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Upgrade to Municipal corporation = Section 8-AA(1) of the Act -under Section 3(2) of the Uttar Pradesh Municipal Corporations Act, 1959 (for short ‘the Act’) as applicable in Uttarakhand read with Article 243Q(2) of the Constitution = Principal Secretary Urban Development Department, Government of Uttarakhand has provided an opportunity of hearing to the objectors on their respective objections on 16.07.2011 from 11.00 a.m. to 3.00 p.m. at Kumbh Fair Controlling House, Haridwar and amongst the objectors there were several Municipal Councilors of Haridwar Municipality, namely Dinesh Joshi, Rakesh Prajapati, Yashoda Devi, Leela Devi, Ashok Sharma, Jagdhir Singh, Nikhil Mehta, Idris Ansari, Satya Narayan, Karuna Sharma, Sanjay Sharma, Radhey Krishna, Prabha Ghai and Ram Ahuja. Hence, the appellant, who was the Chairman of the Municipal Council, Haridwar could have also participated in the hearing in support of his objections. We cannot, therefore, find any infirmity in the impugned judgment of the Division Bench of the High Court that an opportunity of hearing was actually given to all persons likely to be affected by the two notifications dated 21.07.2011. 13. At the time of hearing of this appeal, we were inclined to consider the other contention of Mr. Hansaria that the State Government must form an opinion that until the due constitution of the Municipal Corporation for an area, “it is expedient” to dissolve the Municipal Council from a specified date and to direct that all powers, functions and duties of the Corporation shall as from the specified date, be vested in and be exercised, performed and discharged by the Administrator appointed by the State Government in view of the language of sub-section (1) of Section 8-AA of the Act. But we find that this ground was not raised in the Writ Petition before the High Court nor raised in the special leave petition before this Court. We further find that pursuant to the two notifications dated 21.07.2011, the elections to the Municipal Corporation have been notified to be held and completed by 30.04.2013. Hence, even if the appellant succeeds on this point, we cannot direct restoration of the Haridwar Municipality after the constitution of the Municipal Corporation, Haridwar. For these reasons, we refrain from considering this question in this appeal and leave this question open to be decided in some other appropriate case.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40467

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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4835 OF 2013
(Arising out of S.L.P. (C) No. 1889 of 2012)
Kamal Jora … Appellant
Versus
State of Uttarakhand & Anr. …
Respondents
J U D G M E N T
A. K. PATNAIK, J.
Leave granted.
2. This is an appeal by way of special leave under
Article 136 of the Constitution against the judgment dated
21.12.2011 of the Division Bench of the Uttarakhand High
Court in Special Appeal No.289 of 2011.
Facts of the case
3. The relevant facts very briefly are that the appellant
was elected as the Chairman of the Municipal Council,Page 2
2
Haridwar, in May, 2008. When he was functioning as the
Chairman of the Municipal Council, Haridwar a notification
was issued on 20.05.2011 by the Government of
Uttarakhand notifying that the Governor of Uttarakhand in
exercise of powers under Section 3(2) of the Uttar Pradesh
Municipal Corporations Act, 1959 (for short ‘the Act’) as
applicable in Uttarakhand read with Article 243Q(2) of the
Constitution and Section 8-AA of the Act has dissolved the
Municipal Council, Haridwar, and appointed the District
Magistrate, Haridwar, as Administrator for administering
the area of the Municipal Corporation, Haridwar. The
appellant filed Writ Petition No.1031 of 2011 on
20.05.2011 in the High Court of Uttarakhand, challenging
the aforesaid notification mainly on the ground that no
opportunity of hearing was given to the Municipal Council,
Haridwar before the notification was issued and the
learned Single Judge of the High Court who heard the writ
petition held in his order dated 09.06.2011 that the
dissolution of the Municipal Council, Haridwar was done
and the Administrator was appointed to administer the
areas of Municipal Corporation, Haridwar under Section 8-Page 3
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AA of the Act without affording any opportunity of hearing
or a show cause to the Municipal Council and hence the
notification dated 20.05.2011 was in clear violation of the
Constitution of India. By the order dated 09.06.2011, the
learned Single Judge, therefore, allowed the writ petition
and quashed the notification dated 20.05.2011 and
directed the District Magistrate, Haridwar to handover the
charge forthwith to the elected representatives of the
Haridwar Municipality.
