr.C.V.Mohan Reddy, Learned Senior Counsel, would submit that the impugned resolution of the township is illegal as the meeting was convened by respondent No.13 contrary to the township rules notified in G.O.Ms.No.20, dated 9.1.1998; the vacancies of the township committee were not filled up inspite of the directions of this Court in W.P.No.31464 of 2011 dated 23-01-2012; petitioner Nos.2 and 3 had sought an adjournment as the meeting was convened with less than 24 hours notice, though it can only be convened with three clear days notice and on a working day, but not on a Sunday; the dissent note of the Chairman of the Meeting was not even referred to in the impugned order; and, as an authority can act only in the prescribed manner, or not at all, the impugned proceedings are liable to be quashed.
On the other hand the Learned Special Government Pleader would submit that all issues were considered, and a decision was taken based on the majority opinion of the township; the proposal for merger, which culminated in the passing of the impugned order, was made only after five, of the six, members of the township, present at the meeting had passed a majority resolution agreeing for merger of the township with Tanuku Municipality; the prescribed quorum, for commencing and holding a meeting is one-third of the total strength under Rule 10; this requirement has been complied with as 5, of the 6, members present had resolved to merge the township with the municipality; the meeting of the township committee was scheduled to be held on a Sunday only to facilitate the presence of respondent Nos.8 and 9, who were then a Member of the Legislative Assembly and a Member of Parliament, in view of the on-going Assembly and Parliament sessions; no objection was raised by the 4th petitioner, who was acting as the Chairman of the township committee, on this aspect at any point of time; this plea is only an after thought, and has been raised only to scuttle the process of merger, as he was unsuccessful in opposing the resolution passed by the Township Committee; and the statutory Rules have not been violated by the respondents.
The A.P.Township Committee (Conduct of Business) Rules, 1997 were made in the exercise of the powers conferred by Section 5(6) read with Section 268 of the 1994 Act (hereinafter called the business rules).Rule 5 stipulates that the township committee shall meet atleast once every month in its office for the transaction of its official business on such days and at such times as it may fix, and also at other times as often as the Chairman in the interest of the township may consider necessary.
Under the proviso thereto no meeting shall be held on a public holiday.
Under the Explanation to Rule 5, the expression public holiday has been stated to include Sundays and any other day declared by the Government, by notification in the Andhra Pradesh Gazette, to be a public holiday.
Rule 6(1) prohibits a meeting of the township committee being held, unless notice of the day and the time when the meeting is to be held and of the business to be transacted thereat has been given atleast three clear days before the day of the meeting.
Rule 6 enables the Chairman, in cases of urgency, to convene a meeting by giving a shorter notice than that specified in sub-rule(1).Rule 8(1) requires every meeting of the township committee, save as otherwise provided in the rules, to be presided by the Chairman and, in his absence, by a member chosen in such a meeting to preside over the meeting.
Rule 9 stipulates that all the meetings of the township committee shall be open to the public and, under the proviso thereto, the presiding member may, in the interest of the township committee, in any particular case, direct that the public generally or any particular person shall withdraw from the premises of the meeting.
Rule 10 stipulates that all questions which come up before the township committee at any meeting shall be decided by a majority of the members present and voting at the meeting and, in case of equality of votes, the presiding member shall have and exercise a second or casting vote.
The said Rule also provides that, when a resolution is not carried unanimously, the names of the members who vote for and against it shall be recorded.
Under Rule 11 no business shall be transacted at a meeting of any township committee unless there be present atleast one third of the number of members then on the rolls of the township committee.
Under Rule 12 if, within half an hour after the time appointed for a meeting, the quorum is not present the meeting shall stand adjourned, unless all the members present agree to wait longer.
While Rule 6(1) of the business rules requires atleast three days notice to be given, for convening a meeting of the township, it is not in dispute that the meeting, in the present case, was convened at less than 24 hours notice.
Similarly, while the proviso to Rule 5 of the business rules prohibits a meeting from being held on a public holiday and the explanation thereto defines public holiday to include a Sunday, a meeting of the township committee was convened on a Sunday, in violation thereof.
The statutorily prescribed procedure, in the business rules, have not been adhered to.
When a procedure has been laid down, the authority must act strictly in terms thereof.
(Taylor v.
Taylor ).If a statute has conferred a power to do an act, and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any manner other than that which has been prescribed.
The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted.
(State of U.P.v.
Singhara Singh ; Dhananjaya Reddy v.
State of Karnataka ; Ramchandra Murarilal Bhattad v.
State of Maharashtra ; and State of Gujarat v.
Shantilal Mangaldas ).The question which, however, necessitates examination is whether contravention of the business rules would require the impugned G.Os.
being set aside.
No statutory provision either plenary or subordinate has been brought to the notice of this Court which requires the Government to obtain approval of the township committee before denotifying a township.
In the absence of any statutory obligation placed on Government, to afford the township an opportunity of being heard before bringing its existence to an end, I see no reason to delve further on this aspect, or to set aside the impugned G.Os on this ground, as the G.Os are liable to be set aside for contravention of the proviso to Article 243-Q(1) of the Constitution of India, and the proviso to Section 3(1) of the A.P.Municipalities Act, 1965.
XI.
CONCLUSION: Sr.C.V.Mohan Reddy, Learned Senior Counsel appearing on behalf of the petitioneRs.submits that the petitioner does not press for an adjudication of the validity of G.O.Ms.No.101 Panchayat Raj and Rural Development (MDL.II-A) Department, dated 18.03.2013, and the challenge in this Writ Petition is confined only to the validity of G.O.Ms.No.194 Panchayat Raj and Rural Development (Pts.IV) Department dated 26.03.2013 and G.O.Ms.No.123 Municipal Administration and Urban Development (Elec.1) Department, dated 26.03.2013.
As G.O.Ms.No.194 Panchayat Raj and Rural Development (Pts.IV) Department, dated 26.03.2013, cancelling the earlier notification constituting the township, falls foul of the proviso to Article 243Q(1) of the Constitution of India, and the proviso to Section 3(1) of the A.P.Municipalities Act, 1965 it is liable to be, and is accordingly, set aside.
Consequently, G.O.Ms.No.123 Municipal Administration and Urban Development (Elec.1) Department, dated 26.03.2013 must also be, and is accordingly, set aside.
It is made clear that this order shall not preclude the respondents from taking into consideration the factors specified in the proviso to Article 243Q(1) of the Constitution of India, and the proviso to Section 3(1) of the A.P.Municipalities Act, and thereafter pass orders afresh in accordance with law.
The Writ Petition is allowed to the extent indicated hereinabove.
However, in the circumstances, without costs.
The miscellaneous petitions pending, if any, shall also stand disposed of.
______________________________ RAMESH RANGANATHAN, J.
Date: 09-09-2014.