Gujarat High Court
Dayal Gram Panchayat Through Sarpanch … vs State Of Gujarat on 21 July, 2026
NEUTRAL CITATION
C/SCA/19474/2023 CAV JUDGMENT DATED: 21/07/2026
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Reserved On : 22/04/2026
Pronounced On : 21/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19474 of 2023
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2026
In R/SPECIAL CIVIL APPLICATION NO. 19474 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 1115 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 14809 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 14145 of 2025
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 14145 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 14274 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 14298 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 14298 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 14300 of 2025
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 14300 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 14977 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 15309 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 15574 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 16471 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 758 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2026
In R/SPECIAL CIVIL APPLICATION NO. 758 of 2026
With
R/SPECIAL CIVIL APPLICATION NO. 1224 of 2026
Page 1 of 118
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C/SCA/19474/2023 CAV JUDGMENT DATED: 21/07/2026
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With
R/SPECIAL CIVIL APPLICATION NO. 5138 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
==========================================================
Approved for Reporting Yes No
==========================================================
DAYAL GRAM PANCHAYAT THROUGH SARPANCH RAMESHBHAI
DHULABHAI DAMOR & ORS.
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
SPECIAL CIVIL APPLICATION NO.19474 OF 2023:
MR MIHIR JOSHI, SENIOR ADVOCATE with MR DIPAN
DESAI(2481) for the Petitioner(s) No. 1,2,3,4,5,6,7,8,9
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR GH VIRK
GOVERNMENT PLEADER with MR VINAY BAIRAGRA, AGP with
MS DHARITRI PANCHOLI, AGP with MR JAY BAROT, AGP for the
Respondent(s) No.1-2
MR PRAKASH K JANI with MR PRAVIN P PANCHAL(2059) for the
Respondent(s) No. 3SPECIAL CIVIL APPLICATION NO.1115 OF 2025:
MR HARDIK C RAWAL for Petitioners
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR GH VIRK,
GOVERNMENT PLEADER with MR VINAY BAIRAGRA, AGP with
MS DHARITRI PANCHOLI, AGP with MR JAY BAROT, AGP for the
Respondent(s) No.1
MR DEEPAK SANCHELA for Respondent No.2SPECIAL CIVIL APPLICATION NO.14809 OF 2025:
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MR PRAKASH G PANDYA for Petitioners
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR GH VIRK
GOVERNMENT PLEADER with MR VINAY BAIRAGRA, AGP with
MS DHARITRI PANCHOLI, AGP with MR JAY BAROT, AGP for the
Respondent(s) No.1-2
MR DEEPAK SANCHELA for Respondent No.3SPECIAL CIVIL APPLICATIONS NOS.14145 OF 2025, 14274 OF
2025, 14298 OF 2025 AND 14300 OF 2025:
MR SHALIN MEHTA, SENIOR ADVOCATE with MR N P
CHAUDHARY(3980) for the Petitioners
AISHVARYA(8018) for the Respondent(s) No. 2
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR GH VIRK
GOVERNMENT PLEADER with MR VINAY BAIRAGRA, AGP with
MS DHARITRI PANCHOLI, AGP with MR JAY BAROT, AGP for the
Respondent(s) No. 1,5
MR KAMLESH S KOTAI(6150) for the Respondent(s) No. 3
MR MEHUL SHARAD SHAH(773) for the Respondent(s) No. 4SPECIAL CIVIL APPLICATION NO.14977 OF 2025:
MR HARSH RAVAL for MR SUBODH KUMUD for Petitioner
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR GH VIRK
GOVERNMENT PLEADER with MR VINAY BAIRAGRA, AGP with
MS DHARITRI PANCHOLI, AGP with MR JAY BAROT, AGP for the
Respondent(s) No.1,2,4
MR KAASH THAKKAR for Respondent No.5SPECIAL CIVIL APPLICATION NO.15309 OF 2025:
MR BY MANKAD for the petitioner
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR GH VIRK
GOVERNMENT PLEADER with MR VINAY BAIRAGRA, AGP with
MS DHARITRI PANCHOLI, AGP with MR JAY BAROT, AGP for the
Respondent(s) No.1,3
MR UM SHASTRI for respondent No.4Page 3 of 118
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SPECIAL CIVIL APPLICATION NO.15574 OF 2025:
MR BY MANKAD for the petitioner
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR GH VIRK
GOVERNMENT PLEADER with MR VINAY BAIRAGRA, AGP with
MS DHARITRI PANCHOLI, AGP with MR JAY BAROT, AGP for the
Respondent(s) No.1,2
MR UM SHASTRI for respondent No.3SPECIAL CIVIL APPLICATION NO.16471 OF 2025:
MR BY MANKAD for the petitioner
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR GH VIRK
GOVERNMENT PLEADER with MR VINAY BAIRAGRA, AGP with
MS DHARITRI PANCHOLI, AGP with MR JAY BAROT, AGP for the
Respondent(s) No.1,2
MR UM SHASTRI for respondent No.3SPECIAL CIVIL APPLICATION NO.758 OF 2026:
MR DHAVAL D VYAS, SENIOR ADVOCATE with MR NAMAN
BRAHMBHATT for petitioners
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR GH VIRK
SGOVERNMENT PLEADER with MR VINAY BAIRAGRA, AGP with
MS DHARITRI PANCHOLI, AGP with MR JAY BAROT, AGP for the
Respondent(s) No.1-3,5-6SPECIAL CIVIL APPLICATION NO.1224 OF 2026:
MR PV PATADIA for MS ARTI K BHIL for Petitioners
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR GH VIRK
GOVERNMENT PLEADER with MR VINAY BAIRAGRA, AGP with
MS DHARITRI PANCHOLI, AGP with MR JAY BAROT, AGP for the
Respondent(s) No.1-2,4SPECIAL CIVIL APPLICATION NO.5138 OF 2026:
MR BHARAT T RAO for Petitioners
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR GH VIRK
GOVERNMENT PLEADER with MR VINAY BAIRAGRA, AGP with
MS DHARITRI PANCHOLI, AGP with MR JAY BAROT, AGP for the
Respondent(s) No.1-3Page 4 of 118
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MS BHAVNA D ACHARYA for Respondent No.4
==========================================================CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
COMMON CAV JUDGMENT
[1] Since the entire batch of captioned petitions, having
principal question of law in common, therefore, the same are heard
together and are being decided analogously by this common
judgment and order.
[2] In the captioned petitions, the challenge is to the
Notifications issued by the Urban Development and Urban Housing
Department, State of Gujarat under Article 243Q(2) of the
Constitution of India, merging, inter alia, various village
panchayats either into the Municipalities or in the Municipal
Corporation.
[3] Basic facts of each petition are stated hereinbelow:
SPECIAL CIVIL APPLICATION NO.19474 OF 2023:
[3.1] It is the case of the petitioners that on 30 th October
2014, Godhra Municipality resolved to include the areas of villages
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such as Jafarabad, Vavdi (Buzarg), Chikhodara and Bhamaiya. In
furtherance thereof, the State Government, by Notification dated
13th August 2025, in exercise of powers conferred under Article
243P(d) of the Constitution of India, whereby, the areas of villages
Vavdi (Buzarg), Bhamaiya and Vanakpur Gram Panchayat were
notified within the limits of the Godhra Municipality. The said
Notification dated 30th October 2014 was then challenged before
this Court by way of various Special Civil Applications being Special
Civil Application NO.3740 of 2016, 12426 of 2017 and 12416 of
2016. Those petitions then were dismissed by the Coordinate Bench
of this Court vide judgment and order dated 1 st September 2022.
Assailing the decision, Letters Patent Appeals Nos.1226 of 2022 and
1244 of 2022 were filed. The Division Bench of this Court, vide
judgment and order dated 9th March 2023, allowed the Letters
Patent Appeals holding, inter alia, Article 243P(d) of the
Constitution of India is a defining Article and powers ought to have
been exercised under Article 243Q(2) of the Constitution of India
after following procedure and reasons contemplated under Article
243Q(2) of the Constitution of India.
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[3.2] Again, on 17th October 2023, the State Government has
issued a Notification, in exercise of its powers under Articles
243Q(2) and 243P(d) of the Constitution of India, whereby the
areas of 6 (six) Gram Panchayats namely Govindi, Jafarabad,
Vanakpur, Bhamaiya, Vavdi (Buzarg) are included in the municipal
limits of the Godhra Municipality.
SPECIAL CIVIL APPLICATIONS NOS.15309 OF 2025, 15574 OF
2025 AND 16471 OF 2025:
[4] Challenge in the aforesaid petitions is to the
Notification dated 14th October 2025 issued by the Urban
Development and Urban Housing Department, State of Gujarat, in
exercise of powers, under Articles 243Q(2) with 243P(d) of the
Constitution of India merging, inter alia, the areas of village
Panchayat namely Labhi, Mithapur, Kharediya Gram Panchayat and
Vata Vachhoda Gram Panchayat in the municipal limits of Shehara
Municipality. Pertinently, in the said Notification dated 14th
October 2025, in all 7(seven) Gram Panchayats were merged in the
local limits of the Shehara Municipality, however, except, the
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petitioners, other Gram Panchayats have accepted the Notification
and willingly merged in the local limits of the Shehara
Municipality.
[4.1] It is the case of the petitioners that by way of different
resolutions, all the petitioner’s panchayats have raised their
objections for inclusion in the limits of Shehara Municipality and
representation to that effect was also made to the authorities,
however, without giving any opportunity of hearing or calling of
any documentary evidence, the Notification dated 14th October
2025 was published. Pertinently, in the affidavit-in-reply, the State
Government has produced the details of the resolution passed by
the petitioner’s panchayats showing their willingness and
agreement to be included in the local limits of the Shehara
Municipality and thereby, by way of rejoinder, the case has been
put forth that those resolutions are fake and bogus and signatures
are forged by the Talali-cum-Mantri. It is pertinent to note that the
said so-called forgery came into the knowledge of the petitioners
atleast from 25th February 2026 the date on which the reply was
filed and thereafter, it appears that there is no criminal proceeding
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initiated for the so-called alleged forgery of signatures against any
one.
SPECIAL CIVIL APPLICATION NO.1224 OF 2026:
[5] Challenge in the aforesaid petition is to the Notification
dated 14th October 2025 issued by the Urban Development and
Urban Housing Department, State of Gujarat, in exercise of powers,
under Articles 243Q(2) with 243P(d) of the Constitution of India
merging, inter alia, the areas of village Panchayat namely Variyal
Gram Panchayat into local limits of Shehara Municipality of District
Panchmahal.
SPECIAL CIVIL APPLICATION NO.5138 of 2026:
[6] Challenge in the aforesaid petition is to the Notification
dated 4th October 2025 issued by the Urban Development and
Urban Housing Department, State of Gujarat, in exercise of powers,
under Articles 243Q(2) and 243P(d) of the Constitution of India
merging, inter alia, various village panchayats namely Vega,
Kajapur, Tarsana and Timbi into the local limits of Dabhoi
Nagarpalika. The petitioners are the Ex-Sarpanch of the aforesaid
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village panchayats.
[6.1] The principal grievance raised in the aforesaid petition
is that the said villages are predominantly in rural in nature having
agricultural economy, minimal non-agriculture activity and
majority population belonging to the Scheduled Tribes and other
economic weaker sections and thereby, the impugned Notification
was published without considering objections and without any
meaningful and effective consideration of the Gram Panchayats and
without taking into consideration the parameters enumerated in
the provisions of Article 243Q(2) of the Constitution of India.
SPECIAL CIVIL APPLICATION NO.758 of 2026:
[7] Challenge in the aforesaid petition is to the Notification
dated 15th December 2025 issued by the Urban Development and
Urban Housing Department, State of Gujarat, in exercise of powers,
under Articles 243Q(2) with 243P(d) of the Constitution of India
merging, inter alia, Sahij village panchayat within the local limits of
the Kalol Municipality.
[7.1] Besides, the principal grievance that parameters
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envisaged under the provisions of Article 243Q(2) of the
Constitution of India are not considered objectively and no
meaningful and / or effective consultation was ever undertaken
with the Gram Panchayat, one more grievance voiced in the said
petition is with regard to validity of the Resolution No.47 dated 10th
December 2024 of Sahij Gram Panchayat consenting to the merger
to the Kalol Nagarpalika at the instance of the Administrator and
not by the elected body despite in between the body was duly
constituted and opposed against the merger.
SPECIAL CIVIL APPLICATION NO.1115 of 2025:
[8] Challenge in the aforesaid petition is to the Notification
dated 1st January 2025 issued by the Urban Development and
Urban Housing Department, State of Gujarat, in exercise of powers,
under Articles 243Q(2) with 243P(d) of the Constitution of India
merging, inter alia, in all 6(six) Gram Panchayats within the local
limits of Gandhidham Municipality, now, Gandhidham Municipal
Corporation. Pertinently, out of 6 (six) Gram Panchayats, 4 (four)
Gram Panchayats have accepted the said Notification, however, the
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residents of 2 (two) village panchayats namely Antarjal and Shinay
have approached this Court by way aforesaid petition with the
principal grievance that parameters prescribed under Article
243Q(2) of the Constitution of India are not meaningfully and
effectively considered and thereby, the said Notification under
Article 243Q(2) published without following the statutory
provisions, which ought to have been scrupulously followed.
SPECIAL CIVIL APPLICATION NO.1480 of 2025:
[9] Challenge in the aforesaid petition is to the Notification
dated 25th September 2025 issued by the Urban Development and
Urban Housing Department, State of Gujarat, in exercise of powers,
under Articles 243Q(2) with 243P(d) of the Constitution of India
merging, inter alia, various Gram Panchayats namely Padana,
Chudva, Mithi Rohar, Khari Chehar and Bharapar in the local limits
of Gandhidham Municipal Corporation.
[9.1] Being aggrieved by the aforesaid, the residents of
village Padana have approached this Court with the principal
grievance that the impugned Notification dated 25th September
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2025 was published without following due procedure and
specifically without effective and meaningful consultation of the
Gram Panchayat.