4. Aggrieved, the State of Uttarakhand filed Special
Appeal No.104 of 2011 before the Division Bench of the
High Court contending that the upgradation of the
Municipal Council, Haridwar to Municipal Corporation,
Haridwar, was done by the State Government in
accordance with the mandate in Article 243Q of the
Constitution and the dissolution of the Municipal Council,
Haridwar was merely a consequence of such an
upgradation and hence no show cause or opportunity of
hearing was required to be given to the Municipal Council,
Haridwar before the dissolution and before appointment of
an Administrator to administer the areas of the MunicipalPage 4
4
Corporation, Haridwar. The Division Bench of the High
Court in its judgment dated 23.06.2011, however, held
that Section 8-AA of the Act does not provide for
automatic dissolution of the Municipal Council on
upgradation to a Municipal Corporation and since
automatic dissolution of a Municipal Council has not been
provided in the law, an opportunity of hearing should have
been given to the persons likely to be affected by
dissolution of the Municipal Council. The Division Bench of
the High Court, therefore, upheld the order dated
23.06.2011 of the learned Single Judge and dismissed the
appeal but on the prayer of the learned Advocate General
stayed the operation of the order dated 23.06.2011 of the
learned Single Judge for a period of three weeks.
5. Soon after the judgment dated 23.06.2011 of the
Division Bench of the High Court, the Government of
Uttarakhand issued a public notice dated 29.06.2011
stating therein that in the opinion of the State
Government, the small urban area of the Municipal
Council, Haridwar needs to be converted into a larger
urban area and consequently to Municipal Corporation,Page 5
5
Haridwar. By the public notice dated 29.06.2011, the
Chairman and the Councilors of Municipal Council,
Haridwar and the entire public residing in the urban area
of the Municipal Council, Haridwar were invited to give
their objections and suggestions. The public notice dated
29.06.2011 also stated that on 13.07.2011, a hearing
would be conducted by the Principal Secretary, Urban
Department, Government of Uttarakhand between 1.30
p.m. to 4.00 p.m in which persons will be given an
opportunity of personal hearing on their objections and
suggestions and only thereafter the final decision will be
taken by the State Government. By a corrigendum dated
08.07.2011 issued by the State Government, the date of
hearing was altered to 16.07.2011. The appellant filed his
objections before the Director of Urban Development in
July, 2011 and also stated in his objection that he be given
a personal hearing on his objections. Thereafter, on
21.07.2011, the Government of Uttarakhand issued two
notifications. In one notification dated 21.07.2011, it was
stated that the Governor was pleased to notify for overall
development of Haridwar city the conversion of existingPage 6
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smaller urban area into a larger urban area in exercise of
powers under Section 3(2) of the Act read with Article
243Q(2) of the Constitution and to further notify that the
area included in the larger urban area would be the total
of the area of Municipal Corporation, Haridwar. In the
other notification dated 21.07.2011, it was stated that the
Governor has directed under Section 8-AA(1) of the Act
that the existing Municipal Council, Haridwar would stand
dissolved from the date of issuance of the notification and
the District Magistrate, Haridwar be appointed the
Administrator for the administration of the larger urban
area of the Municipal Corporation, Haridwar.
6. Aggrieved by these two notifications dated
21.07.2011, the appellant again filed Writ Petition (C)
No.1533 of 2011, contending that no hearing was granted
to the Municipal Council, Haridwar before the Municipal
Council was dissolved and the Administrator was
appointed for the larger urban area of the Municipal
Corporation and hence the two notifications were liable to
be quashed. The learned Single Judge by his order dated
15.12.2011 allowed the writ petition and quashed the twoPage 7
7
notifications dated 21.07.2011. Aggrieved, the State of
Uttarakhand and the District Magistrate, Haridwar filed
Special Appeal No.289 of 2011 before the Division Bench
of the High Court and the Division Bench of the High Court
held in the impugned judgment dated 21.12.2011 that an
opportunity of being heard was given to all persons who
were interested in the decision making process of the
Municipal Council, Haridwar. By the impugned judgment,
the Division Bench of the High Court therefore allowed the
appeal and set aside the order of the learned Single Judge
and dismissed the writ petition. Aggrieved, the appellant
has filed this appeal.
Contentions of the learned counsel for the parties:
7. Mr. Vijay Hansaria, learned counsel appearing for the
appellant, submitted that under Article 243U(1) of the
Constitution and under Section 10-A of the U.P.
Municipalities Act, 1916, every Municipality has the right
to continue for a period of five years from the date of its
first meeting unless sooner dissolved under any law for
the time being in force. He submitted that the proviso to
Article 243U(1) of the Constitution says that a MunicipalityPage 8
8
shall be given a reasonable opportunity of being heard
before its dissolution. He submitted that the learned
Single Judge of the High Court in his judgment dated
09.06.2011 in Writ Petition No.1031 of 2011 and the
Division Bench of the High Court in its judgment dated
23.06.2011 in Special Appeal No.103 of 2011, therefore,
held that the Municipal Council, Haridwar, was entitled to
an opportunity of hearing before it was dissolved and
before the Administrator was appointed by the notification
dated 20.05.2011. He submitted that after the judgment
of the Division Bench of the High Court on 23.06.2011, the
Government of Uttarakhand invited objections/suggestions
by a public notice dated 29.06.2011, but no hearing was
given to the Municipality and yet the Haridwar Municipality
was again dissolved and an Administrator was appointed
in its place by the impugned notification dated 21.07.2011
of the Government of Uttarakhand.
