Anjar Municipality and ors. Vs. J.M. Vyas and ors. - Court Judgment

Excerpt:
constitution - validity - section 263 of gujarat municipalities act, 1964 and articles 14, 19, 21 and 243u of constitution of india - validity of section 263 challenged on ground that same was unconstitutional and ultra vires of article 243u - section 263 provide for dissolution of municipalities - court observed that provisions regarding dissolution of municipalities found in statute itself - further article 243u does not prohibit competent legislature to make provision for dissolution of municipality provided that before such action is taken municipality is given reasonable opportunity of being heard - held, section 263 valid. - - (4) if, after inquiry made, the state government so directs the period of supersession with all the consequences aforesaid shall, from time to time be.....c.k. thakkar, actg. c.j.1. in this petition, the petitioners have challenged constitutional validity of section 263 of the gujarat municipalities act, 1963, as amended by the amendment act of 1993 (gujarat act 17 of 1993). it is the say of the petitioners that the provisions of section 263 are unconstitutional and ultra vires part iii as also article 243u of the constitution of india. a writ of mandamus is also sought for quashing and setting aside a notice dated january 27,1999 annexure a to the petition. a prayer is made for a writ of prohibition restraining the respondent authorities from proceeding with the notice annexure a to the petition.2. the case of the petitioner in that the petitioner no. 1 anjar municipality was constituted under the provisions of the gujarat municipalities.....

Judgment:

C.K. Thakkar, Actg. C.J.

1. In this petition, the petitioners have challenged constitutional validity of Section 263 of the Gujarat Municipalities Act, 1963, as amended by the Amendment Act of 1993 (Gujarat Act 17 of 1993). It is the say of the petitioners that the provisions of Section 263 are unconstitutional and ultra vires Part III as also Article 243U of the Constitution of India. A writ of mandamus is also sought for quashing and setting aside a notice dated January 27,1999 Annexure A to the petition. A prayer is made for a writ of prohibition restraining the respondent authorities from proceeding with the notice Annexure A to the petition.

2. The case of the petitioner in that the petitioner No. 1 Anjar Municipality was constituted under the provisions of the Gujarat Municipalities Act, 1963 (hereinafter referred to as 'the Act') and petitioner Nos. 2 to 16 were duly elected Councillors of petitioners No. 1 Municipality. All the Councillors are nationals and citizens of India and are entitled to protection of Fundamental Rights guaranteed in Part III of the Constitution. It is alleged in the petition that as the respondent No. 1 Municipality and the majority of the Councillors belong to the party which is not in power at the State level, the State Government and the persons having political influence, in exercise of arbitrary powers got a notice issued on January 27, 1999 calling upon the petitioner No. 1 to show cause why the municipality should not be dissolved under Sub-section (1) of Section 263 of the Act. The said action is beyond jurisdiction, without authority of law and has been taken in colourable exercise of power and under the political pressure of certain members of Legislature Assembly, including respondent No. 4, who is a sitting member of Legislature Assembly belonging to Bharatiya Janata Party (BJP) which is in power. It was stated that similar notices have been issued to several municipalities and corporations where the majority councillors are from the party order than the party in power at the State level. The exercise of power is, therefore, vitiated and since the issuance of notice is a male fide action on the part of the respondent authorities, they should be permanently restrained from proceeding with the said notice.

3. We have heard Mr. K.G. Vakharia, learned Senior Advocate instructed by Mr. Tushar Mehta, for the petitioners, and Mr. S.N. Shelat, learned Additional Advocate General instructed by Mr. S.R. Divetia, learned AGP for the respondents. As per roster, if an action of issuance of notice is challenged, the petition would have been placed before a single Judge dealing with such matters. It is, however, placed before this Court, since the constitutional validity of a statutory provision is challenged. The question is whether a prima facie case has been made out by the learned Counsel for the petitioners that the provisions of Section 263 of the Act, as amended by Gujarat Act 17 of 1993, are ultra vires or unconstitutional.