SPECIAL CIVIL APPLICATION NO.14977 of 2025:
[10] Challenge in the aforesaid petition is to the Notification
dated 9th September 2025 issued by the Urban Development and
Urban Housing Department, State of Gujarat, in exercise of powers,
under Articles 243Q(2) with 243P(d) of the Constitution of India
merging, inter alia, Gram Panchayats namely Khalikpur Gram
Panchayat, Sahiyar Gram Panchayat and Sabalpur Group Gram
Panchayat which Palanpur, Sabalpur, Ganeshpur and Bajkot in the
local limits of Modasa Municipality.
[10.1] Being aggrieved by the aforesaid, the Sabalpur
Gram Panchayat has approached this Court by way of aforesaid
petition with the principal grievance that Article 243Q(2) of the
Constitution of India has not been followed in its letter and spirit.
SPECIAL CIVIL APPLICATIONS NOS.14145 of 2025, 14298 OF
2025, 14300 OF 2025 AND 14274 OF 2025:
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[11] Challenge in the aforesaid petition is to the Notification
dated 25th September 2025 issued by the Urban Development and
Urban Housing Department, State of Gujarat, in exercise of powers,
under Articles 243Q(2) with 243P(d) of the Constitution of India
merging, inter alia,10 (Ten) village Gram Panchayats namely
Tavdia, Dela, Ucharpi, Virampura, Detrojpura, Rampura, Kukas,
Rupal (Kukas), Hebuva and Shobhasan within the local limits of
Mahesana Municipal Corporation.
[11.1] Being aggrieved, 4 (four) Gram Panchayats
namely Della, Rampura, Hebuha and Subhasan have approached
this Court by way of aforesaid petition with the principal grievance
that the parameters under Article 243Q(2) of the Constitution of
India were not followed and thereby, there was no meaningful and
effective consultation with the elected body.
[12] All the captioned petitions are pending without any
kind of interim relief, however, considering the common important
and principal questions of law, with the consent and request of
learned advocates appearing for the respective parties, the entire
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batch of these petitions were heard extensively by this Court on
various dates and is being decided by this common judgment.
[12.1] Pertinently, during all these petitions, election
programme was declared on 1st April 2026 and voting was held on
26th April 2026 and thereafter, counting of votes scheduled and
held on 28th April 2026 and final election was concluded on 30th
April 2026. As stated hereinabove, all these petitions were pending
without operation of any kind of interim relief right from its
inception and also in some of the petitions, Civil Applications are
filed subsequently seeking stay of implementation of the respective
Notifications under Article 243Q(2) of the Constitution. Thus, no
sooner the election was published on 1st April 2026, all the learned
advocates appearing for the respective parties have consented for
final hearing of main matters itself and thereby, the captioned
petitions were heard finally on the main reliefs itself.
[13] Heard learned Senior Advocate Mr. Mihir Joshi assisted
by learned advocate Mr. Dipan Desai; learned Senior Advocate Mr.
Shalin Mehta assisted by learned advocate Mr. N. P. Chaudhary;
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learned Senior Advocate Mr. Dhaval Vyas assisted by learned
advocate Mr. Naman Brahmbhatt; learned advocate Mr. Harsh
Raval for learned advocate Mr. Subodh Kumud; learned advocate
Mr. P.V. Patadia for learned advocate Ms. Arti K. Bhill; learned
advocate Mr. Bharat Rao; learned advocate Mr. B. Y. Mankad,
learned advocate Mr. Hardik Raval and learned advocate Prakash
Pandya appearing for their respective petitioners and learned
Advocate General Mr. Kamal Trivedi assisted by learned
Government Pleader Mr. G. H. Virk assisted by learned A.G.Ps. Ms.
Dharitri Pancholi, Mr. Jay Barot, Mr. Vinay Bairagra for the
respective respondents – State authorities; learned Senior Advocate
Mr. Prakash K. Jani assisted by learned advocate Mr. Pravin
Panchal for the respective respondent – Godhra Nagarpalika;
learned advocate Mr. Deepak Sanchela; learned advocate Mr.
Mehul Sharad Shah, learned advocate Mr. Kaash Thakkar, learned
advocate Mr. U. M. Shastri; learned advocate Mr. Kamlesh Kotai,
learned advocate Ms. Aishvarya and learned advocate Ms. Bhavna
D. Acharya appearing for their respective respondents.
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SUBMISSIONS OF LEARNED SENIOR ADVOCATE MR. MIHIR
JOSHI (SPECIAL CIVIL APPLICATION NO.19474 OF 2023):
[14] Learned Senior Advocate Mr. Mihir Joshi assisted by
learned advocate Mr. Dipan Desai for the petitioners, while
assailing the respective impugned Notification under Article
243Q(2) read with Article 243P(d) of the Constitution of India, has
made the following submissions:
[14.1] It is submitted that the impugned Notification is
contrary to the judgment and order dated 9th March 2023 passed by
this Court in Letters Patent Appeal No.1226 of 2022 as it does not
disclose that it has been issued having regard to the factors
prescribed under Article 243Q(2) of the Constitution of India, as
specifically directed by this Court in earlier challenge in connection
with an identical Notification purported to have been issued in
exercise of powers under Article 243P(d) of the Constitution of
India.
[14.2] It is submitted that as such there is no effective
compliance and / or no regard to the factors prescribed under
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Article 243Q(2) of the Constitution of India while issuing the
Notification and thereby, the impugned Notification is legally
defective in nature. It is further submitted that by way of affidavits
filed during the proceedings, such defects cannot be cured.
Because, said affidavits merely reproduced the datas without
disclosure and / or without application of mind as to how such
datas justified the declaration of villages as smaller urban areas. It
is, therefore, fervently submitted that the entire exercise is contrary
to the Article 243Q(2) of the Constitution of India, besides being
manifestly arbitrary, more particularly, when similarly situated
villages have been excluded. Thus, from the entire exercise under
Article 243Q(2) of the Constitution of India, it does not reveal as to
what were the parameters adopted while choosing some of the
villages to be included and some of the villages to be excluded from
merging into the local limits of Municipalities.
[14.3] It was contended that Article 243Q(2) of the
Constitution of India obligates the State to evolve uniform
parameters and thereafter, to consider the constitutional factors in
the light thereof before issuing the Notification. The expression
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“having regard to” necessarily imports due application of mind and
not a mere collection or reproduction of datas.
[14.4] It is submitted that since the entire exercise
undertaken by the respondents before issuing Notification under
Article 243Q(2) of the Constitution of India and the data collected
and relied upon mechanically, the process itself is manifestly
arbitrary and thereby, judicial review of Constitution or a legislative
exercise is permissible when the mandatory constitutional
requirements have not been complied with.
[14.5] It is submitted that requirements and the
parameters, as envisaged under Article 243Q(2) of the Constitution
of India, deserve meaningful consideration. It is submitted that
under Article 243Q(2) of the Constitution, the legislature has, with
a loud intention, prescribed certain parameters to be considered
and further giving liberty to the authorities to consider such other
factors, as may be deemed fit. It is submitted that therefore, it
means that a constitutional mandate is clear that while exercising
powers under Article 243Q(2) of the Constitution of India, the
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authorities have to not only consider the parameters prescribed but
can consider any appropriate parameters or factors so that the
entire exercise of powers will be based on effective and meaningful
process. It is submitted that in the present case, the authorities
have collected the datas only for the purpose to make a show that
effective and meaningful consultation was undertaken, whereas, in
fact, those collection of datas are nothing, but a predetermined
stereotyped procedure adopted by the authorities. Thus, the
Notification of merging Gram Panchayats into the Municipalities,
be it a constitutional or a legislative exercise, is not in accordance
with the mandate of the Constitution of India and thereby, deserves
to be quashed and set aside.
[14.6] To substantiate the aforesaid contentions, learned
Senior Advocate Mr. Joshi has placed heavy reliance on the
decision in the case of Champ Lal vs. State of Rajasthan reported
in (2018) 16 SCC 356, Amarendra Kumar Pandey vs. Union of
India and others reported in (2024) 15 SCC 401 and
Mahalaxmi Sugar Mills Pvt. Ltd. vs. Union of India and others
reported in (2009) 16 SCC 569.
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SUBMISSIONS OF LEARNED ADVOCATE MR. B. Y. MANKAD
(SPECIAL CIVIL APPLICATIONS NOS.15309 OF 2025, 15574 OF
2025 AND 16471 OF 2025):
[15] Learned advocate Mr. B. Y. Mankad for the petitioners,
while assailing the respective impugned Notification under Article
243Q(2) read with Article 243P(d) of the Constitution of India, has
made the following submissions:
[15.1] While raising principal contention with regard to
non-compliance of mandate prescribed under Article 243Q(2) of
the Constitution of India, without having any uniform benchmark
criteria or standard, it was, additionally contended that the entire
exercise undertaken by the authorities on the basis of resolutions
dated 2nd October 2024 and 30th January 2025 itself is fabricated
and it does not bear the genuine signatures of Sarpanch and stated
to have been fabricated by the Talati without knowledge of the
elected body. It is submitted that more particularly, by resolutions
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dated 9th June 2025, 30th January 2025 and 9th February 2025 duly
signed by the elected representatives, the proposed action of
inclusion of Gram Panchayats is objected. Further, the said
representation was not taken into consideration and the impugned
Notification was passed or published on false and fabricated
Notifications dated 2nd October 2024 and 30th January 2025. Thus,
the impugned Notification stands vitiated on the basis of
fundamental resolution purported to have been issued by the Gram
Panchayat consenting inclusion.
[15.2] Before issuance of the impugned Notification
dated 14th October 2025 declaring the petitioner’s village as a part
of smaller urban area of Shahera Municipality, the petitioner’s
Gram Panchayats were not given any opportunity of hearing nor
the petitioners were included in effective and meaningful
consultation process by overlooking the mandate of Article
243Q(2) of the Constitution of India. Therefore, it is prayed to
quash and set aside the impugned Notification.
SUBMISSIONS OF LEARNED ADVOCATE MS. A. K. BHIL
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(SPECIAL CIVIL APPLICATION NO.1224 OF 2026):
[16] Learned advocate Ms. A. K. Bhil for the petitioners,
while assailing the respective impugned Notification under Article
243Q(2) read with Article 243P(d) of the Constitution of India, has
made the following submissions:
[16.1] Learned advocate Ms. A. K. Bhil for the
petitioners, while adopting the arguments and principal contention
with regard to non-compliance of mandate contained in Articles
243Q(2) and 243P(d) of the Constitution of India, additionally,
submitted that in view of the provisions under Article 244 read
with the 5th Schedule of the Constitution, the said Notification
could not have been issued without constituting or consulting the
Tribal Advisory Council. Thus, the exercise undertaken under
Articles 243Q(2) and 243P(d) of the Constitution of India renders
itself unconstitutional in absence of any such consultation with the
Tribal Advisory Council. It is submitted that major agriculture
holding comprises restricted Tribal lands under the provisions of
Section 73 of the Gujarat Land Revenue Code and thereby,
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inclusion of those protected lands in the smaller urban area will
have significance important and such factors, having not been
considered by the authorities, would render the impugned
Notification illegal and unconstitutional.
[16.2] It was lastly submitted that no valid resolution or
consent of the Gram Panchayats was ever obtained and the consent
relied upon by the respondents is merely a paper formality without
meaningful consultation and without compliance of the mandate. It
is submitted that the respondents have materially failed to consider
the petitioner’s socio-economic condition namely predominantly
Tribal agriculturists depending upon the agriculture and forest
produced for the livelihood and that has resulted into serious
miscarriage of justice.
SUBMISSIONS OF LEARNED ADVOCATE MR. BHARAT RAO
(SPECIAL CIVIL APPLICATIONS NO.5138 OF 2026):
[17] Learned advocate Mr. Bharat Rao for the petitioners,
while assailing the respective impugned Notification under Article
243Q(2) read with Article 243P(d) of the Constitution of India, has
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made the following submissions:
[17.1] It is submitted that the impugned Notification is
contrary to the Article 243Q(2) of the Constitution of India
inasmuch as it neither records nor demonstrates satisfaction of the
essential constitutional parameters governing the declaration of a
transitional or a small urban areas including the level of
urbanization, extent of non-agricultural activities and economic
importance of the subject villages.
[17.2] It was submitted that the exercise undertaken
under Article 243Q(2) of the Constitution stands vitiated for want
of meaningful consultation with the concerned Gram Panchayats as
a categorical objections and the resolutions passed by the Gram
Sabhas opposing the proposed inclusion have been completely
ignored.
[17.3] It was contended that the decision is actuated by
the political consideration rather than objective constitutional
criteria and therefore, suffers from mala fides and constitutes a
colourable exercise of powers.
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[17.4] It was submitted that the Dabhoi Nagarpalika
itself lacks inadequate infrastructures and financial capacity to
provide basic civic amenities within its existing municipal limits
and therefore, the decision to further expand its jurisdiction is
irrational against the public interest. Inclusion would also impose
undue tax burden upon the economic and rural residents which
would result into serious civil consequences that too without
affording them an opportunity of hearing.
SUBMISSIONS OF LEARNED SENIOR ADVOCATE MR. DHAVAL
VYAS (SPECIAL CIVIL APPLICATION NO.758 OF 2026):
[18] Learned Senior Advocate Mr. Dhaval Vyas assisted by
learned advocate Mr. Naman Brahmbhatt for the petitioners, while
assailing the respective impugned Notification under Article
243Q(2) read with Article 243P(d) of the Constitution of India, has
made the following submissions:
[18.1] It was submitted that Section 7(2) of the Gujarat
Panchayats Act mandates consultation with the elected Gram
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Panchayat constituted under Section 9 before any recommendation
for inclusion, exclusion or cesser of a village is made. It is,
therefore, submitted that such consultation cannot be substituted
by consultation with an Administrator which is merely a temporary
appointee of the Government.
[18.2] It was further submitted that requirement of
consultation is mandatory and must be meaningful. A strong
reliance is placed on the law laid down by the Hon’ble Apex Court
in the petitioner’s own case reported in 1999(2) SCC 366, wherein
it has been held that consultation with the elected Gram Panchayat
constitutes the mode of obtaining the views of the residents. Thus,
such consultation cannot be reduced to empty formality or
dispensed with for any kind of administrative convenience.
[18.3] It was contended that recommendation of cesser
of Sahij village and its inclusion in Kalol Nagarpalika was
admittedly made on 16th October 2025 and forwarded on 17th
October 2025. Admittedly, elected body of Sahij Gram Panchayat
was constituted on 25th June 2025. Thus, any recommendation,
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having been made without consultation with the elected body, is
contrary to the provisions of Section 7(2) of the Gujarat Panchayats
Act and stands vitiated.