8. Mr. Hansaria submitted that it is a settled proposition
of law that if a statute conferring power on an authority to
take a decision having civil consequences does not
expressly prohibit a personal hearing before the decisionPage 9
9
is taken, the rule of fair play requires that an opportunity
of personal hearing is afforded to the persons likely to be
affected by the decision. In support of this proposition, he
cited the decisions in Mohinder Singh Gill & Anr. v. The
Chief Election Commissioner, New Delhi & Ors. [(1978) 1
SCC 405], S.L. Kapoor v. Jagmohan & Ors. [(1980) 4 SCC
379] and Swadeshi Cotton Mills v. Union of India [(1981) 1
SCC 664]. He submitted that Section 8-AA of the Act
which empowers the State Government to dissolve a
Municipal Council for the purpose of constituting a
Municipal Corporation in its place does not expressly
prohibit an opportunity of hearing to be given to the
Municipal Council before its dissolution and therefore a
personal hearing to the Municipal Council has to be
granted where the State Government is of the opinion that
the Municipal Council is to be dissolved for the purpose of
constituting a Municipal Corporation in its place.
9. Mr. Hansaria next submitted that it will be clear from
the language of sub-section (1) of Section 8-AA of the Act
that dissolution of a Municipal Council is to take place only
if the State Government is of the opinion that until the duePage 10
10
constitution of the Municipal Corporation for the larger
urban area, “it is expedient” to dissolve the Municipal
Council from a specified date and to direct that all powers,
functions and duties of the Corporation shall as from the
specified date, be vested in and be exercised, performed
and discharged by the Administrator. He submitted that
there is nothing in the notifications dated 21.07.2011 of
the State Government to show that the State Government
formed the opinion that it was expedient to dissolve the
Municipal Council and to appoint the Administrator.
10. In reply, Dr. Abhishek Atrey, learned counsel
appearing for the State of Uttarakhand, on the other hand,
submitted, relying on the counter affidavit filed on behalf
of respondents no. 1 and 2 as well as the order dated
19.07.2011 of the Government of Uttarakhand annexed to
the counter affidavit as Annexure-C-I, that the Division
Bench of the High Court has rightly held in the impugned
judgment that a personal hearing was granted by the
public notice dated 29.06.2011 to all concerned including
the Municipal Council, Haridwar. He cited the decision of
this Court in State of Maharashtra & Ors. v. JalgaonPage 11
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Municipal Council & Ors. [(2003) 9 SCC 731] in which the
notification dated 16.10.2001, as amended by the
notification dated 15.11.2001, dissolving the Jalgaon
Municipal Council was held to satisfy the requirement of
the principles of natural justice. He further submitted that
in the judgment dated 26.02.2010 in Nagar Palika
Parishad & Ors. v. State of U.P. & Ors. (Writ Petition (C)
No.56954 of 2009) the Allahabad High Court has held that
dissolution of a Municipality of a smaller urban area for the
purpose of upgradation to Municipal Corporation of a
larger urban area cannot be termed as dissolution as
envisaged under Article 243U of the Constitution and the
proviso to Article 243U is not violated if no opportunity of
hearing is given to the Municipality before such
dissolution. He submitted that though Special Leave
Petition (C) No.13400 of 2010 was filed against the
aforesaid judgment dated 26.02.2010 of the Allahabad
High Court, this Court dismissed the Special Leave Petition
with costs by order dated 25.08.2010.
Findings of the CourtPage 12
12
11. We have considered the submissions of learned
counsel for the parties and we are of the opinion that the
earlier judgment of the Division Bench of the High Court
dated 23.06.2011 holding that an opportunity of hearing
must be given to persons likely to be affected by
dissolution of the Municipal Council, Haridwar though not
binding on this Court is binding on the parties in Special
Appeal No.104 of 2011 in which the aforesaid judgment
was rendered because of the principle of res judicata. The
State Government of Uttarakhand was the appellant in the
aforesaid Special Appeal No.104 of 2011 and it cannot
therefore now contend that a hearing was not required to
be granted to the Municipal Council, Haridwar, before it
issued the two notifications dated 21.07.2011 dissolving
the Haridwar Municipality and appointing an
Administrator.