4. Section 263 before the amended of 1993 read as under:

263. (1) If, in the opinion of the State Government a Municipality is not competent to perform or deliberately makes default in the performance of the duties imposed on it by or under this Act, or otherwise by law or exceeds or abuses its powers, the State Government may, after giving the municipality an opportunity to render an explanation, by an order published, with the reasons therefor, in the Official Gazette declare the municipality to be incompetent or in default, or to have exceeded or abused its powers, as the case may be and may dissolve such municipality, or supersede it for such period not exceeding two years as may be specified in the order. Such period may extend beyond the term for which the councillors of the municipality would have held office under Section 8, if the municipality had not been superseded under this section;

Provided that the period of supersession of a municipality shall be deemed to extend up to the date on which the first general meeting of the municipality as established under Sub-section (5) is held and at which quorum is present.

(2) When the municipality is so dissolved or superseded, the following consequence of dissolution or supersession consequence shall ensue :--

(a) all councillors of the municipality shall, in the case of supersession as from the date of the order of supersession, and in the case of dissolution as from the date specified in the order of dissolution, vacate their offices as such councillors;

(b) all powers and duties of the municipality shall, during the period of dissolution or supersession, be exercised and performed bysuch officer as the Director from time to time appoints in this behalf;

(c) all property vested in the municipality shall, during the period of dissolution or supersession, vest in the State Government;

(d) the officer appointed under Clause (b) may delegate his powers and duties to an individual or to a committee or sub-committee.

(3) On the issue of an order of dissolution under Sub-section (1), elections of councillors shall he held under the provisions of this Act or of the rules made thereunder on or before a date to be specified by the State Government in the order, and the municipality shall be re-established by the election or appointment of councillors under the aforesaid provisions on such date as may, be specified by the State Government in the aforesaid order.

(4) If, after inquiry made, the State Government so directs the period of supersession with all the consequences aforesaid shall, from time to time be continued by an order published as aforesaid but not beyond a period of two years from the date of the publication of the order of supersession published under Sub-section (1), or the period of supersession shall be a like order be curtailed to such extent as may be specified in the order.

(5) After the municipality is superseded it shall be re-established by the election or appointment of councillors under the provisions of this Act or the rules made thereunder applicable thereto;

(a) if no direction has been made under subsection (4), on the expiration of the period specified in the order of supersession under subsection (1), and

(b) if a direction has been made under subsection (4), no such date of as is fixed under that sub-section for the re-establishment of the municipality.

Explanation - If for any reason the number of vacancies in a municipality exceeded two thirds of the total number of seats the municipality shall be deemed to be not competent to perform the duties imposed on it by or under this Act.'

It may be stated here that by the Constitution (Seventy-third Amendment) Act, 1993, Part IX has been added relating to Panchayats (Arts. 243 to 243-O) Likewise, by the Constitution (Seventy-fourth Amendment) Act, 1992, Part IXA has been inserted elating to Municipalities and those provisions are found in Articles 243P to 243ZG.

5. In the light of the provisions as inserted by Part IXA touching municipalities, certain provisions of the Municipalities Act were amended. We are not concerned with other amendment in the Act except Sections 263 and 263A. By Section 20 of the Amendment Act 17 of 1993, Section 263 of the Principal Act has been amended. After the amendment, the said section reads thus:--

263. (1) If, in the opinion of the State Government a Municipality is not competent to perform or deliberately makes default in the performance of the duties imposed on it by or under this Act, or otherwise by law or exceeds or abuses, its powers, the State Government may, after giving the municipality an opportunity to render an explanation, by an order published, with the reasons therefor, in the Official Gazette declare the municipality to be incompetent or in default, or to have exceeded or abused its powers, as the case may be and may dissolve such municipality.

(2) When the municipality is so dissolved, the following consequences of dissolution shall ensue :--

(a) all councillors of the municipality shall in the case of dissolution as from the date specified in the order of dissolution, vacate their offices as such councillors;

(b) all powers and duties of the municipality shall, during the period of dissolution , be exercised and performed by such officer as the Director from time to time appoints in this behalf;

(3) Constitution of Municipality after dissolution. -- (a) An election to constitute a municipality shall be completed before the expiration of a period of six months from the date of its dissolution.

