w w w . L a w y e r S e r v i c e s . i n



Neelapala Siva Rama & Others v/s The State of Andhra Pradesh, Rep. by its Principal Secretary, Municipal Administration & Urban Development Department & Others


Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400MH2011PTC300616

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400WB2011PTC166069

Company & Directors' Information:- R K URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U45400MH2011PTC223591

Company & Directors' Information:- AMP URBAN INDIA PRIVATE LIMITED [Active] CIN = U45400WB2011PTC164960

Company & Directors' Information:- A. B. URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U70100MH2015PTC267677

    Writ Petition No. 2738 of 2020

    Decided On, 14 February 2020

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE M. SATYANARAYANA MURTHY

    For the Petitioners: S.V.R. Subrahmanyam, Advocate. For the Respondents: Kasa Jaganmohan Reddy, Special Government Pleader.



Judgment Text

This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:“to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring in issuing G.O.Ms.No.85 Municipal Administration and Urban Development Department (G) dt.28.01.2020 issued by the 1st Respondent consequence of issuance of G.O.Ms.No.261 by the 2nd Respondent herein merging Velugubanda and Chakradwarabandam Villages into the Rajamahendravaram Municipal Corporation as illegal, arbitrary, highhanded without following the prescribed procedure and in violation of the provisions of Constitution of India, consequently, direct the Respondents to retain the status of Velugubanda and Chakradwarabandam as Gram Panchayats.”The prayer was amended as per orders in I.A.No.02 of 2020, which is as follows:“to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus directing the Respondents to retain the status of Velugubanda and Chakradwarabandam Villages as Gram Panchayats by conducting Panchayat Elections along with other Panchayats in the State of Andhra Pradesh as per schedule, without merging them in Rajahmundry Municipal Corporation, by declaring G.O.Ms.No.85, MH & UD Department, dt.28.01.2020 issued by the 1st Respondent, by declaring G.O.Ms.No.261, PR & RD (E & R) Department, dt.28.01.2020 issued by the 2nd Respondent as a legal arbitrary, highhanded, unilateral without following AP Gram Panchayats (declaration of Villages) Rules 2007 and in violation of provisions under Constitution of India”Virtually, the original relief claimed in the petition and amended relief is almost identical, as such, I.A.No.02 of 2020 was allowed by this Court as it was not opposed by the respondents.The petitioners are the residents of Chakradwarabandam and Velugubanda villages. The G.O.Ms.No.85, Municipal Administration and Urban Development (G) Department dated 28.01.2020 and G.O.Ms.No.261 Panchayat Raj and Rural Development (E & R) Department dated 28.01.2020 were issued to expand the limits of respondent No.7 – The Rajamahendravaram Municipal Corporation. To expand the limits of respondent No.7 – Municipal Corporation, the Government took steps by merging some villages into respondent No.7 – Municipal Corporation. But to alter the limits of larger Urban area either by inclusion of any area or exclusion therefrom, the procedure prescribed under sub-sections (3) and (4) of Section 3 of the Greater Hyderabad Municipal Corporation Act has to be followed strictly.Earlier, challenging the G.O.Ms.No.44, dated 04.03.2014, a writ petition by way of PIL No.79/2014 was filed. When the respondents proposed to take over the records of 21 Gram Panchayats, a Writ Petition No.3489 of 2015 was filed. Upon hearing both the petitions, this Court noted that a special procedure is prescribed under Rules 8, 9, 10 and 12 of the Andhra Pradesh Gram Panchayat (declaration of Villages) Rules and found that the respondents did not follow the procedure prescribed under the Rules referred above. This Court allowed both the petitions vide common order dated 01.10.2019. However, liberty is given to the Government to take action for merger of Gram Panchayat into Municipal Corporation, afresh, strictly adhering to the provisions of A.P.Gram Panchayat (declaration of Villages) Rules.Respondent No.5 herein instructed respondent Nos.6 and 7 to take action for merger of 21 villages into Rajamahendravaram Municipal Corporation vide his REV-HSEC/661/2019-JA (H6) – CLO-EG. Respondent No.8 conducted Grama Sabha on 06.12.2019 at 02.00 p.m., wherein all the villagers unanimously rejected the proposal of merger of Gram Panchayat into Rajamahendravaram Municipal Corporation. Thereupon, respondent No.4 issued memo No.1040636/CPR & RD/D1/2019-2, dated 09.01.2020 directing the District Panchayat Officer, East Godavari to serve show cause notice to the concerned Gram Panchayats under proper acknowledgement and obtain such resolutions and furnish the same along with his remarks and objections, if any, raised by the panchayats. Neither the Panchayat Secretary nor the Special Officer conducted any Grama Sabha after 09.01.2020 to discuss the issue and to obtain opinion of the Public.A show cause notice was published in Eenadu Telugu Daily on 18.01.2020 whereby respondent No.5 called for objections from people living in the limits of Rajamahendravaram Municipal Corporation and from the people living in concerned 21 villages regarding merger of Panchayats with Rajamahendravaram Municipal Corporation. The people of Chakradwarabandam besides submitting objection to the Rajamahendravaram Municipal Corporation, also sent copy of the objections by