[18.4] It was submitted that Article 243Q(2) of the
Constitution of India obligates the Government to exercise powers
having regard to the constitutional factors specified therein.
Therefore, expression “having regard to” requires consideration of
all the enumerated factors along with other consideration. In
absence of any such compliance, Notification stands contrary to the
mandate of the Constitution of India and therefore, deserves to be
quashed and set aside.
[18.5] It was contended that from the communications
dated 16th October 2025 and 17th September 2025, it appears that
recommendation was founded only on the perceived urbanization
of the area and inability of the Gram Panchayat to provide water
supply and sewage facility. However, no consideration of any
factors prescribed under Article 243Q(2) of the Constitution
appears to have ever taken into consideration. Under the
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circumstances, the entire decision making process, in exercise of
powers under Article 243Q(2) of the Constitution of India, does not
withstand with the mandate of the Constitution of India and thus,
would certainly be amenable to the judicial review of this Court
under Article 226 of the Constitution of India.
SUBMISSIONS OF LEARNED ADVOCATE MR. HARDIK RAWAL
(SPECIAL CIVIL APPLICATION NO.1115 OF 2025):
[19] Learned advocate Mr. Hardik Rawal for the petitioners,
while assailing the respective impugned Notification under Article
243Q(2) read with Article 243P(d) of the Constitution of India, has
made the following submissions:
[19.1] It was submitted that the impugned Notification
and the entire decision making process are arbitrary,
unconstitutional and vitiated by non-application of mind being
violative of Article 243Q(2) of the Constitution. It was contended
that the Notification considers only three out of five mandatory
factors prescribed under Article 243Q(2) namely population,
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population density and economic importance while completely
ignoring consideration of revenue generated for local
administration and the percentage of unemployment of non-
agriculturists. It was therefore submitted that the same being
contrary to the law laid down by the Hon’ble Apex Court in the
case of Champa Lal v. State of Rajasthan reported in (2018) 16
SCC 356.
[19.2] It was further submitted that the State has neither
framed nor applied any uniform policy or objective benchmark for
evaluating the factors under Article 243Q(2) of the Constitution as
mandated in Champa Lal (supra). It was further submitted that
the constitutional requirements cannot be supplemented or cured
by way of affidavits in view of the principles enunciated in the case
of Mohinder Singh Gill vs. Chief Election Commissioner, New
Delhi reported in 1978 (1) SCC 405. Learned advocate Mr. Rawal
fervently submitted that the decision rendered by the Hon’ble Apex
Court in the case of State of Rajasthan vs. Ashok Khetoliya
reported in 2022 (12) SCC 185 does not dilute the ratio of
Champa Lal (supra). It was submitted that in any event, where
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there are conflicting decisions of co-equal Benches, the decision
rendered by the earlier Bench is binding and the same is now
explained in Union Territory of Ladakh vs. Jammu and Kashmir
reported in 2024 (18) SCC 343 and the Constitutional Bench
decision in the case of National Insurance Company Ltd vs.
Pranay Shetty reported in 2017(6) SCC 680.
SUBMISSIONS OF LEARNED ADVOCATE MR. PRAKASH
PANDYA (SPECIAL CIVIL APPLICATION NO.14809 OF 2025):
[20] Learned advocate Mr. Prakash Pandya for the
petitioners, while assailing the respective impugned Notification
under Article 243Q(2) read with Article 243P(d) of the
Constitution of India, has made the following submissions:
[20.1] It was contended that while publishing the
Notification under Article 243Q(2) of the Constitution of India,
mandatory requirement was not complied with and thereby,
impugned Notification issued, without examining the constitutional
parameters, would not withstand within the four corners of law.
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[20.2] It was submitted that the village Padana
originally formed part of Anjar Taluka and came within the
Gandhidham Taluka only upon creation of 1997 and 1998. After
four of the nine villages of the Gandhidham Taluka were included
in the Municipal Corporation w.e.f. 1st January 2025, only five
villages remained. It was pointed out that village Padana is not
contiguous with the existing limit of Municipality as Mithi Rohar
and Chudva lies within Gandhidham and Padana, which itself
demonstrates arbitrary action of inclusion of village Padana.
SUBMISSIONS OF LEARNED ADVOCATE MR. SUBODH KUMUD
(SPECIAL CIVIL APPLICATION NO.14977 OF 2025):
[21] Learned advocate Mr. Subodh Kumud for the
petitioners, while assailing the respective impugned Notification
under Article 243Q(2) read with Article 243P(d) of the
Constitution of India, has made the following submissions:
[21.1] It was submitted that the impugned Notification
is vitiated in absence of any uniform policy or objective benchmark
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for evaluating the parameters prescribed under Article 243Q(2) of
the Constitution and contrary to the law laid down by the Hon’ble
Apex Court in the case of Champa Lal (supra).
[21.2] The entire exercise undertaken by the authorities
smacks of arbitrariness and colourable exercise of powers inasmuch
as the Notification is founded incorrect and unsupported statistics
including erroneous particulars relating to area, population density,
percentage of persons engaged in the non-agriculture activities and
the nature of agriculture lands.
SUBMISSIONS OF LEARNED SENIOR ADVOCATE MR. SHALIN
MEHTA (SPECIAL CIVIL APPLICATIONS NOS.14145 of 2025,
14274 OF 2025, 14298 OF 2025 AND 14300 OF 2025):
[22] Learned Senior Advocate Mr. Shalin Mehta assisted by
learned advocate Mr. N. P. Chaudhary for the petitioners, while
assailing the respective impugned Notification under Article
243Q(2) read with Article 243P(d) of the Constitution of India, has
made the following submissions:
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[22.1] It was submitted that recommendation for
inclusion of village or cesser of local area to be a village can be
made after consultation with the village panchayat. Consultation
with the village panchayat can only be done with the panchayat
constituted under Section 7 of the Gujarat Panchayats Act. It was
submitted that consultation would only be meaningful and effective
after the same is done with the elected body.
[22.2] It was submitted that right of any citizen to be
heard or to object against inclusion or exclusion or cesser any area
is to be considered meaningfully and via consultative process with
the elected body.
[22.3] It was submitted that the consultation of village
panchayat, which has been duly constituted by way of a democratic
process and being conferred constitutional status, has to be
meaningful and effective and cannot be empty formality.
[22.4] In view of Article 243Q(2) of the Constitution,
parameters stated therein, have to be mandatorily considered with
creating benchmark criteria so as justify inclusion or exclusion of
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any village which reflects the entire process transparent,
meaningful, logical and rational.
SUBMISSIONS OF LEARNED ADVOCATE GENERAL MR. KAMAL
TRIVEDI FOR THE RESPONDENTS – STATE AUTHORITIES:
[23] Per contra, learned Advocate General Mr. Kamal Trivedi
assisted by learned Government Pleader Mr. G. H. Virk with
learned A.G.Ps. Ms. Dharitri Pancholi with Mr. Jay Barot with Mr.
Vinay Bairagra for the respondents – State authorities, while
supporting the respective impugned Notifications, has made the
following submissions:
[23.1] At the outset, it was vehemently submitted that
issuance of impugned Notifications under Article 243Q(2) of the
Constitution of India is a constitutional and legislative exercise
being undertaken by the State authorities and thereby, as such any
such exercise, there is no room for consent, to offer hearing and /
or consultation requirement. It was submitted that Article 243Q(2)
of the Constitution does not specifically lay down any such
requirement of obtaining consent, to offer hearing and / or
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undertake consultation with the Gram Panchayat. It is therefore
submitted that the fundamental contention with regard to
consultative process itself falls flat on the ground. At the best, the
consultation can be said to be directive and not the mandatory.
Therefore, present petitions deserve to be dismissed.
[23.2] It was next submitted that relying upon the
provisions of Article 243Q(2) of the Constitution, no provision is
made therein with regard to setting up a benchmark standard and /
or any kind of criteria with regard to factors those are to be
considered. Thus, it was fervently submitted that addition of any
kind of benchmark of any of the criteria prescribed under Article
243Q(2) would be amounting to supplant the words those are not
specifically incorporated. Under the circumstances, it was
submitted that it is a duly legislative wisdom left upon the State
authorities to consider the parameters which are relevant for the
purpose of taking any decision and issuing Notification under
Section 243Q(2) of the Constitution of India.
[23.3] It was submitted that “consultation” was
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prescribed under the erstwhile Sections 4 and 4A of the Gujarat
Municipalities Act, 1963, however, pursuant to amendment in the
year 1993, Sections 4 and 4A were deleted and thereby,
requirement of consultation, while declaring or altering the limits
of any Municipality, came to be dispensed with. Thus, the area of
Municipal borough under Section 4 of the Gujarat Municipalities
Act, 1993 came to be changed under Article 243Q(2) of the
Constitution read with Section 2(15) of the Gujarat Municipalities
Act followed by a resolution under the provisions of Section 5(2) of
the Municipalities Act and while doing so, the consultative process
envisaged prior to declaration or alteration of municipalities has
been given completely go-bye. In that view of the matter, it was
vehemently submitted that no petitioner has got any statutory right
claiming consultation much less effective in nature.
[23.4] It was next submitted that even otherwise there
was exchange of views between different departments, as can be
seen from the files produced on record and thereby, it can very well
be said that due consultation was made prior to taking any decision
and issuing Notification under Article 243Q(2) of the Constitution
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of India. It was next submitted that the provision of Section 7 of the
Gujarat Panchayats Act would only be applicable in cases of any
Notification under Section 243(g) read with Section 255 of the
Gujarat Panchayats Act requires to be issued. It was further
submitted that Section 7 of the Panchayats Act would only be
applicable when any local area sought to excluded, included and /
or cesser of any local area to be a village and thereby, while issuing
Notification under the provision of Section 243Q of the
Constitution, consultation, as envisaged under Section 7(2) of the
Panchayats Act, would never arise. It was the submitted that
publication of Notification under Section 243Q(2) is altogether a
distinct and independent provision with regard to constitution of
Municipality and thus, in exercise of powers under Section 243Q, if
the village panchayats are to be merged within the local limits of
Municipality, no consultative process with the village panchayat
and / or with its residents is required. Thus, consultation is not
mandatory in case of village merges with Municipality.
[23.5] Without prejudice to the aforesaid contentions,
learned Advocate General also pressed into service an alternative
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submission that even otherwise, the provision of Article 243Q(2)
would not be applicable and it is a Notification said to be under
Section 243P(d) of the Constitution of India. It was submitted that
as such by way of impugned Notification, there is no constitution of
new Nagarpalika and therefore, the provision of Article 243Q(2)
would only come into play in case of constitution of a new
Municipality. In the instant case, village panchayats were sought to
be merged with already duly constituted Municipalities and the
same was done by the authorities by virtue of powers under Section
243P(d) of the Constitution of India.
[23.6] By making aforesaid submissions, it is prayed to
dismiss the petitions.
SUBMISSIONS OF LEARNED SENIOR ADVOCATE MR. PRAKASH
JANI FOR THE RESPECTIVE RESPONDENT – GODHRA
NAGARPALIKA:
[24] Learned Senior Advocate Mr. Prakash Jani assisted by
learned advocate Mr. Pravin Panchal for the respective respondent
– Godhra Nagarpalika, while adopting all the contentions of
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learned Advocate General Mr. Kamal Trivedi for the respondents –
State authorities, has made the following submissions:
[24.1] It was submitted that the entire process before
issuance of Notification under Section 243Q(2) of the Constitution
of India was followed by the State authorities inasmuch as in the
entire process, the Chief Officers of the Nagarpalika, District
Collectors and District Regional Commissioners of Municipalities,
all have provided necessary inputs / datas and thereby, after having
been taken into consideration of such inputs and datas,
recommendation of various Government Departments, a considered
decision was taken and then, Notification under Section 243Q(2) of
the Constitution of India was issued, thereby, viewing from any
angle, it cannot be said to be faulty on any count.
[24.2] It was next submitted that Special Civil
Application No.19474 of 2023 is pending since 2023 without
operation of any stay and as such the Notification in question was
implemented by extending civic facilities, creation of new electoral
votes, preparing voters lists and even the entire datas with regard
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to birth and death of the panchayats have been transferred, in that
event, more particularly, when the election programme is
scheduled and on the verge of completion, at this stage, this Court
may not entertain present petition by way of its prerogative writ
jurisdiction under Article 226 of the Constitution of India, more
particularly, when equities have been created.
SUBMISSIONS OF LEARNED GOVERNMENT PLEADER MR. G.
H. VIRK FOR THE RESPECTIVE RESPONDENTS:
[25] Learned Government Pleader Mr. G. H. Virk for the
respective respondents, at the outset, has produced a photocopy of
original files of the State authorities so as to persuade this Court
that necessary exercise before issuance of Notification under Article
243Q(2) of the Constitution of India was undertaken and due
consideration of all the parameters were looked into.
[25.1] It was submitted that Article 243Q(2) of the
Constitution of India does not mandate that each and every factors
mentioned therein should be considered. It was submitted that use
of words “or such other factors” in the Article 243Q(2) clearly
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states that any single factor or more than one factor referred to
therein or such other factors as may be deemed fit may be taken
into consideration before including any Gram Panchayat in the
Municipality. Relying upon the original files, learned Government
Pleader Mr. Virk vehemently submitted that the State Government
has considered all the factors expressly referred to in the Article
243Q(2) of the Constitution of India before issuing the impugned
Notifications, thereby, present petitions deserve no consideration
and be dismissed accordingly.
[25.2] It was submitted that the impugned Notifications
cannot be said to be illegal merely because it does not refer to any
factors referred in the Article 243Q(2) of the Constitution as the
same deserves to be considered as the same were issued in exercise
of powers under Section 5 of the Gujarat Municipalities Act, 1993.
[25.3] It was submitted that the impugned Notifications
are issued by the State authorities in exercise of their constitutional
as well legislative powers pursuant to Article 243Q(2) of the
Constitution read with Section 2(13) and Section 5(3) of the
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Gujarat Municipalities Act, 1993. Thus, decision taken by the State
authorities, in exercise of constitutional as well as legislative
powers, cannot be normally be subjected to judicial review under
Article 226 of the Constitution of India.