Provided that where the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the municipality for such period; (b) A municipality constituted upon the dissolution of municipality before the expiration ofits duration shall continue only for the remainder of the period for which the dissolved municipality would have continued had it not been so dissolved.'

Consequently, Section 263A which was in the principal Act stands deleted.

6. Mr. Vakharia, learned Counsel for the petitioners, raised the following contentions in support of the petition;

(1) The provisions of Section 263 of the Act are ultra vires, unconstitutional and violative of Articles 14, 19 and 21 of the Constitution.

(2) Article 243U of the Constitution prescribes duration of municipalities and no law can be enacted which is not consistent with the said provisions. Section 263 of the Act, is, therefore, ultra vires Article 243U.

(3) Though after the amendment in the Constitution, the provisions relating to supersession of municipality have been deleted, in substance and in reality, they have been retained. Section 263 of the Act is thus inconsistent with constitutional provision and is void under 13(1) of the Constitution.

(4) After insertion of Part IXA in the Constitution, it is not open to the State Government to dissolve any municipality for any act and/or omission enumerated in Section 263 of the Act.

(5) Even if it is assumed that Section 263 of the Act is intra vires and constitutional, in the facts and circumstances of the case, the power has been exercised mala fide and with oblique motive and the notice deserves to be quashed.

(6) The petitioner No. 1 has not committed any act omission covered by Section 263 of the Act and the issuance of notice is without jurisdiction.

Mr. S.N. Shelat learned Addl. Advocate General, appeared on caveat and raised the following contentions :--

(1) The provisions of Section 263 of the Act are not ultra vires, unconstitutional and violative of Arts. 14, 19 or 21 of the Constitution.

(2) Section 263 of the Act is not inconsistent with or ultra vires Part IXA of the Constitution.

(3) Article 243U enables the authorities to take appropriate action in accordance with law under the relevant statute. It is, therefore, open to the State Government to take appropriate action under Section 263 of the Act.

(4) Dissolution and supersession are two different and distinct concepts. After insertion of Part IXA of the Constitution , a municipality cannot now be superseded by the State Government. That, however, does not mean that a municipality cannot be dissolved.

(5) The petition is premature inasmuch as only a show cause is issued. It is open to the petitioner No. 1 to raise all contention before the State Government.

(6) Whether a notice calling upon a municipality to show cause why it should be dissolved is mala fide depends upon the facts and circumstances of the case and such petition must be placed for admission before a single Judge taking such matters.

7. The only question we intend to answer in whether the provisions of Section 263 of the Act, as amended by Act 17of 1993 are ultra vires Part III or Part IXA of the Constitution.

8. Part IXA came to be inserted in the Constitution by the Constitution (Seventy-fourth Amendment) Act, 1992. Mr. Vakharia specifically referred to Article 243U, which reads as under

'243-U. Duration of Municipalities. -- (1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer;

Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.

(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in Clause (1).

(3) An election to constitute a Municipality shall be completed, --

(a) before the expiry of its duration specified in Clause (1);

(b) before the expiration of a period of six months from the date of its dissolution;

Provided that before the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election underthis clause for constituting the Municipality for such period.

(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under Clause (1) had its not been so dissolved.'

9. He also invited our attention to Article 243ZF which provides for continuance of existing laws. The said Article reads thus :--

243-ZF. Continuance of existing laws and Municipalities -- Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in fore until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier.

Provided that all the Municipality existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State, or, in the case of a State having a Legislative Council, by each House of the Legislature of that State.'

Mr. Vakharia submitted that in view of the amendments in the Constitution, the Act was required to be amended and accordingly Act 17 of 1993 was enacted by the Legislature. He stated that no doubt certain provisions relating to supersession of municipalities have been deleted. Similarly, a provision relating to appointment of officers to perform duties of municipalities when elections could not be held also came to an end, but the provisions relating to dissolution of municipalities have been maintained. Such a provision, in the submission of Mr. Vakharia, is inconsistent with Article 243U of the Constitution and hence it must be declared ultra vires.