register post to respondent No.7.Respondent No.2 issued G.O.Ms.No.261 on 28.01.2020, whereby decided to merge 21 Gram Panchayats namely (1) Setellite City, (2) Katheru, (3) Namavaram, (4) Gadala, (5) Burugupudi, (6) Madhurapudi, (7) Nidigatla, (8) Lalacheruvu, (9) Pidimgoyyi, (10) Kolamuru, (11) Bommuru, (12) Dowlaiswaram, (13) Hukumpeta, (14) Rajavolu, (15) Thorredu, (16) Venkatanagaram, (17) Diwencheruvu, (18) Palacherla, (19) Velugubanda, (20) Chakradwarabandam and (21) Vemagiri into the limits of Rajamahendravaram Municipal Corporation, East Godavari District and thereby cancelled the notification, by which the aforesaid villages are de-notified as Gram Panchayats with immediate effect in order to enable their merger into the limits of Rajamahendravaram Municipal Corporation in East Godavari District.Respondent No.1 also issued G.O.Ms.No.85 dated 28.01.2020 de-notifying the 21 Gram Panchayats for inclusion of the said villages into the limits of Rajamahendravaram Municipal Corporation and altered the limits of Rajamahendravaram Municipal Corporation by including the 21 Gram Panchayats with immediate effect. While passing the said G.Os., the respondents have not considered the objections raised by the villagers of Velugubanda and Chakradwarabandam of Rajanagaram Mandal, East Godavari District. The special procedure prescribed in A.P. Gram Panchayats (declaration of Villages) Rules, 2007 have not followed by the respondents and without following Section 3 of Greater Hyderabad Municipal Corporation Act, 1955 (for short “G.H.M.C.Act”)The main contention raised in the petition is that the Chakradwarabandam and Velugubanda villages are separated by Ac.1600.00 cents of reserve forest land; unless and until the reserve forest land is acquired by the Municipal Corporation of Rajamahendravara, the villages could not be merged in the limits of Rajamahendravaram Municipal Corporation. It is further contended that most of the villagers will lose their livelihood if the Gram Panchayat merged with Municipal Corporation as there could not be works under the scheme namely Mahatma Gandhi National Rural Employment Guarantee scheme.It is specifically contended that G.O.Ms.No.85 dated 28.01.2020 for merger of 21 Gram Panchayats into the limits of Rajamahendravaram Municipal Corporation and G.O.Ms.No.261 dated 28.01.2020 de-notifying the 21 Gram Panchayats for merger into Rajamahendravaram Municipal Corporation are totally contrary to the procedure prescribed under the Act and the Andhra Pradesh Gram Panchayat (declaration of Villages) Rules and the Act.Finally, it is contended that the petitioners raised several objections as to the distance to reach Rajamahendravaram Municipal Corporation and also about losing their livelihood under the scheme namely Mahatma Gandhi National Rural Employment Guarantee scheme, but those objections were not considered and the respondents have not followed the procedure while issuing the said G.Os. Hence, the petitioners requested this Court to set aside the said G.Os.The respondents did not file any counter.At the stage of admission, Sri S.V.R.Subrahmanyam, learned counsel for the petitioners, reiterated the contentions urged in the petition and demonstrated as to how the procedure was not complied and at the same time, he has drawn the attention of this Court to the public notice issued by respondent No.7 dated 17.01.2020 calling for objections within 10 days from the date of publication, it was published on 18.01.2020, whereas Government Orders impugned was passed on 28.01.2020 i.e. before completion of time allowed for submission of objections. On this ground also, the petitioner sought to set aside the impugned G.Os.Sri Kasa Jaganmohan Reddy, learned Special Government Pleader for the State contended that no specific procedure is prescribed except Section 3 of the Greater Hyderabad Municipal Corporation Act, 1955 (for short “G.H.M.C.Act”) for inclusion or exclusion of any village in Corporation. G.O.Ms.No.114 MA & UD (G2) Department dated 05.05.2015 and rules framed thereunder have no application to the present case. Apart from that merely because a notice was issued by the Commissioner inviting objections without previous publication prescribed under Section 3 of the G.H.M.C.Act, will not enure any benefit to the petitioners and it is for the Government to decide and merge villages into the Municipal Corporation. Hence, the procedure followed by the Government is in accordance with law and the said G.Os. cannot be set aside.Considering rival contentions, perusing the material available on record, the point that arises for consideration is :Whether the respondents followed the procedure prescribed under Section 3 of the G.H.M.C. Act, Section 3 (2) (f) of Andhra Pradesh Panchayat Raj Act and Andhra Pradesh Gram Panchayat (Declaration of Villages) Rules, in denotifying 21 villages for merger of those villages into the Rajamahendravaram Municipal Corporation, respondent No.7 herein?POINT:G.O.Ms.No.261 Panchayat Raj and Rural Development (E & R) Department dated 28.01.2020 was issued by Panchayat Raj and Rural Development department de-notifying 21 villages by exercising power under Section 3 (2) (f) of the Andhra Pradesh Panchayat Raj Act. The notification in G.O.Ms.No.261 dated 28.01.2020 is as follows:“NOTIFICATIONIn exercise of the powers conferred under clauses (f) of sub-section (2) of section 3 of the Andhra Pradesh Panchayat Raj Act, 1994, (Act 13 of 1994), the Government of Andhra Pradesh hereby cancel the notification, in which the (21) areas / Gram Panchayats, namely 