[25.4] Relying upon the decision of the Hon’ble Apex
Court in the case of State of Rajasthan vs. Ashok Khetoliya
(supra), it was contended that a separate Notification under Article
243Q(2) is neither contemplated nor required and that
Notifications issued under Section 5(2) of the State enactment is
valid so long as it is not in consistence with Part – IXA of the
Constitution. Consequently, the impugned Notification cannot be
invalidated and merely because it does not expressly referred to the
factors under Article 243Q(2) as it constitutes a constitutional as
well as statutory exercise.
[25.5] It was next submitted that Section 7 of the
Gujarat Panchayats Act applies only in case of inclusion or
exclusion area of village and has no application to alteration of
Municipalities limits. It was next submitted that reliance placed by
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the petitioners in case of Champa Lal (supra) is misplaced in view
of the subsequent decision in Ashok Khetoliya (supra), which
clarifies that part – IXA of the Constitution does not envisage
issuance of a separate Notification under Article 243Q(2) of the
Constitution.
[25.6] It was submitted that the impugned Notifications
were preceded by an administrative exercise, including the
proposal of Municipal Commissioners, Administrators, check lists
containing the particulars of Article 243Q(2) factors and several
opinions of Municipalities, Collectors, Regional Commissioners.
Thus, the entire exercise was undertaken by the State authorities
within the four corners of law and each and every factors were
considered, the same may be varied from case to case, but overall
due consideration was given and thereby, Notifications cannot be
said to be arbitrary nor colourable exercise of powers. Lastly, it was
submitted that expression of words “having regard to” merely
require consideration of relevant factors and not the recital in the
Notifications itself. The decision making process and the
application of mind are borne out from the official records and
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file’s notings, which are permissible to be relied upon. Thus, the
entire exercise undertaken by the State authorities may not be said
to be faulty from any angle and therefore, present petitions deserve
to be dismissed.
[26] Heard learned advocates appearing for the respective
parties and have gone through the material produced on record. No
other and further submissions have been canvassed by learned
advocates appearing for the respective parties, except what are
stated hereinabove.
[27] Having heard the learned advocates appearing for the
respective parties and having gone through the material produced
on record, following questions of law arise for consideration of this
Court:
(i) Whether, the impugned Notifications are invalidated on
the ground of arbitrariness, non-application of mind
and / or no effective compliance to the factors
prescribed under Article 243Q(2) of the Constitution of
India?
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(ii) Whether, the scope of judicial review over the
Notifications issued under Section 243Q(2) of the
Constitution of India extends to examine the existence
and adequacy of material considered by the State or is
confined only to testing the legality of the decision
making process?
(iii) Whether, consultation with an Administrator, vitiates
the impugned exercise of issuance of Notifications
under Article 243Q(2) of the Constitution of India in
view of the provision of Section 7(2) of the Gujarat
Panchayats Act, which specifies consultation with an
elected Gram Panchayat?
(iv) Whether, after constitution of municipal area pursuant
to Notifications issued under Article 243Q(2) of the
Constitution of India, completion of electoral process,
assumption of office by the elected representatives and
commencement of municipal administration, this Court
ought to have exercised the writ jurisdiction to quash
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the foundational Notifications?
AND / OR
(v) Whether, every violation of Article 243Q of the
Constitution of India necessarily warrants quashing of
the Notifications, or whether, the Court may, in the
peculiar facts and in view of the equity created after
constitution of Municipality and completion of election,
declines to interfere?
[28] So as to decide the aforesaid questions of law, analysis
of legal provisions can be in two parts: (I) relating to formation or
constitution of Municipalities, and (II) constitution of Village
Panchayat. Firstly, this Court would consider the provisions relating
to Municipalities. Article 243Q(2) of the Constitution of India
reads thus:
“243Q. Constitution of Municipalities.
.... ....
(2) In this article, 'a transitional area', 'a smaller urban area'
or ‘a larger urban area’ means such area as the Governor may,
having regard to the population of the area, the density of the
population therein, the revenue generated for localPage 47 of 118
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administration, the percentage of employment in non-
agricultural activities, the economic importance or such other
factors as he may deem fit, specify by public notification for the
purposes of this Part.”
[28.1] A plain reading of the aforesaid provision indicates that
Article 243Q primarily envisages the constitution of Municipalities
in every State, which may be classified into different categories of
local areas, namely, a transitional area (Nagar Panchayat), a
smaller urban area (Municipal Council), or a larger urban area
(Municipal Corporation). The significance, however, lies in Article
243Q(2), which empowers the Governor to specify, by public
notification, any area as a transitional area, a smaller urban area,
or a larger urban area, having regard to factors such as the
population of the area, the density of population, the revenue
generated for local administration, the percentage of employment
in non-agricultural activities, the economic importance of the area,
and such other factors as may be considered appropriate. Thus,
Article 243Q(2) is essentially a provision dealing with the
constitution and classification of municipal areas. Significantly, the
said provision does not prescribe any procedural requirement of
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consultation before the exercise of such power.
[29] Article 243P(d) of the Constitution of India reads thus:
“243P. Definitions
In this Part, unless the context otherwise requires,–
… …
(d) ‘Municipal area’ means the territorial area of a
Municipality as is notified by the Governor;”
[29.1] Under Part – IXA of the Constitution of India,
Article 243P(d) of the Constitution of India defines “municipal
area”. It means the territorial area of municipality as is notified by
the Governor. Thus, once constitution of any municipality takes
place after the process under Article 243Q of the Constitution of
India and Notification is issued, then under Article 243P(d) of the
Constitution of India would come into play.
[30] Section 5 of the Gujarat Municipalities Act, 1963 reads
thus:
“5. Incorporation of Nagar Panchayat and Municipal
Council. – (1) In every transitional area there shall be aPage 49 of 118
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Nagar Panchayat and every such Nagar Panchayat shall be a
body corporate by the name of “the Nagar Panchayat” and shall
have perpetual succession and a common seal, and may sue and
be sued in its corporate name through its chief officer.
(2) In every small urban area there shall be a Municipal
Council and every such Municipal Council shall be a body
corporate by the name of “the Municipal Council” and shall
have perpetual succession and a common seal, and may sue and
be sued in its corporate name through its chief officer.”
[31] Article 243B of the Constitution of India reads thus:
“243B. Constitution of Panchayats. – (1) There shall be
constituted in every State, Panchayats at the village,
intermediate and district levels in accordance with the
provisions of this Part.
(2) Notwithstanding anything in clause (1), Panchayats at the
intermediate level may not be constituted in a State having a
population not exceeding twenty lakhs.”
[32] Article 243(g) of the Constitution of India reads thus:
“243. Definitions.- In this Part, unless the context otherwise
requires,-
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(g) “village” means a village specified by the Governor by
public notification to be a village for the purposes of this Part
and includes a group of villages so specified.”
[32.1] As per Part – IX of the Constitution of India,
under heading “The Panchayats”, Article 243(g) of the Constitution
of India defines “village”. A “village” means a village specified by
the Governor in a public Notification to be a village.
[33] Section 7(2) of the Gujarat Panchayats Act, 1993 reads
thus:
“7. Recommendation Specification of village –
… …
(2) After consultation with the taluka panchayat, the district
panchayat and village panchayat concerned (if already
constituted), the competent authority may at any time
recommend inclusion within or exclusion from any villages any
local area or otherwise alternation of limits of any village, or
recommend cesser of any local area to be a village, to the
Governor for exercise of his powers under clause (g) of article
243 of the the Constitution.”
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[33.1] A plain reading of the aforesaid provision reveals that
it is a foundational statutory provision governing the specification,
alteration and cesser of a village for the purposes of Part IX of the
Constitution of India. The provision comprises two distinct parts.
The first part, embodied in Section 7(1), authorises the competent
authority, after conducting such inquiry as may be prescribed, to
recommend that a revenue village, a group of revenue villages, or a
hamlet forming part of a revenue village be specified as a village
for the purposes of Part IX of the Constitution, subject to the
prescribed population criteria. Thus, Section 7(1) of the Gujarat
Panchayats Act, 1993 is concerned with the initial constitutional
identification and specification of a village.
So far as the second part is concerned, Section 7(2) of the
Gujarat Panchayats Act deals with subsequent territorial
modifications. It empowers the competent authority, after
consultation with the Taluka Panchayat, the District Panchayat and
the Village Panchayat concerned (where already constituted), to
recommend to the Governor the inclusion of any local area within a
village, the alteration of the limits of a village, or the cessation of
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any local area as a village for the purposes of Part IX of the
Constitution of India. In essence, Section 7(2) governs situations
where the territorial identity of an existing village is proposed to be
modified or extinguished.
The consultation contemplated under Section 7(2) constitutes
a statutory safeguard intended to ensure that the institutions of
local self-government are afforded an opportunity to express their
views before any alteration of their territorial jurisdiction or before
their very existence is brought to an end. Thus, Section 7 provides
the statutory mechanism for giving effect to the constitutional
scheme contained in Part IX, including Article 243(g), which
defines the expression “village”, and operates even in cases where
the alteration or cessation is ultimately effected by the Governor
through a public notification.
[34] Article 244 of the Constitution of India reads thus:
“244. Administration of Scheduled Areas and Tribal Areas
(1) The provisions of the Fifth Schedule shall apply to the
administration and control of the Scheduled Areas andPage 53 of 118
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Scheduled Tribes in any State other than the States of Assam
Meghalaya, Tripura and Mizoram.
(2) The provisions of the Sixth Schedule shall apply to the
administration of the tribal areas in the state of Assam,
Meghalaya, Tripura and Mizoram.”
[34.1] A plain reading of the aforesaid provision indicates
that Article 244 of the Constitution of India is a beneficial
constitutional provision intended to secure special protection for
Tribal communities. It seeks to preserve tribal autonomy, safeguard
tribal lands from alienation, and ensure the effective
implementation of the constitutional protections envisaged for
Scheduled Tribes. In essence, Article 244 provides the
constitutional framework for the administration of Scheduled Areas
and Tribal Areas. It is an enabling provision which gives effect to
the Fifth Schedule and the Sixth Schedule to the Constitution and
extends special constitutional protection to Tribal communities by
recognising their distinct social, cultural and geographical
characteristics.
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[35] Keeping in mind the aforesaid provisions of law, it is, at
this stage, also relevant to take note of decisions of this Court as
well as the Hon’ble Apex Court governing the field. At the outset,
the Coordinate Bench of this Court in the case of Karodiya Village
Panchayat through Sarpanch vs. State of Gujarat [Special Civil
Application No.7002 of 2020 and allied petitions decided on 7th
May 2021], wherein by way of Notification under Article 243Q of
the Constitution of India, the Government included many village
panchayats within the municipal limits of Vadodara Municipal
Corporation. Upon being challenged the same Notification, the
Coordinate Bench of this Court, while dismissing the petition, held,
inter alia, that issuance of Notification under Article 243Q is
primarily a policy and legislative decision of the State Government
and thereby, the judicial review therein is confined to examining
whether prescribed statutory procedure is followed, affected parties
were given an opportunity to object where required and the
decision is free from arbitrariness or mala fides. It has been further
held that once the Government considers the constitutional factors
under Article 243Q of the Constitutional of India and follows due
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process, the Court will ordinarily not interfere merely because
residents or Gram Panchayats opposed the same.
[36] Similar issue with regard to merger of village into the
municipality arose before this Court in the case of Dharampur
Gram Panchayat vs. State of Gujarat [R/Special Civil
Application No.14077 of 2020 decided on 22nd January 2021].
The Coordinate Bench of this Court, while holding the Notification,
observed that meaningful consultation, as envisaged under Section
7(2) of the Gujarat Panchayats Act, had taken place. This Court
further held therein that while consultation must be effective and
genuine, it does not require Panchayat’s consent. This Court has
also held that the State Government retains the final authority to
alter municipal or village boundary after consultation and
reorganization of local activities is a legislative / policy function
where the Court will have very limited scope of interference,
mainly, on the ground of illegality, procedural law compliance
and / or arbitrariness and / or mala fides.
[37] The Full Bench of this Court in the case of Pruthvisinh
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Amarsinh Chauhan vs. K. D. Rawat reported in 2004 SCC
Online Gujarat 47, more particularly, paragraphs Nos.10, 10.1,
10.2, 10.3, 11, 12, 13, 13.1 and 16 has held and observed as under:
“10. The next point that is required to be considered by us is
whether there is any conflict between the ratio decidendi
emerging from Nathabhai’s case and from the case of Likhi
Group of Gram Panchayat.
10.1 We have given a close scrutiny to both the cases. In the
case of Nathabhai (Supra), the Division Bench, after referring
to Kalubhai Vs. State of Gujarat, 65 GLR 459, observed that in
the said decision Section 9 Subsection (2) of the Old Act is pari-
materia with Section 7 Subsection (2) of the New Act is
directory and not mandatory. The Division Bench held that
Section does not prescribe what consequences would follow if
prior consultation is not made before taking an action under the
said Section. The Division Bench, ultimately, held and observed
“….it appears that the provision is directory and although it
does not indicate a duty to consult Panchayat before passing an
order under the Section, but, it does not follow that every
departure from that duty will taint the whole proceedings with
a fatal blemish and render it void and ineffective”.
10.2 Making observations on factual aspect of the case, the
Division Bench in Para.9 of the judgment observed, thus :
“In the case, on basis of the material which was before
the Government and the representation made by the
Bavala Nagar Panchayat, the Government had on 24-12-
1990, taken a decision not to accept the proposal for
bifurcation of Bavala Nagar Panchayat. If it had been a
case of mere consideration of the material which was
already there and in respect of which the concerned
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have been said that it was not necessary to consult it
again. But it is an admitted position that fresh material
was placed before the Government after 24-12-1990. For
making consultation effective and real the Government
ought to have disclosed the new material to the
Panchayat and ascertained its view thereon. No reason
has been pointed out for not doing that. It is also not
pointed out that if the action of the Government is
regarded as invalid, it would be prejudicial to public
interest. Therefore, the impugned action of the
Government will have to be regarded as arbitrary and
thus liable to be declared as invalid”.
10.3 Thus, according to the Division Bench, in the case of
Nathabhai (supra) as the decision of the Government founded
on fresh material was without consultation and therefore,
although the requirement of consultation was not mandatory,
the decision was held to be invalid. No reason was indicated by
Government for not undertaking the exercise of consultation.