10. Our attention in that connection was also invited to various decisions of the Hon'ble Supreme Court and of this Court.

11. In Rasikchandra Devshankar Acharya v. State of Gujarat, (1994) 2 GLH 573, this Court had an occasion to consider the Constitution (Seventy-third Amendment) Act as well as Constitution (Seventy-fourth Amendment) Act. In that case, constitutional validity of the Gujarat Local Authorities (Temporary Postponement of Elections ) Act, 1994 was before the Court. A writ of mandamus was sought by the petitioner directing the State Government to act in accordance with the provisions of the Constitution and to hold elections of certain municipalities by declaring the Gujarat Local Authorities (Temporary Postponement of Elections) Act, 1994 ultra vires being inconsistent with and violative of Part IX A of the Constitution. The Division Bench, after considering the scheme of the constitutional amendments, allowed the petition and declared Section 3 of the Act ultra vires, null and void. A consequential direction was also issued by the Division Bench to hold election of certain municipalities.

12. In Rasiklal Acharya, the Court considered the object of the amendment in the Constitution. In paragraphs 12 to 20, the Bench, referring to the Objects and Reasons observed:

'12. The Constitution Amendment Bills were first moved in 1991 in Parliament on 10th Sept. 1991, with regard to the Panchayat Raj Institutions and on 11th Sept. 1991, with regard to Urban Local Bodies.

13. In the Statement of Objects and Reasons of the Constitution Amendment Bills regarding the Panchayat Raj Institutions, it was stated that in the light of the experience in the last forty years and in view of the shortcomings which had been observed;

'....... It is considered that there is an imperative need to enshrine in the Constitution certain basic and essential features of Panchayati Raj Institutions to impart certainty, continuity and strength to them ........'

The main features of the Amendment Bill were mentioned which, inter alia, provided for Constitution of the Panchayats at the village and intermediate levels, the duration of the Panchayat and reservation of seats; etc.

14. In the Statement of Objects and Reasons in the Constitutional Amendment Bills relating to urban local bodies it was, inter also, stated that:

'In many State local bodies have become weak and ineffective on account of variety of persons, including the failure to hold regular elections, prolonged supersession and inadequate devolution of powers and functions. As a result, Urban Local Bodies are not able to perform effectively as vibrant democratic units of self Government.

2. Having regard to these inadequacies it is considered necessary that provisions relating to Urban Local Bodies are incorporated in the Constitution particularly for -

(i) putting on a firmer footing the relationship between the State Government and the Urban Local Bodies with respect to -

(a) the functions and fixation powers, and

(b) arrangement fore revenue sharing;

(ii) ensuring regular conduct of elections;

(iii) ensuring timely elections in the case of supersession; and

(iv) providing adequate representation for the weaker section like Schedule' Caste, Scheduled Tribes and women.'

15. The aforesaid two Bills were then referred to the Joint Committee of two Houses of Parliament in Dec. 1991. On receipt of the Report of the Joint Committee, the Constitution Amendment Bill, as reiterated by the Joint Committee, was again moved in the Lok Sabha by the then Minister of State in the Ministry of Rural Development. While introducing the Bills, the Honourable Minister referred to efforts being made by some States for providing wide ranging delegation of powers and authority down to the District and intermediate level. But it was noted that in the case of most of the States, the record as far as Panehayati Raj Institutions were concerned was not very good.

16. A similar statement was made by the Honourable Minister for Urban Development while moving the Constitutional Amendment Bills relating to the Urban Local Bodies. It was, inter alia, stated by the Minister in his speech;

'......... Having regard to the present inadequacies and with a view to restore the rightful place in political governance for urban local bodies, it is considered necessary that they should be provided a Constitutional status and necessary provisions made to; (a) ensure regular and fair conduct of elections (b) ensure term of five years for elected urban local bodies and election within six months in cases of supersession; (c) provide for specific representation for women and the Schedule Castes and Tribes; (d) provide for devolution of functions and powers to municipalities and (e) provide for constitution of State Finance Commission every five years to ensure regular devolution of resources to local bodies. The Constitution Amendment Bill which is before you for your consideration constituted but the first stage of a process. Once these Bills are enacted, we must carry this process forward by ensuring appropriate amendments to State legislations and thereafter ensuring effective executive implementation .......'