1) Setellite City, 2) Katheru, 3) Namavaram, 4) Gadala, 5) Burugupudi, 6) Madhurapudi, 7) Nidigatla, 8) Lalacheruvu, 9) Pidimgoyyi, 10) Kolamuru, 11) Bommuru, 12) Dowlaiswaram, 13) Hukumpeta, 14) Rajavolu, 15) Thorredu, 16) Venkatanagaram, 17) Diwencheruvu, 18) Palacherla, 19) Velugubanda, 20) Chakradwarabandam and 21) Vemagiri, are declared as Gram Panchayats, with immediate effect in order to enable their merger into the limits of Rajamahendravaram Municipal Corporation, in East Godavari District.”In paragraph Nos.2 and 3 of the said G.O., there is a clear reference about G.O.Ms.No.114 MA & UD (G2) Department, dated 05.05.2015. Therefore, the basis for denotifying 21 Gram Panchayts is the G.O.Ms.No.114 MA & UD (G2) Department dated 05.05.2015, the said G.O.Ms.No.114 dated 05.05.2015 is applicable for merger of Gram Panchayats into Municipalities only, but not applicable for merger into the Municipal Corporations. Section 3 of the G.H.M.C.Act and the Andhra Pradesh Gram Panchayats (Declaration of Villages) Rules, 2007 (Rules, 2007) framed by G.O.Ms.No. 542, Panchayat Raj and Rural Development (Parts IV) dated 3.12.2007 have to be followed for denotifying the Gram Panchayats and for inclusion of those villages in the Municipal Corporation. For the reasons best known to respondent No.2, blindly, even without applying mind, referred G.O.Ms.No.114 MA & UD (G2) Department, dated 05.05.2015 in G.O.Ms.No.261 dated 28.01.2020.Sri Kasa Jaganmohan Reddy, learned Special Government Pleader for the State, with great of sense of responsibility supported the irresponsible acts of the respondent Nos.1, 2 and 7 and fairely conceded that the G.O.Ms.No.114 dated 05.05.2015 has no application for denotification and merger of villages into Municipal Corporation. The said G.O. prescribes the procedure for merger of Gram Panchayats into Municipality. Hence, it is an undisputed fact that G.O.Ms.No.114 MA & UD (G2) Department, dated 05.05.2015 has no application to the present facts of the case. Still, respondent No.2 based on the G.O.Ms.No.114 MA & UD (G2) Department, dated 05.05.2015 issued G.O.Ms.No.261 dated 28.01.2020 denotifying 21 Gram Panchayats for merger into respondent No.7 – municipal corporation. On this ground alone, G.O.Ms.No.261 dated 28.01.2020 is liable to be struck down.Sri S.V.R.Subrahmanyam, learned counsel for the petitioners, contended that the G.O.Ms.No.85 dated 28.01.2020 was not passed strictly adhering to the procedure. Refuting this contention, Sri Kasa Jaganmohan Reddy, learned Special Government Pleader, on behalf of learned Government Pleader for Municipal Administration, vehemently contended that no specific procedure is prescribed for merger of Gram panchayats in the Municipal Corporation except the procedure prescribed under Section 3 of the G.H.M.C. Act, which the respondents followed in its letter and spirit, consequently the G.Os. cannot be struck down.No doubt, there is any amount of force in the argument advanced by the learned Special Government Pleader in view of his contention. It is appropriate to extract Section 3 of the G.H.M.C. Act for better appreciation since Section 3 deals with Constitution of Municipal Corporation.“[3.Constitution of Corporation:(1) There shall be established a Municipal Corporation for the City of Greater Hyderabad with effect from the date of notification under subsection (3):Provided nothing in this sub-section shall prevent the Government form establishing, with a view to secure efficiency and economy in the Municipal administration, a single Corporation for Greater Hyderabad on such terms and conditions as may be specified in the notification published in the Andhra Pradesh Gazette in this behalf.(2) The Corporation established under sub-section (1) shall be a body corporate by the name of Greater Hyderabad Municipal Corporation and shall have perpetual succession and a common seal, and subject to any restrictions or qualifications imposed by or under this Act, or any other law, shall be vested with the capacity of suing or being sued in its corporate name, of acquiring, holding and transferring property, of entering into contracts, and of doing all things necessary, proper or expedient for the purposes for which it is constituted.(3) Government may, from time to time, after consultation with the Corporation, by notification in the Andhra Pradesh Gazette, alter the limits of the City as declared under clause (6) of section 2 so as to include therein or to exclude therefrom, the areas specified in the notification.(4) The power to issue a notification under sub-section (3) shall be subject to previous publication”Sub-Section (3) of Section 3 of the G.H.M.C. Act, which is shown in bold italics above, enables the Government from time to time, after consultation with the Corporation, by notification in the Andhra Pradesh Gazette, alter the limits of the City as declared under clause (6) of section 2 so as to include therein or to exclude therefrom, the areas specified in the notification. On its strict construction, limits of Greater Hyderabad Municipal Corporation alone can be changed, by invoking clause (3) of Section 3 of the Act.Sub-Section (4) of Section 3 of the G.H.M.C. Act says that the power to issue a notification under Sub-Section (3) shall be subject to “previous publication.” Thus, there is no ambiguity on the power of the Government to alter the limits of City. Though the said section is with reference to Hyderabad Municipal Corporation, the same procedure is applicable to the other Corporations. When the power under