The ratio decidendi therefore is that requirement of consultation
is not mandatory and is directory. However, the consultation
has to be effective and real, and for making it effective and real,
the new material considered by Government ought to have been
disclosed to the Panchayat and ascertained its view.
11. In the case of Likhi Group Gram Panchayat (supra) also the
Division Bench held that requirement of Section 9(2) of the Old
Act is not mandatory. What is required is the consultation and
not consent or concurrence. Before that Bench, it was also
argued that the Development Commissioner has turned down
the proposal for division / bifurcation and thereafter, without
consultation of the Gram Panchayat or Taluka Panchayat, a
different view was taken to bifurcate the Panchayat. The
Division Bench observed that looking at the resolution, it was
clear that there was no mala fide on part of the Development
Commissioner in issuing the Notification. Earlier there was
consultation and this different view was taken within a short
time and therefore, the Division Bench observed that if
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ultimately the Development Commissioner has issued
Notification within such a short period, it cannot be said that
within such a short period further consultation was required.
The Division Bench relied on Kalubhai‘s case that a duty to
consult Panchayat before passing an order under Section does
not necessarily mean that every departure from their duty will
take the whole proceedings with a fatal damage and render it
void and ineffective. Thus, the Division Bench, in the facts of
that case found that there was no much lapse of time and non-
consultation did not affect the decision.
12. What emerges from these two judgments therefore is that in
case of Nathabhai, the Division Bench found that as the decision
was taken on fresh material, earlier consultation would not be
effective or real. Whereas in the case of Likhi Group of Gram
Panchayat there was no fresh material, there was no change in
circumstance and the time lag was so narrow that the Division
Bench, probably, felt in the facts of the case that fresh
consultation was not required. Both the decisions concurred on
the aspect that requirement of consultation is not mandatory,
but, is directory. The decision taken in both the cases in respect
of further consultation were based on facts of those cases and in
our opinion, as such, there is no conflict between the ratio laid
down in the two decisions.
13. The third point that requires consideration by virtue of the
reference is whether the Government can issue Notification
without again consulting the Panchayat as per the requirement
of Section 7(2) of the New Act.
13.1 As discussed above, though the requirement of consultation
is not mandatory and is directory, in our opinion, it cannot be
given a total go-bye to it. Since the Legislature in its wisdom has
incorporated this provision, it has to be given its due
importance. It is true that in other case non-compliance would
not vitiate the decision, valid reasons therefore have to be
indicated. The object behind the enactment has to be saluted.
The affected party must have an opportunity to express its
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opinion and view on he proposed decision. The term is used as a
consultation and it cannot be, by any stretch of imagination ,
taken as concurrence or consent and therefore, after
consultation a decision may be taken by the Government.
* * *
16. In view of the above discussion, the points for our
determination are answered as under :
(i) The term ‘Consultation’ has to be taken as an
effective and meaningful and genuine consultation and
not a formality.
(ii) There is no conflict between the ratio laid down in
the case of Nathabhai (supra) and Likhi Group Gram
Panchayat (supra). The conclusions are based on fact of
each case, but, there is no conflict in the ratio.
(iii) If proposal has culminated into a decision, fresh
exercise of consultation would be necessary before taking
a fresh decision. We may reiterate that the consultation is
not mandatory and every departure therefrom may not
render it void or ineffective, but, the provisions of law has
to be saluted in its spirit and exercise of consultation
should be undertaken.”
[38] It would be relevant to take notice of the decision of the
Hon’ble Apex Court in the case of Champa Lal (supra), more
particularly, the relevant observations made in paragraphs Nos.8, 9
and 10, which read thus:
“8. It, therefore, appears from the scheme of Article 243Q(2)
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that the Governor is not free to notify ‘AREAS’ in his absolute
discretion but is required to fix the parameters necessary to
determine whether a particular AREA is a transitional area or a
smaller urban area or a larger urban area with due regard to
the factors mentioned above. It is implicit that such parameters
must be uniform for the entire State. It is only after the
determination of the parameters, various municipal bodies
contemplated under Article 243Q(1) could be constituted.
9. In response to a specific query whether any notification
contemplated under Article 243(Q)(2) had been issued by the
State of Rajasthan, Mr. Guru Krishnakumar learned senior
counsel appearing for the State of Rajasthan, produced two
notifications dated 4.7.1995 and 30.4.2012. On a plain
reading of both the notifications, it appears that these
notifications had been issued in exercise of the statutory powers
conferred on the State Government by two different enactments
known as “The Rajasthan Municipality Act, 1959 (since
repealed) and the Rajasthan Municipalities Act, 2009. Apart
from the declaration regarding the source of power for the
issuance of these notifications to be authority conferred by the
various provisions of the above mentioned two enactments, it
appears from the tenor and scheme of the notifications that
these notifications purport to classify municipalities only on the
basis of population. The various other parameters to which
regard is required to be had under Article 243Q(2) were not
taken into consideration for the purpose of classification made
under the above mentioned two notifications. Therefore, in our
opinion, these two notifications cannot be treated as
notifications contemplated under Article 243(Q)(2).
10. In the absence of any notification which meets the
requirements of Article 243Q(2), the entire exercise undertaken
by the State of Rajasthan in upgrading the Napasar village
Gram Panchayat to be a Nagarpalika – [that is equivalent to
Nagar Panchayat as mentioned in Article 243Q(1)(a)] is
unconstitutional as it is inconsistent with the requirements of
the Constitution under Article 243Q of the Constitution ofPage 61 of 118
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India. Therefore, the initial notification dated 6.10.2008 itself is
unsustainable. Unfortunately, this aspect has not been noticed
by the High Court obviously because it was not brought to the
notice of the High Court. The fact that a litigant before the
court does not point out the relevant principles and provisions
of law does not prevent the court from examining the issues
involved in the lis, more particularly, when the process which is
the subject matter of litigation before the court is inconsistent
with the mandate of the Constitution. It is a settled principle of
law that courts are bound to take note of the constitution and
the laws. [S. C. Prashar v. Vasantsen Dwarkadas AIR 1963 SC
1356]”
[38.1] On perusal of the aforesaid decision in Champa
Lal (supra), it has been held that compliance under Article
243Q(2) of the Constitution of India is a constitutional pre-
condition for constituting a municipality and the Governor must
issue a public Notification based on the objective criteria as
mentioned in Article 243Q(2). It further held that a municipality
cannot be constituted merely by invoking the State municipal
statute without first satisfying the constitutional parameters.
[39] The Hon’ble Apex Court in the case of State of
Rajasthan vs. Ashok Khetoliya and another reported in (2022)
12 SCC 185 has held and observed as under:
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“7. Article 243Q of the Constitution and Section 5 of the
Municipalities Act are reproduced hereunder:
Constitution of India Rajasthan Municipalities Act,
2009
243-A. Constitution of Section 5 of the Municipalities Act
Municipalities. –
5. Establishment and
(1) There shall be constituted in incorporation of Municipality.
every State,– – (1) In every transitional area,
there shall be established a
(a)a Nagar Panchayat (by Municipal Board and every such
whatever name called) for a Municipal Board shall be a body
transitional area, that is to say, corporate by the name of the
an area in transition from a rural Municipal Board of the place by
area to an urban area. reference to which the
Municipality is known and shall
(b)a Municipal Council for a have perpetual succession and a
smaller urban area; and common seal and may
sue or be sued in its corporate
(c)a Municipal Corporation for a name.
larger urban area,
(2) In every smaller urban area,
in accordance with the provisions there shall be established a
of this Part: Municipal Council and every such
Municipal Council shall be a body
Provided that a Municipality corporate by the name of the
under this clause may not be Municipal Council of the city by
constituted in such urban area or reference to which the
part thereof as the Governor may, Municipality is known and shall
having regard to the size of the have perpetual succession and a
area and the municipal services common seal and may sue and be
being provided or proposed to be sued in its corporate name.
provided by an industrial
establishment in that area and (3) In every larger urban area,
such other factors as he may deem there shall be established a
fit, by public notification, specify Municipal Corporation and every
to be an industrial township. such Municipal Corporation shall
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be a body corporate by the name
(2)In this article, ‘a transitional of the Municipal Corporation of
area’, ‘a smaller urban area’ or ‘a the city by reference to which the
larger urban area’ means such Municipality is known and shall
area as the Governor may, having have perpetual succession and a
regard to the population of the common seal and may sue and be
area, the density of the sued in its corporate name:
population therein, the revenue
generated for local Provided that a Municipality
administration, the percentage of under this Section may not be
employment in non-agricultural constituted in such urban area or
activities, the economic part thereof as the Governor may,
importance or such other factors having regard to the size of the
as he may deem fit, specify by area and the municipal services
public notification for the being provided or proposed to be
purposes of this Part. provided by an industrial
establishment in that area and
such other factors as he may deem
fit, by notification, specify to be
an industrial township:
Provided further that having
regard to the cultural, historic,
tourist or other like importance of
an urban area, the State
Government may, by notification
in the Official Gazette, exclude
such area from the Municipality
and constitute, or without
excluding such area from the
Municipality constitute in
addition to the Municipality, a
development authority to exercise
such powers and discharge such
functions in the said area as may
be prescribed and
notwithstanding anything
elsewhere in this Act, may, inPage 64 of 118
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relation to such area, delegate, by
notification in the Official
Gazette, such municipal powers,
functions and duties to the said
authority as it may think
appropriate for the proper, rapid
and planned development of such
area.
“12. In Sundarjas Kanyalal Bhatija v. Collector, (1989) 3 SCC
396, a draft notification proposed the formation of a “Kalyan
Corporation” by merging municipal areas of Kalyan,
Ambarnath, Dombivali and Ulhasnagar. The State Government
issued a notification excluding Ulhasnagar from the proposed
corporation. The High Court found that the decision to exclude
Ulhasnagar was taken by the Government abruptly and in an
irrational manner. This Court held as under:
“27. Reverting to the case, we find that the conclusion
of the High Court as to the need to reconsider the
proposal to form the Corporation has neither the
attraction of logic nor the support of law. It must be noted
that the function of the Government in establishing a
Corporation under the Act is neither executive nor
administrative. Counsel for the appellants was right in his
submission that it is legislative process indeed. No judicial
duty is laid on the Government in discharge of the
statutory duties. The only question to be examined is
whether the statutory provisions have been complied with.
If they are complied with, then, the court could say no
more. In the present case the Government did publish the
proposal by a draft notification and also considered the
representations received. It was only thereafter, a decision
was taken to exclude Ulhasnagar for the time being. That
decision became final when it was notified under Section
3(2). The court cannot sit in judgment over such decision.
It cannot lay down norms for the exercise of that power. It
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cannot substitute even “its juster will for theirs”.”
13. In Champa Lal v. State of Rajasthan (2018) 16 SCC 356,
this Court had struck down a notification issued by the
Governor of the State of Rajasthan holding that in the absence
of notification which meets the requirement of Article 243Q(2),
the entire exercise undertaken by the State of Rajasthan in
upgrading the Napasar Village Gram Panchayat to be a
Nagarpalika is inconsistent with the requirements provided
thereof under the Constitution.
14. We find that such judgment is not in tune with the scheme
of the Constitution and is contrary to a three-Judge Bench
judgment of this Court reported as Parmar Samantsinh
Umedsinh v. State of Gujarat & Ors. (2022) 15 SCC 364
wherein the vires of the Gujarat Provincial Municipal
Corporation Act, 1949 were subject matter of challenge on the
ground that the State law has provided more than one
representative from a single Ward and, thus, this provision is
inconsistent with the provisions of Article 243R and Article
243S of the Constitution. This Court held as under:
“20. The power of competent Legislature, i.e., State
Legislature in the light of enabling provisions provided in
the Constitution with regard to framing of laws
concerning Legislature cannot be whittled down by way of
restrictive interpretation as contended by the appellants.
The State Legislature in federal set up specially in the
matter of local Government are to enable enough seats to
adopt the reservation based on local body.
xxx xxx xxx
36. The ratio which can be culled out from the above
judgment is that power of the State to legislate within its
legislative competence is plenary and the same cannot be
curtailed in the absence of an express limitation placed on
such power in the Constitution itself.
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37. Article 243ZF provides that 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 Part IXA, shall not continue beyond
expiration of one year from commencement of the
constitutional amendment. Thus, Part IXA of the
Constitution categorically contemplated that any law
made by State Legislature, which is inconsistent with the
provisions of Part IXA shall cease to operate on the
expiration of one year or till amended or repealed by a
competent Legislature, whichever is earlier. The
Constitution provisions, thus, mandates that any law of
the State, which is inconsistent, cannot continue. Thus,
this limitation shall also govern any law made after
enforcement of Constitution (Seventy fourth Amendment)
Act. Thus, a law, which 7 2021 SCC OnLine SC 138 is
inconsistent with Part IXA cannot be framed by the State
Legislature.
xxx xxx xxx
39. One of the meanings of expression “inconsistent” as
approved by this Court is mutually repugnant or
contradictory. Article 254 of the Constitution contains a
heading “inconsistency between laws made by the
Parliament and the laws made by the Legislature of the
State” whereas under Article 254(1) and Article 254(2)
the words used are repugnant. The Constitution itself,
thus, has used the words inconsistency and repugnancy
interchangeably. To find out as to whether a law made by
State Legislature is inconsistent with provisions of Part
IXA of the Constitution, the principles which have been
laid down by this Court to determine the repugnancy
between the law made by the Legislature of a State and
law made by Parliament can be profitably relied on. We,
thus, need to notice the principles on which thePage 67 of 118
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repugnancy of law made by State and law made by the
Parliament is found out.
xxx xxx xxx
51. Thus, the Legislature of a State may by law has to
provide all matters relating to or in connection with
election to the Municipalities, which includes filling of the
seats in the Municipality by person chosen by direct
election. Articles 243R and 243ZA does not give any
indication as to whether from territorial constituency, i.e.,
the Wards, whether only one member has to be elected in
the Municipality or it can be multiple member
constituency. The constitutional provisions of Article
243R, which provides for composition of Municipalities
and that of Article 243ZA does not give any indication to
the above. The provisions of Article 243ZG, which deals
with bar to interference by courts in electoral matters
throws some light…
xxx xxx xxx
60. We have analysed the provisions of Article 243R,
243S and have come to the definite conclusion that no
limitation in Article 243S can be found of which contains
any prohibition of having more than one member for a
Ward.
xxx xxx xxx
64. We, in the present case, after analysing the relevant
provisions of Part IXA of the Constitution has come to the
conclusion that there is no prohibition or limitation in
Part IXA of the Constitution prohibiting the State
Legislature from making a law providing for election of
more than one member from one territorial constituency,
i.e., Ward.”