17. The said Amendment Bills were passed by both the House of Parliament and the Seventy-third Amendment came into force from 24th April, 1993, while Seventy-fourth Amendment came into force from 1st June, 1993.

18. By Seventy-third Amendment, Part IX of the Constitution was inserted relating to Panchayats. The Articles so inserted are Arts. 243 to Art. 243-O. Article 243A relates to Gram Sabha, Article 243-B relates to constitution of Panchayats; Article 243-C provides for composition of Panchayats; Article 243-D relates to reservation of Panchayats; Article 243-E relates to duration of Panchayats; Article 243-F provides for disqualifications for membership; Article 243-G relates to powers, authority and responsibilities of Panchayats; Article 243-H refers to the powers to impose taxes by , and Funds of, the Panchayats; Article 243-I provides for constitution of Finance Commission to review Financial position, Article 243-J relates to Audit of accounts of Panchayats; Article 243K relates to Elections of the Panchayats; Article 243L relates to application of Part IX of Union Territories Article 243-M enumerates the area to which Part IX is not to apply, Article 243-N provides for continuation of existing laws and Panchayats; and Article 243-O provides for Bar to interference by Courts in electoral matters.

19. The provisions in Part IX-A of the Constitution, relating to the Municipalities, are similar, if not identical, to the provisions of Part IX. Article 243-P contains definitions; Article 243-Q relates to constitution of Municipalities; Article 243-R provides for composition of Municipalities; Article 243-S provides for constitution and composition of Wards Committee, etc.; Article 243-T provides for reservation of seats, Article 243U states the duration of Municipalities, etc; Article 243-V provides for disqualification for membership; Article 243-W relates to powers, authority and responsibilities of Municipalities; etc; Article 243-X provides for power to impose taxes by, and Funds of the Municipalities; Article 243-Y relates to the Finance Commission, Article 243-Z provides for audit of accounts of Municipalities; Article 243ZA relates to election to the Municipalities, Article 243ZB provides for application of Part IXA to Union Territories. Article 243ZC mentions the area to which Part IXA is not to apply; Article 243ZD provides for Committee for district planning; Article 243ZE provides for Committee for Metropolitan Planning; Article 243-ZF relates to continuation of existing laws and Municipalities, and Article 243-ZG contains a bar to interference by Courts in an electoral matter.

20. Briefly stated, the said Chapter IX and IX-A which provides for composition, duration, disqualification for membership, election, power of Parliament to make provision with respect to election and bar of interference by Court in an electoral matter are on the lines similar to the Article relating to the Houses of Parliament and the State Legislative Assembly. As a result of the aforesaid provisions, democratic institutions are intended to exist at all levels in the country right from the village to the Parliament.'

13. From the above observations, it is clear that the primary object of the amendments in the Constitution is to ensure elections to local bodies as and when due and to avoid supersession of local self Government. The provisions also emphasis timely elections in case of dissolution of' such bodies .

14. According to Mr. Vakharia, Chapter IXA of the Constitution prescribes the duration of every municipality of five years from the date of its first meeting. He urged that by using two expressions 'shall continue for five years from the date appointed for its first meeting' and 'and no longer' Parliament has clearly mandated that every municipality will function for a fixed period of five years and no more. In Rasiklal Acharya, the Court was called upon to consider the second point. The court held that it was not open to the authorities to prolong democratic process and it was incumbent on them to hold elections. The instant case is of a converse nature. He urged that a duly elected municipality cannot be dissolved on any ground whatsoever and it will have to be allowed to complete its term of five years. Section 263 of the Act, which enables the State Government to dissolve a Municipality, inter alia, on the grounds that it is not competent to perform its duties, or deliberately makes default in performance of duties, or exceeds or abuses its powers is not in consonance with Article 243U of the Constitution and must be held ultra vires and unconstitutional.