sub-section (3) of Section 3 is subject to sub-section (4), there must be a previous publication. There is no definition in the entire Act to the word ‘previous publication’.The power conferred on the Government by Section 3 of the Act is in the nature of conditional legislation. The legislature already passed the Act, but conferred power on the Government to alter the limits of the city by exercising power under sub-section (3) of Section 3 of the Act. As per sub-section (4) of Section 3 of the Act, previous publication is to be made. Though the power is actually vested on the Government, still issuance of draft notification inviting objections and considering all objections is the intention of previous publication as mandated under sub-section (4) of Section 3 of the Act. Thus, prior or previous publication shall be issued before final notification; it is in the nature of conditional legislation.The word “conditional legislation” has its wider meaning. In the case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation, some portion of the legislative power of the Legislature is delegated to the outside authority in that, the Legislature, though competent to perform both the essential and ancillary legislative functions, performs only the former and parts with the latter, i.e., the ancillary function of laying down details in favour of another for executing the policy of the State.In “Sardar Inder Singh v. State of Rajasthan (AIR 1957 SC 510)” the Apex Court held that when an appropriate Legislature enacts a law and authorizes an outside authority to bring it into force in such area or at such time as it may decide, that is conditional and not delegated legislation. Following the above judgment, the Apex Court in “State of T.N. v. K Sabanayagam (AIR 1998 SC 344)” drawn the distinction between delegated legislation and conditional legislation. There is long line of judgments on this issue from “The Queen v. Burah, [(1978) 3 App Cas 889]”; “Russel v. The Queen, [(1882) 7 App Cas 829, 835]”; “King Emperor v. Benoarilal Sarma, [(1944) 72 Ind App 57]”. In the instant case on hand, power is delegated to the Government to change the limits of the City by exercising power under sub-section (3) of Section 3 of the Act and such power is hedged by sub-section (4) of Section 3 of the Act. Therefore, the power conferred on the Government is in the nature of conditional legislation.By exercising power under sub-section (3) of Section 3 of the Act, the State can alter the limits of city. It is subject to issue a draft notification as to change of city limits, calling for objections within the specified time, on considering those objections, final notification can be issued. But this procedure is not specified in the Act, in the absence of any procedure prescribed under the Act regarding prior publication as mandated in sub-section (4) of Section 3 of the Act, the Government has to fall back on the procedure prescribed under Section 7 of the A.P.General Clauses Act.Section 7 of the A.P.General Clauses Act, 1891 is as follows:“7. Provisions regulating the making of rules after previous publication:.- Where, by an Act to which this Chapter applies, a power to make rules is expressed to be given, subject to the condition of the rules being made after previous publication, the following provisions shall apply, namely:(a) Publication of draft rules:. - The authority having the power to make the rules shall, before making them, publish a draft of the proposed rules;(b) Manner of publication:. - The publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the [Central Government or, as the case may be, the [State] Government] prescribes;(c) Notice to accompany draft rules:. - There shall be published with the draft a notice specifying a date at or after which the draft will be taken into consideration;(d) Consideration of suggestion in regard to draft rules:. - The authority having power to make the rules, and, where the rules are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules from any person with respect to the draft, before the date so specified:(e) Publication to be proof of due making of rules:. - The publication in the [Official Gazette] of a rule purporting to have been made in exercise of a power to make rule after previous publication, shall be conclusive proof that the rule has been duly made.”Publication of the draft in the Gazette; with the draft notification or notice shall accompany specifying a date after which the draft will be taken up for consideration. Consideration of suggestions or objections by the authority having power to make the rule or order, publication of the final rule or order in the official Gazette. This procedure affords an opportunity to the persons to submit suggestions or objections. This is a general procedure applicable to make rules or order by “previous publication”. But in the matter of altering the limits of a corporation, the procedure laid down by Section 3 of the G.H.M.C. Act shall be strictly adhered to.Turning to facts of the case, such previous publication as mandated under sub-section (4) of Section 3 of G.H.M.C. Act was not issued publishing draft notification, calling for objections from the general public etc., following the procedure referred above, under Section 7 of the A.P.General Clauses Act. But for one reason or the other, the Commissioner of Rajamahendravaram issued notification dated 17.01.2020 by exercising power conferred on him by G.O.Ms.No.114 dated 05.05.2015 based on Rule 12, called for objections from 21 villages proposed to be