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15. In State of U.P. & Ors. v. Pradhan Sangh Kshettra Samiti &
Ors. [ 1995 Supp (2) SCC 305], this Court was considering the
Constitution (Seventy-third Amendment) Act, 1992. Article
243C in Part IX of the Constitution is similar to Article 243Q in
Part IX-A of the Constitution. The High Court had struck down
the definition of Village, Gram Sabha and Panchayat Area
under the U.P. Panchayat Raj Act, 1947 as ultra vires the
respective definitions given in Part IX of the Constitution. This
Court held as under:
“3. On coming into force of the said Constitutional
Amendment, the States were required by the Centre to
take steps to organise village panchayats on the lines of
the provisions of the said Constitutional Amendment by
making law or amending the existing law suitably.
………….
xxx xxx xxx
11. The panchayats are to be constituted at the village,
intermediate and district levels and the “panchayat area”
as defined by Article 243(e) means the territorial area of
the panchayat whether at the village, intermediate or
district levels. What is necessary to remember further is
that while as per Article 243(c) “intermediate level” is a
level between the village and district levels, as specified by
the Governor, the ‘district’ as per Article 243(a) means a
district in a State the boundaries of which may be
changed by the State Government. The district is not
required to be specified by the Governor whereas village
and intermediate levels have to be specified by him for the
purposes of the said Part of the Constitution.
xxx xxx xxx
36. As regards the objection of the High Court that
whereas Article 243(g) requires the Governor to specify
the village, the Act gives this power to the State
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Government to do so, the High Court has failed to notice
the provisions of the Constitution which equate the
Governor with the State Government in exercise of his
functions except where he is by or under the Constitution
required to exercise the functions in his
discretion…………..
xxx xxx xxx
44. It is for the Government to decide in what manner the
panchayat areas and the constituencies in each panchayat
area will be delimited. It is not for the court to dictate the
manner in which the same would be done. So long as the
panchayat areas and the constituencies are delimited in
conformity with the constitutional provisions or without
committing a breach thereof, the courts cannot interfere
with the same. We may, in this connection, refer to a
decision of this Court in Hingir-Rampur Coal Co. Ltd. v.
State of Orissa [(1961) 2 SCR 537 : AIR 1961 SC 459] .
In this case, the petitioner – mine owners, had among
others, challenged the method prescribed by the
legislature for recovering the cess under the Orissa Mining
Areas Development Fund Act, 1952 on the ground that it
was unconstitutional. The majority of the Bench held that
the method is a matter of convenience and, though
relevant, has to be tested in the light of other relevant
circumstances. It is not permissible to challenge the vires
of a statute solely on the ground that the method adopted
for the recovery of the impost can and generally is
adopted in levying a duty of excise.””
“16. Since the local Government falls in entry 5 of List II of the
Seventh Schedule, therefore, it is the State Legislature alone
which is competent to legislate in respect of the municipalities
with only one limitation that the provisions of the State Act
cannot be inconsistent with the mandate of the Scheme of Part
IXA of the Constitution. The scheme of Part IXA of the
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under Article 243Q of the Constitution and thereafter under
Section 5 of the Municipalities Act. As Section 5 of the
Municipalities Act is not inconsistent with any provisions of
Article 243Q of the Constitution, therefore, two notifications are
not contemplated or warranted under the Scheme of Part IXA or
the Municipalities Act as reproduced in the table above.”
[39.1] On perusal of the aforesaid decision in Ashok
Khetoliya (supra), it appears that the Hon’ble Apex Court, while
allowing the State appeal, held that a separate Notification under
Article 243Q(2) of the Constitution of India is not mandatory.
Article 243Q of the Constitution of India does not require the
Governor to issue an independent Notification declaring an area to
be a transitional area before constituting a municipality. If the State
Government issued independent Notification under the Municipal
Law after considering constitutional requirements, it would suffice.
It further held that constitution of Municipalities is a legislative
function and the Court cannot interfere with such decision merely
because another view is possible. In the said decision, the Hon’ble
Apex Court also held that Article 243Q of the Constitution of India
lays down guiding factors by envisaging factors therein so as to
guide the State decision making process. Importantly, the Hon’ble
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Apex Court expressly held that interpretation adopted in Champa
Lal (supra) was not in consonance with the constitutional scheme
and could not be treated as laying down correct constitutional law.
[40] At this juncture, it would also be an apt to take notice
of the decision of the Hon’ble Apex Court in the case of State of
Punjab vs. Tehal Singh reported in (2002) 2 SCC 7, wherein, in
substance, the Hon’ble Apex Court has held that Notification issued
constituting and altering Gram Sabha boundary is a legislative
function and they are not administrative or quasi-judicial decision
The Hon’ble Apex Court also held that since the Notification was
legislative function, no principle of natural justice requires to be
observed unless the statute specifically provides. It was further held
that judicial review of such Notification is limited to questions of
legality, constitutional validity, mala fides or lacking of statutory
authorities. Recently, Hon’ble Rajasthan High Court, in the case of
Motan Das vs. State of Rajasthan reported in 2025 SCC online
RAJ 404, in substance, held that the Governor’s role under Article
243Q of the Constitution of India is discretionary and does not
create an independent mandatory procedural requirement.
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Constitution or alternation of municipality boundary is a legislative
function, therefore, the principles of natural justice ordinarily do
not apply unless expressly mandated by the State. It also held that
the decision relating to the Constitution of Municipality is a policy
and legislative matter and the Court shall have a limited scope of
interfere.
[41] After having considered the aforesaid enunciation of
law, what is emerging from the aforesaid settled proposition of law
with respect to Article 243Q(2) of the Constitution of India can be
stated as under:
(i) Article 243Q of the Constitution of India confers
constitutional powers upon the Governors to determine the
municipalities area;
(ii) Exercise substantially bears legislation character;
(iii) Constitution does not prescribe adjudicatory procedure
before issuance of such Notification;
(iv) The expression “having regard to” requires due
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consideration of relevant factors but does not require
elaborate findings of individual parameters;
(v) Article 243Q of the Constitution of India intentionally
preserves the flexibility by incorporating the words “or such
other factors as may deem fit”;
(vi) Judicial review confines to examine the legality of the
decision making process and not the policy decision merely
because another view is possible.
[41.1] Keeping in view the aforesaid legal position and upon
consideration of the original files produced before the Court, it
appears that the relevant constitutional factors were, in fact, taken
into account by the competent authority while issuing the
impugned Notification. Merely because each of such factors has not
been expressly reproduced or reflected in the Notification itself
cannot lead to the conclusion that the Notification was issued
without due regard to the considerations contemplated under
Article 243Q(2) of the Constitution of India.
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This Court is of the considered view that the factors
enumerated in Article 243Q(2) are illustrative and not exhaustive.
The legislative intent becomes evident from the use of the
expression, “or such other factors as he may deem fit”, which
assumes considerable significance. The said expression clearly
indicates that the factors specifically enumerated in Article
243Q(2) are not intended to be the sole or exclusive
considerations. On the contrary, the Constitution has consciously
conferred a wide measure of discretion upon the competent
authority to take into consideration such additional or relevant
factors as may, in its opinion, be germane to the decision-making
process.
Viewed from this perspective, Article 243Q(2) confers a
broad constitutional discretion in the matter of classification and
specification of local areas, subject to the authority having due
regard to the relevant considerations. The provision, by its very
nature, is intended to afford sufficient flexibility to the executive in
evaluating the multifaceted considerations involved in determining
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whether a particular area should be constituted as a transitional
area, a smaller urban area or a larger urban area. Consequently, the
omission to expressly enumerate each relevant factor in the
impugned Notification cannot, by itself, vitiate the exercise of
power when the contemporaneous record demonstrates due
application of mind to the constitutional parameters.
[42] Having examined the constitutional scheme, the
statutory provisions and the material placed on record, this Court
now proceeds to consider the individual submissions advanced on
behalf of the respective petitioners.
SUBMISSIONS OF LEARNED SENIOR ADVOCATE MR. MIHIR
JOSHI (SPECIAL CIVIL APPLICATION NO.19474 OF 2023):
So far as the contention raised in paragraph 14.1 of the
petition is concerned, the same does not merit acceptance.
The principal submission is that the impugned Notification
fails to comply with the directions issued by the Division Bench of
this Court in its judgment dated 09.03.2023 rendered in Letters
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Patent Appeal No.1226 of 2022. This contention proceeds on an
erroneous understanding of the said judgment.
The Division Bench had directed the State Government to
undertake the exercise contemplated under Article 243Q(2) of the
Constitution of India by having due regard to the constitutional
factors enumerated therein before issuing any fresh notification.
The directions neither require that every factor must be expressly
reproduced in the notification nor mandate that the notification
should contain an elaborate recital recording the consideration of
each individual factor.
The validity of the exercise undertaken under Article 243Q(2)
is required to be examined from the decision-making process as a
whole and the contemporaneous record forming the basis of such
decision, and not merely from the language employed in the
notification. Once the original record demonstrates that the
competent authority considered the constitutional parameters
before arriving at the requisite satisfaction, the mandate of Article
243Q(2) stands fulfilled. Consequently, the mere omission to
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expressly refer to every factor in the notification cannot lead to the
inference that the earlier directions of this Court have been
breached.
The contention raised in paragraph 14.2 regarding the
alleged absence of effective compliance with Article 243Q(2) is
equally devoid of merit.
The original files placed before this Court unmistakably
demonstrate that, before issuance of the impugned notifications,
the competent authorities had collected and examined relevant
material relating to population, density of population, revenue
generated for local administration, percentage of employment in
non-agricultural activities, existing urban infrastructure,
developmental requirements and other relevant administrative
considerations. Article 243Q(2) obliges the authority to have due
regard to the prescribed factors. It does not require the authority to
record elaborate reasons akin to a quasi-judicial order.
Equally untenable is the submission that the affidavits filed by
the respondents seek to cure an inherent defect in the decision-
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making process. The affidavits merely explain the process already
undertaken and place before the Court the contemporaneous
material which formed the basis of the impugned decision. They
neither introduce fresh grounds nor attempt to supplement an
otherwise invalid action. It is well settled that explanatory affidavits
are permissible for elucidating the factual foundation of an
administrative or legislative action where the contemporaneous
record supports such explanation.
The further contention that exclusion of certain similarly
situated villages renders the exercise arbitrary also deserves
rejection.
Determination of municipal limits necessarily involves
consideration of several local factors, including geographical
contiguity, administrative convenience, future developmental
planning, availability of infrastructure, demographic trends and
other relevant circumstances. Merely because another village has
not been included within the municipal limits cannot, by itself,
establish hostile discrimination or manifest arbitrariness. Unless the
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differentiation is shown to be wholly irrational or based upon
irrelevant considerations, this Court cannot substitute its own
assessment for that of the competent authority in matters involving
legislative policy and local governance.
The submission advanced in paragraph 14.3 founded upon
the expression “having regard to” occurring in Article 243Q(2) is
equally misconceived.
The said expression undoubtedly obliges the competent
authority to consider the constitutional factors specified therein.
However, it cannot be construed to mean that every factor must
necessarily be assigned equal weight or that each individual factor
should independently justify the ultimate decision. The expression
merely requires due consideration of the relevant circumstances
while leaving the ultimate assessment to the constitutional
satisfaction of the Governor acting on the aid and advice of the
Council of Ministers.
The material placed before this Court sufficiently
demonstrates due application of mind to the constitutional
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parameters enumerated under Article 243Q(2). Merely because the
petitioners seek a different appreciation of the material cannot
justify an inference of non-application of mind.
The decisions relied upon by the learned Senior Advocate are
distinguishable both on facts and on the statutory framework
involved therein. None of those authorities lays down that a
notification issued under Article 243Q(2) must itself contain
elaborate reasons or disclose in detail the sufficiency of the material
considered by the executive while exercising constitutional or
legislative powers. On the contrary, those decisions merely reiterate
the obligation to consider the relevant constitutional factors–a
requirement which, in the present case, stands duly satisfied.
The contention raised in paragraph 14.4 regarding the scope
of judicial review also deserves rejection.
Judicial review of a notification issued under Article 243Q(2)
is necessarily limited. The Court is concerned only with examining
whether the constitutional requirements have been observed,
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whether the competent authority has acted within the confines of
law, whether the decision suffers from mala fides, manifest
arbitrariness or consideration of wholly irrelevant material. The
Court is not expected to sit in appeal over the wisdom of the policy
decision or reassess the comparative weight to be assigned to the
relevant factors.
Having examined the original record, this Court finds no
material indicating any constitutional infirmity, mala fides,
arbitrariness or non-application of mind. On the contrary, the
contemporaneous record clearly demonstrates due consideration of
the constitutional parameters before arriving at the satisfaction
contemplated under Article 243Q(2). The petitioners, in substance,
invite this Court to reassess the adequacy of the material
considered by the Government, which falls outside the permissible
limits of judicial review under Article 226 of the Constitution.
The contention raised in paragraph 14.5 that the authorities
merely collected data mechanically without meaningful
consideration is equally unsustainable.
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Collection of relevant data forms the very foundation for
arriving at the constitutional satisfaction contemplated under
Article 243Q(2). The original record reveals that the authorities
obtained information from the concerned departments, analysed
the same with reference to the constitutional parameters and
thereafter processed the proposal through various administrative
levels before placing it before the competent authority for approval.
The allegation that the exercise was predetermined or
constituted a colourable exercise of power is unsupported by any
cogent material. Allegations of mala fides or predetermined
decision-making cannot rest upon conjectures or surmises. No
material has been produced to establish that the constitutional
exercise was reduced to an empty formality or that the authorities
ignored the mandatory constitutional considerations.
It also deserves to be noticed that Article 243Q(2) expressly
permits consideration of “such other factors as he may deem fit”.