15. We are unable to uphold the said argument. Looking to the phraseology used in Article 243U, it is clear to us that the said provision saves the power of competent Legislature of dissolution of a municipality in accordance with law. It is clear from the language of Article 243U which states that every municipality shall continue for five years from the date appointed for its first meeting 'unless sooner dissolved under any lawfor the time being in force.' It was no doubt contended that the expression 'unless sooner dissolved under any law for the time being in force' would not apply to a municipality which has come into power after the expiration of one year from the date of commencement of the Constitution (Seventy-fourth Amendment) Act, 1992 as mentioned in Article 243ZF. In our considered opinion, however, the language of Article 243U is clear and unambiguous. It applies to all municipalities. Article 243ZF on the other hand, is a transitory provision for continuance of existing laws and municipalities. It, therefore, cannot successfully be contended that the provisions of Article 243U would not apply to the present case. The legal position, in our view, is that ordinarily a municipality shall continue for five years from the date appointed for its first meeting, unless sooner dissolved 'under any law for the time being in force'. Reading Article 243U, it can be said that if a municipality has come into existence in accordance with law, it must be allowed to complete its statutory term of five years, provided it is not subject to dissolution sooner under any law for the time being in force There is a further safeguard in the nature of Proviso to Clause (1) of Article 243U which enacts that before a municipality is dissolved, it shall be afforded a reasonable opportunity of being heard. From the conjoint reading of Article 243U of the Constitution and Section 263 of the Act, it is amply clear that normally every municipality must be allowed to complete its term of five years. Section 263 of the Act, however, authorises the State Government to take an appropriate action of dissolution on the grounds mentioned therein. Before taking such action, a municipality must be given reasonable opportunity of being heard. A bald assertion by the learned Counsel for the petitioners that there should be no dissolution of municipality notwithstanding misfeasance, nonfeasance, breach of duties imposed by a statute or failure to perform statutory obligations cannot be countenanced by a Court of law in any legal system governed by Rule of Law. Such a view, in our judgment, Is neither favoured by the Legislature under Section 263 of the Act nor by Parliament under Article 243U of the Constitution.

16. In view of the insertion of Chapter IXA by the Constitution (Seventy-fourth Amendment) Act, 1992, statutory provisions required amendments. Accordingly, Sections 263 and 263A needed reconsideration. Section 263A, added by Gujarat Act 2 of 1993, authorised State Government to appoint officer to perform the duties of municipality when elections could not be held. As Article 243U prescribed the outer limit of the municipality and provided that no municipality shall continue for more than five years, Section 263A could not remain on the statute book. Accordingly, by the Amendment Act 17 of 1993, it was deleted. Section 263(1) which provided for dissolution as well as supersession was liable to alteration as no provision regarding supersession found place in Article 243U. The said article speaks only of dissolution. The Legislature, therefore, amended Section 263 by deleting that part which dealt with supersession of a municipality in certain situation.

17. Mr. Vakharia submitted that though the Legislature has amended Section 263 in a manner so as to make it consistent with the provisions of An. 243U of the Constitution, in substance and in reality, the power which could be exercised by the State Government for superseding a municipality has been retained for dissolution of municipality which was not permissible. According to him, therefore, the provisions of Section 263 offends Article 243U should be declared unconstitutional and ultra vires. In this connection, our attention, was invited by the learned Counsel to the word 'dissolution.'

18. In Concise Law Dictionary, the expression 'dissolution' is defined thus :

'1. DISSOLUTION, in general, dissolving; a break up; destroying.

The relaxation of any, time bond or binding power; the breaking up of any constituted body of persons.

AS APPLIED TO CONTRACTS, the annulling of a contract by relieving the parties of its provisions.

AS APPLIED TO CORPORATIONS, the extinguishment of its existence in the manner prescribed by law.

AS APPLIED TO MARRIAGES, a divorce.