merged into respondent No.7 – Municipal Corporation within 10 days from the publication of such notice. Sri Kasa Jaganmohan Reddy, learned Special Government Pleader for the State, contended that such show cause notice was issued in ignorance of Section 3 of the G.H.M.C. Act since the G.O. referred in the show-cause i.e. G.O.Ms.No.114 is applicable to Municipalities only but not to the Municipal Corporations. Even assuming for a moment that the notification was issued by the Commissioner of respondent No.7 in ignorance of law, still it is the obligation of the Government to issue “previous publication” of order in draft, calling for objections etc., by following Section 7 of the A.P.General Clauses Act, as mandated under sub-section (4) of Section 3 of the G.H.M.C. Act, but no such procedure is followed till date.Assuming for a moment that show-cause notice was issued on 17.01.2020, which was published on 18.01.2020 in Eenadu telugu daily, for issuing G.O. as prior publication, respondent No.1 has to wait till expiry of 10 days from the date of publication of the notice since the notification by the Commissioner of respondent No.7 is deemed to have been issued only when it is published as knowledge about the notification is not attributable to the citizens of 21 villages proposed to be merged into the Municipal Corporation till such publication. Therefore, without waiting for 10 days prescribed in the show-cause notice, notification in G.O.Ms.85 dated 28.01.2020, impugned in the writ petition, was issued.Issue of G.O.Ms.No.85 dated 28.01.2020 without previous publication as mandated under sub-section (4) of Section 3 of G.H.M.C.Act is a grave irregularity, which vitiates the entire procedure followed by respondent Nos.1,2 and 7 in issuing the notifications for merger of 21 villages in Rajamahendravaram Municipal Corporation.An identical question as to prior publication of notification changing limits of the city under the U.P.Town Areas Act, 1914 came up for consideration before the Apex Court in “Tulsipur Surgar Co.Ltd. v. The Notified Area Committee, Tulsipur (1980) 2 SCC 295)”. In the said judgment, the Apex Court had an occasion to deal with the legality of change of limits of Tulsipur town in Uttar Pradesh. By the Notification bearing No. 1853-IX-86 T-51 dated December 22, 1955 was issued by the Governor of Uttar Pradesh under Section 3 of the Act, the limits of the Tulsipur Town Area were extended so as to bring within its limits the village of Shitlapur. Thus, the sugar factory, which is in Shitlapur, brought within the limits of Tulsipur Town Area Committee.Section 3 of the U.P.Town Areas Act, 1914 is almost identical to Section 3 of the Act. Therefore, the principle laid down in the above judgment can be applied to the present facts of the case to the minimum extent. In the facts of the above judgment, the Apex Court held that Section 3 of the U.P.Town Areas Act, 1914 is a conditional legislation. The power of the State Government to make a declaration under Section 3 of the Act is legislative in character because the application of the rest of the provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration, Section 3 of the Act is in the nature of a conditional legislation. The maxim 'audi alteram partem' does not become applicable to the case by necessary implication. Section 3 of the Act does not require the State Government to make such declaration after giving notice of it intention so to do to the members of the public and inviting their representations regarding such action based on the principle 'audi alteram partem'.Legislation may be conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the legislature to an external authority. Legislature may provide that the local application of the provision of the statute is to be determined by the judgment of a local administrative body as to its necessity. An incomplete legislation leaving on an external authority to enlarge the area within which a law actually in operation is to be applied is a conditional legislation. Such legislation comes under a separate category being different from the delegated legislation. A notification issued under Section 3 of the Act which has the effect of making the Act applicable to a geographical area is in the nature of a conditional legislation and it cannot be characterised as a piece of subordinate legislation. The State Government is, therefore, not bound to follow the same procedure which was applicable to the promulgation of rules under Section 39. It is not possible to equate a declaration to be made under Section 3 with rules made under Section 39. Subsection (3) of Section 39 of the Act does not in terms apply to a declaration to be made under Section 3 of the Act. Finally, the Apex Court held as follows:“The Act does not provide that the State Government should give previous publicity to its proposal to declare any area as a town area and should make such declaration after taking into consideration any representation or objection filed in that behalf by the members of the public. It is not in dispute that no such previous publication was made in the instant case. The contention of the plaintiff is that even though the statute does not expressly require such previous publication and consideration of representations and objections made to the proposal to declare any area as a town area since a declaration of any area as a town area involves certain civil consequences such as the obligations arising from the implementation of the provisions of the Act in that area, we should hold that