12. Hence, the first question that we have to decide is
whether an opportunity of hearing was granted to the
Municipal Council, Haridwar before the two notifications
dated 21.7.2011 were issued dissolving the Haridwar
Municipality and appointing an administrator underPage 13
13
Section 8-AA of the Act. The public notice which was
issued on 29.06.2011 soon after the judgment dated
23.06.2011 of the Division Bench of the High Court in
Special Appeal No.104 of 2011 is extracted hereinbelow:
“Under Section 3 sub-section (2) of Uttar
Pradesh Municipal Corporation Act, 1959
(U.P. Act No.2 of 1959) (as applicable in
the State of Uttarakhand) read with
Article 243 U of Part 2, it is the
considered opinion of the State
Government that smaller Urban Area
Nagar Palika Parishad, Haridwar be
converted into a larger Urban Area and
consequently into a Municipal
Corporation, Haridwar.
In view of the above, the Chairman of
Nagar Palika Parishad, Haridwar, the
councilors of Nagar Palika Parishad,
Haridwar and the entire public who
ordinarily reside in the said area are
invited to give their objections and
suggestions. The written objections and
suggestions should reach the office of
Director, Department of Urban
Development, Uttarakhand 43/6, Mata
Mandir Marg Dharmpur, Dehradun by
11th July 2011. Any suggestion and
objection received after the said notified
date will not be accepted. On the
receipt of the written objections and
suggestions, a hearing would be done
on 13th July 2011 by Principal Secretary,
Urban Development Department,
Government of Uttarakhand in the office
of Director, Department of Urban
Development, Uttarakhand 43/6, MataPage 14
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Mandir Marg, Dharmpur, Dehradun. The
time would be 1.30 P.M. to 4.00 P.M.
During the hearing the persons would
also be given an opportunity of personal
hearing. After receiving such objections
and suggestions and after considering
the same, the final decision to convert
the place into a larger Urban Area will
be taken.”
It will be clear from the aforesaid public notice dated
29.06.2011 issued by the Government of Uttarakhand that
the Chairman of the Haridwar Municipality, the Councilors
of Haridwar Municipality and the entire public who
ordinarily reside in the area were invited to give their
objections and suggestions. It will also be clear from the
public notice dated 29.06.2011 extracted above that on
receipt of the written objections and suggestions, a
hearing was to be conducted on 13th July 2011 by Principal
Secretary, Urban Development Department, Government
of Uttarakhand between 1.30 p.m. to 4.00 p.m. and during
the hearing the persons were to be given an opportunity
of personal hearing on the objections. By a subsequent
corrigendum the date of hearing was altered to
16.07.2011. We further find from paragraph 4 of the order
dated 19.07.2011 annexed to the counter affidavit filed onPage 15
15
behalf of respondent Nos. 1 and 2 as Annexure C-I that the
Principal Secretary Urban Development Department,
Government of Uttarakhand has provided an opportunity
of hearing to the objectors on their respective objections
on 16.07.2011 from 11.00 a.m. to 3.00 p.m. at Kumbh Fair
Controlling House, Haridwar and amongst the objectors
there were several Municipal Councilors of Haridwar
Municipality, namely Dinesh Joshi, Rakesh Prajapati,
Yashoda Devi, Leela Devi, Ashok Sharma, Jagdhir Singh,
Nikhil Mehta, Idris Ansari, Satya Narayan, Karuna Sharma,
Sanjay Sharma, Radhey Krishna, Prabha Ghai and Ram
Ahuja. Hence, the appellant, who was the Chairman of the
Municipal Council, Haridwar could have also participated
in the hearing in support of his objections. We cannot,
therefore, find any infirmity in the impugned judgment of
the Division Bench of the High Court that an opportunity of
hearing was actually given to all persons likely to be
affected by the two notifications dated 21.07.2011.
13. At the time of hearing of this appeal, we were
inclined to consider the other contention of Mr. Hansaria
that the State Government must form an opinion that untilPage 16
16
the due constitution of the Municipal Corporation for an
area, “it is expedient” to dissolve the Municipal Council
from a specified date and to direct that all powers,
functions and duties of the Corporation shall as from the
specified date, be vested in and be exercised, performed
and discharged by the Administrator appointed by the
State Government in view of the language of sub-section
(1) of Section 8-AA of the Act. But we find that this ground
was not raised in the Writ Petition before the High Court
nor raised in the special leave petition before this Court.
We further find that pursuant to the two notifications
dated 21.07.2011, the elections to the Municipal
Corporation have been notified to be held and completed
by 30.04.2013. Hence, even if the appellant succeeds on
this point, we cannot direct restoration of the Haridwar
Municipality after the constitution of the Municipal
Corporation, Haridwar. For these reasons, we refrain from
considering this question in this appeal and leave this
question open to be decided in some other appropriate
case.Page 17
17
14. In the result, we do not find any merit in this appeal
and we accordingly dismiss the same, but without costs.
.……………………….J.
(A. K. Patnaik)
………………………..J.
(Gyan Sudha Misra)
New Delhi,
July 01, 2013.

 

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