IN COURT PRACTICE, rendering a legal proceeding null, abrogating or revoking it; unlosing its binding force.

2. Dissolution, prorogation and adjournment. Dissolution puts an end to the life of the House of People or the Legislative Assembly and general election are required to reconstitute them. Prorogation means simply an end of the session of the legislature. Adjournment only suspends the sitting of a House (Constitution of India, Articles 85,107, 174 and 196).

3. Under a law. The words 'under a law' signify those cases where the disqualification to stand for election is not to be found in the parliamentary statute itself but is imposed by virtue of power enabling this to be done; in other words, where it is imposed by a law made by a subordinate law making authority. (Constitution of India, Article 19(1)(e)).'

19. Attention of the Court was also invited to a decision of the High Court of Bombay in Chandrakant Chintaman Bhise v. State of Ma-harashtra, AIR 1986 Bom 198. It is not necessary to enter into larger issue at this stage. The only question in our view which requires to be considered is whether after insertion of Article 243U in the Constitution, a Municipality can be dissolved under the provisions of Gujarat Municipalities Act.

20. At the cost of repetition, we may state that the said Article does not in any way put embargo on or prohibit a competent Legislature to make provision for dissolution of a municipality provided that before such action is taken, a municipality is given reasonable opportunity of being heard. Now, whether or not an action of dissolution in a given case is in accordance with law and whether or not a reasonable opportunity of being heard was afforded to the Municipality must be decided in the light of the facts and circumstances of a particular case. But there is, no absence of power on the pan of the State Legislature in enacting such a provision and if a provision regarding dissolution of municipality is found in a statute, such law cannot be declared unconstitutional or ultra vires Article 243U of the Constitution on the ground that under provision, a municipality shall continue for five years from the date appointed for its first meeting. The only interpretation, in our view, in consonance with the provisions of Part IXA would be that a municipality constituted under any law shall continue for five years from the date appointed for its first meeting unless it is dissolved under the provisions of the Gujarat Municipalities Act and before such action is taken, reasonable opportunity of being heard is afforded to the municipality.

21. As we do not find substance in the argument of Mr. Vakharia that blanket or arbitrary powers have been conferred on the State Government by the Legislature under Section 263 of the Act, the provision cannot be held unconstitutional or ultra vires Articles 14, 19 or 21 of the Constitution.

22. The next point which was argued by the learned Counsel for the petitioners was that even if Section 263 is intra vires and constitutional, on the facts and in the circumstances of the case, the notice issued to the petitioner municipality is mala fide and in colourable exercise of powers. We told the learned Counsel that once we are of the view that provisions of Section 263 are intra vires and constitutional, the question whether the action is mala fide or notice is issued in colourable exercise of power can be raised before an appropriate Court taking such matters.

23. Now under the Gujarat High Court Rules, 1993, such matters are to be placed for admission before a single Judge. Chapter I of Part I of the Gujarat High Court Rules provides for jurisdiction of single Judges and Benches of the High Court. Rule 2 states as to the matters to be disposed of by a single Judge. Sub-rule (10) of Rule 2 enacts that application under Article 226 of the Constitution will be placed before a single Judge except 'those where vires of any provision of a statute are challenged'. Thus, ordinarily a petition under Article 226 of the Constitution of India will be placed before a single Judge. Where, however, vires of any provision of a statute is challenged, it will have to be placed before a Division Bench. As already observed by us in the beginning, had validity of the notice alone been challenged, as per the High Court Rules and Roster, the petition would have been placed before a single Judge taking such matters. It was placed before us in view of the challenge to the validity of Section 263 of the Act. Once we hold that the provisions of Section 263 of the Act are intra vires and constitutional, that point stands concluded.

24. Mr. Vakharia conceded this position. He, however, contended that once constitutional Validity of a statutory provision is challenged and the matter is placed before a Division Bench, if the learned Counsel for the petitioner is ready and willing to argue the matter, on merits, the Court has no option but to hear the petition on merits. According to him, if the Counsel for the party gives up challenge to the constitutionality of a statute, it is open to a Division Bench to record that statement and to direct the office to place the matter before a single Judge in the light of the statement made before the Court. But if he is willing to proceed with the matter on merits, the Court cannot direct him to go before a single Judge by refusing to hear other contentions.