the exercise of the power of the State Government under Section 3 of the Act by necessary implication imposes a duly on the State Government to follow the principles of natural justice i.e. to give publicity to its proposal to declare any area as a town area and to decide the question whether any declaration under Section 3 of the Act should be made or not after taking into consideration the representations or objections submitted by the members of the public in that regard and failure to comply with such procedure would invalidate any declaration made under Section 3. The above contention is based on the assumption that the duty imposed on the State Government is in the nature of an administrative power in the exercise of which the State Government should follow the principles of natural justice.The solution to the question raised before us principally depends upon the nature of the function that is performed by the State Government under Section 3 of the Act. If that function is judicial or quasi-judicial involving adjudication of the rights of any person resulting in civil consequences, it no doubt becomes necessary to follow the maxim audi alteram partem (hear the other side) before taking a decision. It is also true that in order to establish that a duty to act judicially applies to the performance of a particular function, it is no longer necessary to show that the function is analytically of a judicial character or involves the determination of a Us inter panes', though a presumption that natural justice must be observed will arise more readily where there is an express duty to decide only after conducting a hearing or inquiry or where the decision is one entailing the determination of disputed questions of law and fact. Prima facie, moreover, a duty to act judicially will arise in the exercise of a power to deprive a person of his livelihood or of his legal status where the status is not merely terminable at pleasure, or to deprive a person of liberty or property rights or another legitimate interest or expectation, or to impose a penalty on him; though the conferment of a wide discretionary power exercisable in the public interest may be indicative of the absence of an obligation to act judicially. Where a discretionary power to encroach upon individual rights is exercised, the factors pointing to whether it must be exercised judicially include the nature of the interests to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any, involved. Exceptionally, a duty to act judicially may arise in the course of exercising a function not culminating in a binding decision, if the wording of the grant of powers or the context indicates that a fair hearing ought to be extended to persons likely to be prejudicially affected by an investigation or recommendation. (Halsbury's Laws of England, Vol. I, Fourth Edition, Para 65 at p. 77).There is a slight distinction between Section 3 of the U.P.Town Areas Act, 1914 and Section 3 of the G.H.M.C.Act. The difference is that the power under Section 3 of the U.P.Town Areas Act is not subject to prior publication as mandated under sub-section (4) of the Section 3 of the G.H.M.C.Act. Therefore, the Apex Court concluded in the said judgment that when State extended the limits of the City by following the procedure under Section 3 of the U.P.Town Areas Act, upheld the notification extending the city limits.In the present facts of the case, the power conferred on the State has to be exercised in the manner prescribed under the Act while extending the city limits. Therefore, prior publication is mandatory as prescribed under sub-section (4) of Section 3 of the Act. In the present case, no prior publication was made following the procedure prescribed under Section 7 of the General Clauses Act, which I extracted in the earlier paragraphs, on this ground alone the impugned notifications are liable to be set aside.In “The Municipal Corporation, Bhopal v. Misbahul Hasan (1972) 1 SCC 696)” the Apex Court considered the power of municipal corporation to amend the bye-law with reference to Section 432 of the Madhya Municipal Corporations Act. While considering the power of the Government for modification or repeal of bye-laws exercising power under Section 432 of the Madhya Pradesh Municipal Corporations Act, the Apex Court concluded that modification of the age of retirement could be made by a rule under Section 433 of the said Act and not merely by a bye-law, as contemplated by the Act and that the condition precedent for an amendment of a rule has not been followed. Section 433 of the Madhya Pradesh Municipal Corporations Act indicates “the State Government may after previous publication in the Gazette make rules for the purpose of carrying into effect the provisions of this Act”. The said provision is almost identical to sub-section (3) and (4) of Section 3 of the G.H.M.C. Act.The Supreme Court adverted to Section 24 of the Madhya Pradesh General Clauses Act, which is similar to Section 7 of the A.P.General Clauses Act, observed that the procedure envisaged by Section 24 of the Madhya Pradesh General Clauses Act (equivalent to Section 7 of the A.P.General Clauses Act), is in consonance with notions of justice and fair play as it would enble persons likely to be affected to be informed so that they may take such steps as may be open to them to have the wisdom of a proposal duly debated and considered before it becomes law. This mandatory procedure was not shown to have been complied with here, which results in vitiation of notification as the same was issued