The Constitution, therefore, consciously confers sufficient flexibility
upon the executive to evaluate local conditions while deciding
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whether a particular area should be constituted as a municipality or
merged with an existing municipal area. Once the prescribed
constitutional factors, together with other relevant administrative
considerations, have been duly examined, the constitutional
mandate stands fully satisfied.
Accordingly, this Court is satisfied that the impugned
notifications are the outcome of a lawful exercise undertaken
strictly in conformity with Article 243Q(2) of the Constitution of
India. No violation of the constitutional mandate, no arbitrariness,
no non-application of mind and no breach of the earlier directions
issued by this Court has been established. The submissions
advanced by learned Senior Advocate Mr. Mihir Joshi, therefore,
fail and are accordingly rejected.
SUBMISSIONS OF LEARNED ADVOCATE MR. B. Y. MANKAD
(SPECIAL CIVIL APPLICATIONS NOS.15309 OF 2025, 15574 OF
2025 AND 16471 OF 2025):
So far as the contention raised in paragraph 15.1 regarding
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the alleged non-compliance with Article 243Q(2) of the
Constitution of India is concerned, the same has already been dealt
with in the preceding paragraphs and, therefore, does not require
reiteration.
The additional contention that the resolutions dated
02.10.2024 and 30.01.2025 are fabricated and do not bear the
genuine signatures of the concerned Sarpanch also deserves to be
rejected.
Apart from making a bald allegation of fabrication, forgery
and manipulation, the petitioners have failed to produce any
cogent, contemporaneous or reliable material to substantiate such
allegations. No complaint appears to have been lodged before any
competent authority at the relevant point of time, nor have the
petitioners initiated any independent proceedings challenging the
authenticity of the said resolutions before the appropriate forum.
Allegations of fraud, forgery and fabrication are serious in nature
and carry significant civil consequences. Such allegations cannot be
accepted merely on the basis of assertions contained in the
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pleadings. They are required to be established by clear, cogent and
convincing evidence, which is conspicuously absent in the present
case.
Even otherwise, the contemporaneous record indicates that
the State Government proceeded on the basis of official records
forwarded by the competent authorities in the ordinary course of
official business. In exercise of jurisdiction under Article 226 of the
Constitution, this Court cannot undertake a roving enquiry into
disputed questions of fact involving examination of signatures,
genuineness of resolutions or disputed factual controversies
requiring oral evidence.
Reliance placed upon subsequent resolutions allegedly
opposing the proposal for inclusion of the concerned Gram
Panchayats within the municipal limits is equally misconceived.
Firstly, the existence of conflicting resolutions itself
demonstrates the presence of disputed questions of fact, which
cannot conveniently be adjudicated in proceedings under Article
226 of the Constitution.
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Secondly, the views expressed by the Gram Panchayat,
whether supporting or opposing the proposal, do not possess
binding force upon the State Government while exercising
constitutional powers under Article 243Q(2). The constitutional
obligation is to have due regard to the factors enumerated in
Article 243Q(2) before arriving at the requisite satisfaction. The
ultimate constitutional decision regarding constitution, expansion
or alteration of municipal limits remains within the domain of the
Governor acting on the aid and advice of the Council of Ministers.
Consequently, even assuming that objections were submitted
by the concerned Gram Panchayat, the same would not invalidate
the impugned notifications once the competent authority has
considered the relevant material and exercised its constitutional
discretion in accordance with law.
This Court is, therefore, unable to accept the submission that
the impugned notifications stand vitiated merely because the
petitioners dispute the authenticity of certain resolutions or
because subsequent resolutions expressing a contrary view came to
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be passed by the Gram Panchayat.
The contention raised in paragraph 15.2 regarding the
alleged violation of principles of natural justice is equally devoid of
merit.
Neither Article 243Q(2) of the Constitution nor any statutory
provision brought to the notice of this Court mandates grant of an
individual notice or personal hearing to every Gram Panchayat or
every resident before issuance of a notification constituting or
altering municipal limits. The constitutional requirement is
confined to the competent authority having due regard to the
prescribed constitutional factors before arriving at its satisfaction.
The provision does not incorporate the principles of audi alteram
partem as a mandatory precondition for exercise of such
constitutional or legislative power.
The exercise undertaken under Article 243Q(2) is legislative
in character and involves formulation of public policy concerning
local self-government and territorial administration. It is a settled
principle that, unless expressly provided by the Constitution or the
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statute, the principles of natural justice requiring prior notice and
personal hearing ordinarily have no application to legislative action
of general application.
The petitioners, therefore, cannot claim a constitutional right
to be personally heard before issuance of the impugned
notifications.
The record further reveals that the competent authorities had
obtained relevant information from the concerned local bodies and
various governmental departments before initiating the proposal.
Such material was duly considered during the decision-making
process. Therefore, to the extent any consultative exercise was
administratively undertaken, the same stood substantially complied
with.
Merely because the objections submitted by the petitioners
were not accepted or the ultimate decision was not in consonance
with their expectations cannot lead to the conclusion that there was
either absence of consultation or non-application of mind.
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It also deserves to be observed that consultation cannot be
equated with concurrence. Consultation necessarily postulates due
consideration of the views expressed by the concerned authority
before a final decision is taken. It does not oblige the decision-
making authority to accept every suggestion or objection received
during the consultative process. Once the competent authority has
duly considered the relevant material and thereafter exercised its
constitutional discretion, the decision cannot be invalidated merely
because the petitioners disagree with the outcome.
Accordingly, the challenge founded upon alleged violation of
principles of natural justice or absence of effective consultation
deserves rejection.
SUBMISSIONS OF LEARNED ADVOCATE MS. A. K. BHIL
(SPECIAL CIVIL APPLICATION NO.1224 OF 2026):
Contention that while exercising power under Article
243Q(2) of the Constitution of India, the Tribal Advisory Council
was not consulted, as envisaged under Article 244 of the
Constitution of India, is concerned, is misconceived in nature.
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Article 244 undoubtedly provides a special constitutional
framework for the administration of Scheduled Areas and for
safeguarding the interests of Scheduled Tribes. However, neither
Article 244 nor any provision contained in the Fifth Schedule
mandates consultation with the Tribal Advisory Council as a
condition precedent for issuance of a notification under Article
243Q(2) constituting or altering municipal limits.
The functions assigned to the Tribal Advisory Council under
Paragraph 4 of the Fifth Schedule are advisory in nature and arise
in relation to matters concerning the welfare and advancement of
Scheduled Tribes referred to it by the Governor. The Constitution
nowhere provides that every legislative or executive action
affecting an area having a tribal population must necessarily be
preceded by consultation with the Tribal Advisory Council.
In the absence of any constitutional or statutory mandate
requiring such consultation before exercise of powers under Article
243Q(2), this Court cannot read into the constitutional provision
an additional procedural requirement which the Constitution itself
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has consciously omitted.
The further submission that inclusion of lands protected
under Section 73AA of the Gujarat Land Revenue Code within
municipal limits would, by itself, invalidate the impugned
notifications is equally misconceived.
The declaration of an area as a smaller urban area or its
inclusion within municipal limits does not extinguish the statutory
protection otherwise available to tribal lands under the Gujarat
Land Revenue Code or any other enactment governing transfer and
use of such lands. Those statutory safeguards continue to operate
notwithstanding alteration of municipal boundaries unless
expressly modified by competent legislation.
Consequently, the mere inclusion of protected lands within
municipal limits cannot be construed as depriving tribal
landholders of the statutory protections available to them under the
existing legal framework.
The remaining submissions regarding alleged non-compliance
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with Article 243Q(2), absence of valid resolutions, want of consent
of the Panchayats and lack of meaningful consultation have already
been dealt with in the earlier part of this judgment. To avoid
unnecessary repetition, this Court does not propose to re-examine
the same.
SUBMISSIONS OF LEARNED ADVOCATE MR. BHARAT RAO
(SPECIAL CIVIL APPLICATION NO.5138 OF 2026):
The submissions concerning alleged non-compliance with
Article 243Q(2) and absence of meaningful consultation stand
concluded by the findings already recorded hereinabove.
The additional contention that the impugned notifications are
politically motivated and constitute a colourable exercise of power
also deserves rejection.
A plea of mala fides or colourable exercise of power cannot
succeed on the basis of vague allegations or mere suspicion. Except
making general assertions regarding political considerations, the
petitioners have neither impleaded any individual against whom
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mala fides are alleged nor produced any material indicating that the
constitutional decision was influenced by irrelevant or extraneous
considerations. The law is well settled that allegations of mala fides
must be pleaded with specificity and established by cogent
evidence. Such requirements are wholly absent in the present case.
The further submission regarding inadequacy of
municipal infrastructure, financial resources or administrative
preparedness also cannot justify judicial interference.
Assessment of infrastructure, fiscal capacity, developmental
planning and administrative viability falls primarily within the
exclusive domain of the executive and the competent local
authorities. While exercising jurisdiction under Article 226 of the
Constitution, this Court does not sit in appeal over policy decisions
relating to urban governance unless the decision is shown to be
unconstitutional, arbitrary or actuated by mala fides.
The material placed before this Court does not indicate that
the decision to expand the municipal limits suffers from such patent
irrationality or arbitrariness as would warrant interference in
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exercise of judicial review.
Likewise, the apprehension regarding possible future liability
towards municipal taxation or other incidental civil consequences is
wholly misconceived. Municipal taxation is regulated by the
relevant statutory enactments and constitutes an ordinary incident
of municipal administration. Such consequential liabilities cannot
invalidate a notification otherwise issued in conformity with Article
243Q(2) of the Constitution.
Accordingly, the submissions advanced on behalf of learned
Advocate Mr. Bharat Rao also fail and are rejected.
SUBMISSIONS OF LEARNED SENIOR ADVOCATE MR. DHAVAL
VYAS (SPECIAL CIVIL APPLICATION NO.758 OF 2026):
The principal submission advanced by the learned Senior
Advocate is that, in view of Section 7(2) of the Gujarat Panchayats
Act, 1993, consultation with the concerned Gram Panchayat is
mandatory before a village is included within, excluded from, or
ceases to exist by reason of its merger into a Municipality.
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According to the petitioners, such consultation is a condition
precedent to the exercise of powers under Article 243Q(2) of the
Constitution of India. The submission, though attractive at first
blush, cannot be accepted for more than one reason.
At the outset, it is necessary to appreciate the constitutional
and statutory scheme governing the field. Article 243(g) defines the
expression “village” for the purposes of Part IX of the Constitution,
whereas Article 243Q forms part of Part IX-A and deals with the
constitution and classification of Municipalities. Though both
provisions operate within the broader constitutional framework of
local self-government, they occupy distinct fields and serve
different constitutional purposes.
Section 7 of the Gujarat Panchayats Act is the statutory
provision enacted to operationalise Article 243(g) of the
Constitution. Sub-section (1) thereof deals with the initial
specification of a village, whereas sub-section (2) governs
subsequent alteration of village limits, inclusion of any local area
within a village or cesser of a village. It is in that statutory context
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that the Legislature has incorporated a consultative process
requiring consultation with the concerned Taluka Panchayat,
District Panchayat and Village Panchayat before an appropriate
recommendation is made to the Governor.
The consultative requirement contained in Section 7(2),
therefore, is intrinsically linked with the statutory exercise
undertaken for the purposes of defining, altering or extinguishing
the territorial identity of a village under the Panchayats Act read
with Article 243(g) of the Constitution. The present case, however,
stands on an altogether different footing. The impugned
notifications have not been issued in exercise of powers under
Section 7 of the Gujarat Panchayats Act. They have been issued by
invoking the constitutional power contained in Article 243Q(2) of
the Constitution for the purpose of constituting or enlarging
municipal areas.
Significantly, Article 243Q(2), while expressly requiring the
Governor to have due regard to the factors enumerated therein,
does not incorporate any requirement of consultation with the
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concerned Gram Panchayat or any other local authority before
issuance of the notification.The constitutional omission is both
conscious and significant. Where the Constitution itself has
expressly prescribed the factors to be considered while
simultaneously refraining from providing any consultative
procedure, it would not be permissible for the Court to import, by
interpretative process, an additional procedural requirement which
the constitutional provision itself does not contemplate.
It is a settled principle of constitutional interpretation that
Courts may harmoniously construe constitutional and statutory
provisions so as to give effect to both. Equally well settled,
however, is the principle that a statutory provision cannot be
interpreted in a manner which either controls, restricts or enlarges
the scope of a constitutional power unless the Constitution itself so
permits.
If the submission canvassed on behalf of the petitioners is
accepted, Section 7(2) of the Gujarat Panchayats Act would
virtually operate as a limitation upon the constitutional power
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conferred under Article 243Q(2). Such an interpretation would
invert the constitutional hierarchy by permitting a statutory
provision to impose an additional procedural fetter upon the
exercise of a constitutional power. Such a construction is
impermissible. The constitutional power under Article 243Q(2),
therefore, cannot be made subject to a procedural requirement
which finds no place in the constitutional text itself. This does not,
however, mean that the provisions of Section 7 of the Gujarat
Panchayats Act become otiose whenever a village is merged into a
Municipality. Both provisions can, and indeed must, be
harmoniously construed.
Where the competent authority proposes to exercise powers
for the purposes contemplated under Article 243(g) and Section 7
of the Gujarat Panchayats Act, the statutory procedure, including
the consultative requirement prescribed under Section 7(2),
deserves strict compliance. Such consultation constitutes a statutory
safeguard in matters relating to specification, alteration or cesser of
a village under the Panchayats legislation.
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However, where the exercise is undertaken under Article
243Q(2) for the constitution, classification or expansion of a
Municipality, the constitutional provision governs the field. In such
a situation, the eventual consequence that a village ceases to
remain a village is merely incidental to the constitutional exercise
undertaken under Part IX-A. The incidental consequence of a
village ceasing to exist cannot have the effect of importing into
Article 243Q(2) a procedural requirement which the Constitution
has consciously omitted. To hold otherwise would amount to
permitting the statutory procedure under Section 7(2) to override
the constitutional framework contained in Article 243Q(2), which
would be contrary to settled principles governing constitutional
supremacy and harmonious construction.
The argument that meaningful consultation under Section
7(2) necessarily becomes mandatory whenever a village ultimately
ceases to exist by virtue of its merger into a Municipality is,
therefore, liable to be rejected.