25. For this, our attention was invited by the learned Counsel to the provisions of Order 14, Rule 2 of the Code of Civil Procedure, 1908. Sub-rule (1) of Rule 2 declares that 'Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues.' Sub-section (2) enables the Court where issues both of law and of fact arise in the same suit, and in the opinion of the Court the case or part thereof, can be disposed of on an issuing of law only, it may try that issue first, if that issue relates to (a) the jurisdiction of the Court; or (b) a bar to the suit created by the law for the time being in force and postpone settlement of other issues until the preliminary issue is dealt with and decided in accordance with law. According to Mr. Vakharia, in the instant case, the petitioners are prepared to go on with the merits of the matter and have raised other issues and the Court cannot refuse to decide other points.

26. In this connection, the Counsel relied upon a decision of the Division Bench of this Court in Gujarat Working Class Union, Baroda v. State of Gujarat, (1995) GLR 651. In that case, initially vires of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 was challenged. The said challenge was, however, subsequently given up. The question before the Division Bench was whether in the light of giving up of challenge to vires of a statute, the Court could hear the matter. It was contended on behalf of the petitioner that once the challenge was given up, the Court ought to direct the office to place the matter before a single Judge and the Division Bench could not decide other issues. The Court, however, negatived the contention and held that even if the challenge was given up at a subsequent stage, it would nor debar the Court from deciding other points, if in the facts and circumstances of the case, the Court was satisfied that it was a fit case to deal with all other points raised in the petition and to decide them.

27. We fail to see how the ratio laid down in the above case would help the petitioners. It is not the contention of Mr. Shelat that once the challenge to the constitutional validity of Section 263 is given up by the petitioners or the Court to the conclusion that the provision is intra vires, this Court cannot hear the matter. According to him, however, it is in the discretion of the Court whether it would proceed to hear the matter by entering into merits or leave the parties to take appropriate course in accordance with law.

28. In our opinion, the law is fairly well settled. Reading the High Court Rules, the Office was right in placing the matter before us as there was challenge to the constitutional validity of Section 263 of the Act. On that, we have heard the learned counsel for the petitioners at length. We have dealt with all the arguments and in our opinion, it cannot be held that the said section is unconstitutional or inconsistent with the provisions of Article 243U of the Constitution. The next question whether the notice was issued in colourable exercise of power or mala fide obviously depends upon the facts of the case. Neither under Order 14, Rule 2 of the Code of Civil Procedure, nor from the ratio laid down in Gujarat Working Class Union, it can be held that this Court is bound to decide the matter on merits even if it has recorded a finding that Section 263 is constitutional and intra vires. It is no doubt, open to this Court to do so, but in our opinion, ordinarily when such matter under the High Court Rules, requires to be heard by a single Judge, it would be appropriate if it is decided by a single Judge. It may also be remembered that an order passed by a single Judge of this Court is subject to inira Court appeal under Clause 15 of the Letters Patent. If a question is decided by a Division Bench, an aggrieved pany may lose a right of appeal which is otherwise available to him in law. Normally, this Court would not like to exercise the power and decide other issues raised in the petition depriving an aggrieved party of the right of appeal.

29. For the reasons recorded hereinabove, in our opinion, the provisions of Section 263 of the Act cannot be held ultra vires, unconstitutional or violative of Articles 14, 19,21 or 243U of the Constitution and the said challenge must fail. Since we are not entering into the correctness or otherwise of the allegations of the petitioners, we dismiss the petition by observing that it is open to the petitioners to take appropriate proceedings in accordance with law, if they are aggrieved by issuance of notice. We may state that as we have refused to decide that question, as and when such question is raised before an appropriate forum, it will be decided on its own merits, without being influenced in any manner by the observations made by us hereinabove. The petition is accordingly dismissed. No costs.