without prior publication.In “Sundarjas Kanyalal Bhatija v. Collector, Thane, Maharashtra5” a similar question with regard to formation of Kalyan Corporation" merging Municipal areas of Kalyan, Ambarnath, Dombivali and Ulhasnagar was challenged before the Court, later the matter reached the Supreme Court. Initially, objection raised therein was non-compliance of sub-section (4) of Section 3 of the Bombay Municipal Corporation Act, 1949, which is in pari materia with Section 3 of the G.H.M.C.Act. But in the facts of the case, the contention of the respondent was that a preliminary notification was issued as contemplated by Sub-section (4) Section 3 of the Act; the objections and suggestions made by various people were duly considered by the State, thereafter final notification was issued. In the very nature of things there is bound to be difference and variance between the preliminary notification and the final notification. Only because the Ulhasnagar Municipal Council is excluded from the final notification, it cannot be said that there was any major departure from the preliminary notification or it was necessary to issue a preliminary notification over again before the final notification was issued in that behalf. During hearing, learned counsel urged that the State has a wide discretion in the selection of areas for constituting the Corporation and the Court cannot interfere with such discretion. The Court has no jurisdiction to examine the validity of the reason that goes into the decision of the Government. The power to constitute Municipal Corporations under Section 3 of the Act is legislative in character and it is an extension of legislative process for which rules of natural justice have no application and that the 5 (1989) 3 SCC 396 Government in the instant case has complied with the statutory requirements and it was not expected to do anything more in the premises. And, at any rate, it is wholly unnecessary according to the counsel to go through that exercise again as the High Court has suggested. Considering the said argument, noting the principle laid down in “Tulsipur Surgar Co.Ltd. v. The Notified Area Committee, Tulsipur” (referred supra) the Apex Court concluded that the power of the State Government to make a declaration under Section 3 of the Act is legislative in character because the application of the rest of provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration and Section 3 of the Act is in the nature of a conditional legislation.In “Baldev Singh v. State of Himachal Pradesh (AIR 1987 SC 1239)” a similar question arose for consideration. An attempt was made to constitute a notified area as provided under Section 256 of the Himachal Pradesh Municipal Corporation Act, 1968, by including portions of the four villages for such purposes. The residents of the villages who were mostly agriculturists challenged the validity of the notification before the High Court on the ground that they had no opportunity to have their say against that notification. The High Court summarily dismissed the writ petition. In the appeal before the Apex Court, it was argued that the extension of notified area over the Gram Panchayat limits would involve civil consequences and therefore, it was necessary that persons who would be affected thereby ought to be given an opportunity of being heard. Ranganath Misra, J., did not accept that contention, but clarified (at 515):“We accept the submission on behalf of the appellants that before the notified area was constituted in terms of Section 256 of the Act, the people of the locality should have been afforded an opportunity of being heard and the administrative decision by the State Government should have been taken after considering the view of the residents. Denial of such opportunity is not in consonance with the scheme of the rule of law governing our society. We must clarify that the hearing contemplated is not required to be oral and can be by inviting objections and disposing them of in a fair way.The principles and precedents thus enjoin us not to support the view taken by the High Court. We may only observe that the Government is expected to act and must act in a way which would make it consistent with the good administration. It is they, and no one else-who must pass judgment on this matter. We must, therefore, leave it to the Government.”In “Ramakrishna Vivekananda Mission v. State of West Bengal (2005) 9 SCC 53)” amendment to special Rules under Rule 33 framed under the West Bengal Board of Secondary Education Act, 1963 (for short, 'the Act') and its publication in Official Gazette was challenged before the Court. The Apex Court held that the requirement of prior publication is mandatory. The Apex Court further held that the Special Rules have the effect of encroaching upon the rights of the teaching and non-teaching staff in the school. On publication of the draft rules, those affected by the Special Rules are granted opportunity to file objections and suggestions to those rules. Section 24 postulates fixing of date for consideration of draft Rules by the State Government. The objections or suggestions that may be received are required to be considered before taking a decision to publish the rules in official gazette as the said publication is conclusive proof of the rules having been duly made. The Apex Court further held as follows:“In the instant case, effect of the Special Rules is to deprive the teachers of valuable rights under Rule 28(8). Under the said Rule, the decision of the Board on the disciplinary matters