The constitutional validity of the exercise undertaken under
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Article 243Q(2) has to be tested with reference to the requirements
expressly contained in that provision itself, namely, whether the
competent authority had due regard to the constitutional factors
enumerated therein before arriving at its satisfaction.
As already discussed in the earlier part of this judgment, the
contemporaneous record clearly demonstrates due consideration of
those constitutional parameters. Once that requirement stands
satisfied, the validity of the impugned notifications cannot be
questioned by importing procedural requirements dehors Article
243Q(2).
Accordingly, this Court is unable to accept the submission
that the consultative procedure envisaged under Section 7(2) of the
Gujarat Panchayats Act constitutes a mandatory precondition for
the exercise of constitutional powers under Article 243Q(2) of the
Constitution of India.
The next submission advanced on behalf of the petitioners is
that, even assuming Section 7(2) of the Gujarat Panchayats Act
applies, the consultation contemplated therein must necessarily be
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with an elected Gram Panchayat constituted under Section 9 of the
Act and not with an Administrator appointed to manage its affairs.
It is, therefore, contended that the report submitted by the
Administrator is non est in the eye of law and that the entire
decision-making process stands vitiated on that count.
This submission also cannot be accepted.
As already discussed hereinabove, Article 243Q(2) of the
Constitution does not, in terms, prescribe any consultative process
before the Governor exercises the constitutional power of
constituting or altering municipal areas. Consequently, the validity
of the impugned notifications cannot be tested on the anvil of an
alleged absence of consultation under Section 7(2) of the Gujarat
Panchayats Act.
Even otherwise, assuming for the sake of argument that the
statutory consultative process is attracted, the contention that
consultation with an Administrator is wholly impermissible does
not commend acceptance.
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At the relevant point of time, the elected body of the
concerned Gram Panchayat was admittedly not in existence. The
affairs of the Gram Panchayat were being lawfully administered by
an Administrator appointed under the provisions of the Gujarat
Panchayats Act. Such an Administrator is not a private individual or
an outsider. He is a statutory functionary entrusted with the
management and administration of the Gram Panchayat during the
interregnum until a duly elected body assumes office.
Any report, recommendation or communication submitted by
such a statutory authority in discharge of his official functions
cannot be disregarded merely because an elected body was not in
existence on the relevant date. To hold otherwise would virtually
suspend governmental functioning during every interregnum
between two elected bodies, a consequence which neither the
Constitution nor the statute contemplates.
More importantly, the contemporaneous record does not
indicate that the report submitted by the Administrator constituted
the sole basis of the impugned decision.
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On the contrary, the original files reveal that the proposal
underwent consideration at multiple administrative levels. Reports
were obtained from the concerned Collector, the Regional
Commissioner, the Directorate of Municipalities and other
competent authorities. Relevant material concerning population,
density of population, revenue generation, urban infrastructure,
developmental potential, geographical contiguity and other
constitutional factors was independently examined before the
proposal ultimately received approval at the highest level of the
State Government.
Viewed in that perspective, the report of the Administrator
constituted only one amongst several materials which weighed with
the competent authority during the decision-making process. Even
assuming any infirmity in such report, the same would not, by
itself, vitiate the entire constitutional exercise when the ultimate
decision is demonstrably founded upon several independent
considerations.
Reliance placed by the learned Senior Advocate upon the
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decision of the Hon’ble Supreme Court reported in 1999(2) SCC
366 also does not advance the case of the petitioners.
There can be no quarrel with the proposition laid down
therein that wherever consultation is statutorily or constitutionally
prescribed, such consultation must be real, effective and
meaningful and not an empty formality. However, the principle of
meaningful consultation cannot be expanded to mean concurrence,
approval or veto. Consultation postulates due consideration of the
views expressed by the consultative body. It does not oblige the
ultimate decision-making authority to accept those views. The
power to decide continues to vest in the authority upon whom the
Constitution or the statute has conferred such jurisdiction.
Therefore, merely because the final decision does not accord
with the views expressed by the local body cannot lead to the
inference that the consultation was illusory or mechanically
undertaken.
In the present case, the contemporaneous record sufficiently
demonstrates that the relevant inputs received from the concerned
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authorities were duly considered before the constitutional
satisfaction contemplated under Article 243Q(2) was arrived at. It
is necessary to bear in mind that the scope of judicial review in
matters of this nature remains confined to examining the legality of
the decision-making process. Once the record discloses
consideration of relevant material by the competent authority, this
Court cannot embark upon an enquiry as to whether greater weight
ought to have been assigned to one report in preference to another
or whether an alternative administrative conclusion would have
been more appropriate.
Such an exercise would amount to substituting judicial
opinion for executive satisfaction, which is impermissible while
exercising jurisdiction under Article 226 of the Constitution.
Having considered the matter in its entirety, this Court is
satisfied that the constitutional exercise undertaken under Article
243Q(2) does not suffer from any procedural illegality,
constitutional infirmity, non-application of mind or failure to
consider the relevant constitutional parameters.
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The challenge founded upon the alleged violation of Section
7(2) of the Gujarat Panchayats Act, the absence of consultation
with an elected Gram Panchayat, the report submitted by the
Administrator and the alleged inadequacy of consultation is,
therefore, devoid of merit and accordingly stands rejected.
SUBMISSIONS OF LEARNED ADVOCATE MR. HARDIK RAWAL
(SPECIAL CIVIL APPLICATION NO.1115 OF 2025):
The principal submission advanced by the learned advocate is
that, before exercising powers under Article 243Q(2) of the
Constitution of India, the State Government ought to have evolved
uniform parameters or objective benchmarks applicable throughout
the State for determining whether a particular area should be
declared as a transitional area, a smaller urban area or merged with
an existing Municipality.
At first blush, the submission appears attractive. However,
upon closer scrutiny, it does not withstand constitutional
examination.
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Neither Article 243Q(2) of the Constitution nor any statutory
provision governing the field prescribes the formulation of uniform
or inflexible criteria applicable across the State. On the contrary,
the constitutional scheme itself indicates that the exercise
contemplated under Article 243Q(2) is essentially contextual and
area-specific.
Urbanisation is not a phenomenon capable of being measured
by a single mathematical formula. The pace and pattern of
development vary substantially from one region to another
depending upon geographical location, industrial growth,
commercial activity, demographic profile, connectivity, availability
of civic infrastructure, environmental conditions and numerous
other local considerations. A metropolitan area cannot be equated
with a border district; a tribal region cannot be assessed on the
same parameters as an industrial corridor; nor can coastal
development be compared with inland urban expansion.
It is precisely for this reason that Article 243Q(2), after
enumerating certain relevant factors, consciously employs the
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expression “or such other factors as he may deem fit.” The
incorporation of the said expression is of considerable
constitutional significance. It unmistakably demonstrates that the
factors specifically enumerated are illustrative and not exhaustive,
and that the Constitution deliberately confers a wide measure of
discretion upon the competent authority to take into account such
additional considerations as may be relevant in the peculiar facts of
each case.
Acceptance of the petitioners’ submission would virtually
require this Court to legislate by prescribing rigid and uniform
benchmarks where the Constitution itself has consciously provided
flexibility. Such an exercise would amount to rewriting Article
243Q(2), which is plainly impermissible while exercising the power
of judicial review.
Once the Constitution has vested the Governor, acting on the
aid and advice of the Council of Ministers, with the discretion to
evaluate the relevant constitutional and administrative factors, this
Court cannot substitute its own standards or evolve additional
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conditions not contemplated by the constitutional provision itself.
It also deserves to be emphasised that judicial review under
Article 226 is directed against the legality of the decision-making
process and not against the merits or wisdom of the ultimate policy
decision. Unless the exercise is shown to suffer from constitutional
infirmity, manifest arbitrariness, mala fides or consideration of
wholly irrelevant factors, the Court would not be justified in
interfering merely because another view is possible.
This Court has carefully examined the original files relating to
each of the impugned notifications. The contemporaneous record
reveals that the proposal for expansion of the municipal limits
underwent consideration at various administrative levels before the
final decision was taken. Reports and opinions were called for from
the concerned Collectors, Mamlatdars, Chief Officers, Regional
Commissioners, the Directorate of Municipalities and other
competent authorities. The authorities examined village-wise data
relating to population, density of population, extent of
urbanisation, projected urban growth, revenue generation,
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economic significance, geographical proximity, availability of civic
infrastructure and other relevant constitutional factors before
making their respective recommendations.
The original files further indicate that the proposal was
processed through the established administrative hierarchy and
ultimately placed before the competent constitutional authority for
approval. The decision, therefore, cannot be characterised as
arbitrary, mechanical or unsupported by relevant material. On the
contrary, the record reflects a comprehensive and structured
decision-making process involving due deliberation at every stage.
In these circumstances, this Court is satisfied that the
constitutional satisfaction contemplated under Article 243Q(2) was
arrived at only after due consideration of the relevant
constitutional and administrative parameters. No material has been
placed before this Court to demonstrate that the decision-making
process was arbitrary, irrational or vitiated by non-application of
mind.
Accordingly, the submissions advanced by learned Advocate
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Mr. Hardik Rawal do not merit acceptance and are rejected.
SUBMISSIONS OF LEARNED SENIOR ADVOCATE MR. SHALIN
MEHTA AND LEARNED ADVOCATES MR. SUBODH KUMUD AND
MR. PRAKASH PANDYA:
The submissions advanced by the learned Senior Advocate
Mr. Shalin Mehta and the learned advocates Mr. Subodh Kumud
and Mr. Prakash Pandya substantially overlap with the contentions
already dealt with in the preceding paragraphs.
This Court has already examined in detail the scope and
ambit of Article 243Q(2) of the Constitution, the nature of the
constitutional satisfaction required thereunder, the extent of
judicial review, the requirement of consultation, the applicability of
Section 7 of the Gujarat Panchayats Act and the other allied
constitutional issues raised on behalf of the petitioners.
Since the submissions advanced on behalf of the aforesaid
learned counsel do not raise any distinct question of law requiring
independent consideration, this Court does not propose to deal
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with them separately in order to avoid unnecessary repetition.
Suffice it to observe that for the reasons already recorded
hereinabove, none of the said submissions merits acceptance.
[43] Apart from the conclusions recorded on the merits of
the controversy, this Court is also of the considered opinion that
the present petitions do not deserve to be entertained in exercise of
the extraordinary jurisdiction under Article 226 of the Constitution
of India for an additional and equally significant reason.
The jurisdiction conferred upon the High Court under Article
226 is essentially discretionary, equitable and intended to advance
the cause of justice. The Court is required to examine whether the
grant of relief would advance the larger public interest or, on the
contrary, result in greater public inconvenience, administrative
uncertainty or manifest injustice.
In exercising its discretionary jurisdiction, the Court is
required to balance competing public interests and take into
consideration the practical consequences of the relief sought.
Where the grant of relief is likely to unsettle a settled constitutional
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or administrative position, disturb rights which have intervened in
the meantime, or result in disproportionate public prejudice, the
Court would be justified in declining relief notwithstanding the
existence of an arguable legal grievance.
In the present case, it is an undisputed position that, pursuant
to the impugned notifications, the concerned municipal areas have
already been constituted. Consequent thereto, elections have been
conducted by the competent constitutional authorities in
accordance with law. Elected Councillors have assumed office;
Municipal Councils have been duly constituted and have
commenced discharging their statutory and constitutional
functions. The municipal administration has become fully
operational and governance is presently being carried on on the
basis of the altered municipal limits. Financial allocations,
administrative arrangements, developmental planning and
statutory functions have also proceeded on the basis of the existing
municipal structure.
The impugned notifications have, therefore, long ceased to
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remain mere executive or administrative instruments. They have
culminated into a constitutional and administrative reality upon
which subsequent constitutional, statutory and administrative
actions have been founded.
[43.1] In these circumstances, setting aside the impugned
notifications at this stage would have consequences extending far
beyond the parties presently before the Court. Such an exercise
would not merely invalidate an executive decision; it would
unsettle an electoral process already concluded, dislodge duly
elected local self-government institutions, disrupt an existing
administrative framework and create uncertainty in municipal
governance affecting a large body of citizens who are not parties to
the present proceedings.
The inevitable consequence would be the creation of an
administrative vacuum, uncertainty in civic administration and
avoidable disruption of public governance. Such consequences
would be wholly disproportionate to the relief sought and would
not subserve the larger public interest.
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The Court cannot overlook the fact that valuable rights have
intervened in the meantime. Democratic institutions have assumed
office, public administration has been reorganised and innumerable
decisions affecting governance and public administration have
already been taken pursuant to the impugned notifications.
Interference at this stage would inevitably prejudice not merely the
State Government or the elected representatives but also the
residents of the concerned municipal areas who have arranged
their civic affairs on the basis of the existing constitutional
framework.
[43.2] It is a settled principle of constitutional law that a writ
is not issued merely because it is lawful to do so. Relief under
Article 226 is governed not only by considerations of legality but
also by considerations of justice, equity, public interest and the
practical consequences of judicial intervention.
The extraordinary jurisdiction of this Court is intended to
prevent injustice and not to create greater public inconvenience.
Even where a legal infirmity is capable of being demonstrated, the
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Court would be justified in refusing relief where interference would
result in disproportionate public prejudice, unsettle completed
constitutional processes or disturb rights that have accrued in
favour of third parties.
Having regard to the peculiar facts of the present case,
namely, the completion of the electoral process, constitution of the
Municipal Councils, assumption of office by elected representatives,
commencement of municipal administration, creation of third-party
rights and the irreversible administrative consequences that have
ensued, this Court is of the considered opinion that no case is made
out for exercising the discretionary jurisdiction under Article 226 to
quash the impugned notifications.
The balance of justice, equity and larger public interest
overwhelmingly tilts in favour of maintaining the existing
constitutional and administrative arrangement rather than
unsettling a completed democratic process.
Accordingly, this Court declines to issue any prerogative writ
under Article 226 of the Constitution of India.
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[44] For all the aforesaid reasons, all the petitions fail and
are accordingly dismissed. Notice is discharged in each of the
petitions. Interim relief, if any, stands vacated. There shall be no
order as to costs.
[45] Consequently, connected Civil Applications also stand
disposed of.
(NIRAL R. MEHTA,J)
CHANDRESH
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