is final whereas under the Special Rules, it would be the decision of the Committee which would be final. It is true, as already noticed, that the High Court was informed that the Rules had been approved as recorded in the order dated 1st March, 1994 in Writ Petition No. 2041 of 1986. The said order cannot, however, adversely affect the teachers here, particularly, when the private respondents (teachers) were not parties in those proceedings and also when the law was not followed insofar as the previous publication was concerned. We are unable to accept the contention that there was sufficient and enough publication of the Special Rules. There has to be strict compliance of the provision regarding previous publication as it vitally affects the teaching and non-teaching staff which has a valuable right to object to the Special Rules when its draft is published. The teaching class can put forth its view point and give suggestions to the State Government on publication of the draft Rules. Admittedly, nothing of the kind was

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done, it cannot be held that valid Special Rules came to be made only because of orders dated 1st March, 1994. In the absence of Special Rules, 1969 Rules would continue to apply and prevail.”In view of the law declared by the Apex Court in the judgments referred above, when a specific procedure is prescribed for extension of limits of Municipal Corporation under Section 3 of the G.H.M.C.Act, which is applicable to Rajamahendravaram Municipal Corporation, the State has to adhere to the procedure prescribed under sub-section (4) of Section 3 of the Act. In the absence of prior/previous publication, the villagers of 21 villages proposed to be merged, will lose their opportunity of expressing their grievance as to the merger of their villages. In the instant case, there is absolutely no previous publication i.e. draft G.O. inviting objections from the public. Therefore, non-compliance of requirement of previous publication as laid down in Section 3 (4) of the G.H.M.C. Act and Section 7 of the A.P.General Clauses Act vitiates the entire process of issuing G.O.Ms.No.85 dated 28.01.2020.Though the learned Special Government Pleader contended that in the absence of any specific procedure or guidelines framed for alteration of limits of towns or municipal corporation, it is the power of the Government i.e. State to alter such boundaries of municipal corporation or town simply by issuing notification. But this contention is liable to be rejected for the reason that the power conferred on the State under sub-section (3) of Section 3 of the G.H.M.C. Act is subject to sub-section (4) of Section 3 of the G.H.M.C.Act, which mandates previous publication. In view of the principle laid down in the judgments (referred above), more particularly in “Ramakrishna Vivekananda Mission v. State of West Bengal” and “The Municipal Corporation, Bhopal v. Misbahul Hasan” (referred supra) the impugned G.Os. are liable to be set aside.The Municipal Commissioner of Rajamahendravaram is an officer in the cadre of Central Civil Services, who issued show cause notice dated 17.01.2020. Similarly G.O.Ms.No.261 dated 28.01.2020 was issued by Principal Secretary to Government on behalf of Panchayat Raj and Rural Development Department, who worked as Election Commissioner during previous election also referred to G.O.Ms.No.114 MA and UD (G2) Department dated 05.05.2015 in various paragraphs of G.O., denotified 21 villages for merger of those villages in Rajamahendravaram Municipal Corporation, East Godavari District. The officer in the cadre of Principal Secretary to Government having worked as Election Commissioner of the State during previous elections for the Assembly and Parliament, is not expected to pass such G.O. in ignorance of the previous orders of the Government and law contained in the Statute. The nonchalant action of respondent No.2 and Commissioner of respondent No.7 created any amount of confusion among public of 21 villages proposed to be merged into the Rajamahendravaram Municipal Corporation.The other objections raised by the writ petitioners need no further consideration in view of the discussion referred above and apart from that the stage of election process is also not brought to the notice of this Court during arguments to find out whether this Court can interfere with such notification, at this stage, or not.Sri Kasa Jaganmohan Reddy, learned Special Government Pleader, in support of his contentions relied on “Veddepalli Narsimulu v. Government of Andhra Pradesh (2014 (4) ALT 451)”. As he fairly conceded that the procedure applicable for merger of village into Municipalities prescribed in G.O.Ms.No.114 MA & UD (G2) Department Dated 05.05.2015 is not applicable to Municipal Corporations, this Court need not advert to the principle laid in the said judgment.In view of my foregoing discussion, more particularly, for the failure to adhere to the procedure prescribed in sub-section (4) of Section 3 of the G.H.M.C. Act, the impugned G.Os. are liable to be set aside.The writ petition is allowed declaring the G.O.Ms.No.85, Municipal Administration and Urban Development (G) Department dated 28.01.2020 and G.O.Ms.No.261 Panchayat Raj and Rural Development (E & R) Department dated 28.01.2020 as illegal, consequently the said G.O.Ms.No.85 dated 28.01.2020 and G.O.Ms.No.261 dated 28.01.2020 are hereby set aside. No costs.The miscellaneous petitions pending, if any, shall also stand closed.
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