KAMAL JORAversusSTATE OF UTTARAKHAND & ANR.

                        [2013) 8 S.C.R. 40


A                         KAMAL JORA
                                 v.
               STATE OF UTTARAKHAND & ANR.
                 (Civil Appeal No. 4835 of 2013)

B                         JULY 01, 2013

        [A.K. PATNAIK AND GYAN SUDHA MISRA, JJ.]

        Municipality:

C      Uttar Pradesh Municipal Corporations Act, 1959 - ss.3(2)
  and 8-AA - Dissolution of Municipal Council for its
  upgradation to Municipal Corporation - Without giving
  opportunity of hearing to the Municipal Council - After
  direction of the Court, State invited objections for the same
D by Public Notice - Municipal Council dissolved - Dissolution
  challenged by the Chairman of the Council on the ground that
  before dissolution, opportunity of hearing not given to the
  Municipal Council - Held: Dissolution of the Council was not
  without hearing the Council as several Municipal Councilors
E were heard before the dissolution - Constitution of India, 1950
  - Article 2430.

      The State Government by a Notification dissolved the
  Municipal Council, in exercise of powers uls. 3(2) of Uttar
F Pradesh Municipal Corporations Act, 1959· as applicable
  to the State of Uttarakhand r/w. Art.243Q(2) of the
  Constitution and s. SAA of the Act. When the Notification
  was challenged by the appellant on the ground that
  opportunity of hearing was not given to the Municipal
G Council before its dissolution, the Court held that
  opportunity of hearing should have been given and
  quashed the Notification. Thereafter, the State issued
  public notice inviting objection to conversion of the

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KAMAL JORA v. STATE OF UTTARAKHAND & ANR.               41


Municipal Council to Municipal Corporation. Date of           A
hearing was also fixed and several Municipal Councilors
were heard. Subsequently, the State issued two
Notifications and declared conversion of the Municipal
Council to Municipal Corporation and dissolution of the
Municipal Council. The appellant again challenged the         B
two Notifications, by filing writ petition, contending that
no hearing was granted to the Municipal Council before
its dissolution. Single Judge of High Court quashed the
two Notifications. Appeal against the same was allowed
by the Division Bench of High Court holding that              c
opportunity of hearing was given to all the persons.

    In appeal to this Court, the appellant contended that
though objections were invited through public notice, but
no hearing was given to the Municipal Council and yet         0
the Municipal Council was dissolved.

    The State contended that dissolution of Municipal
Council for upgradation to Municipal Corporation cannot
be termed as dissolution as envisaged under Article
                                                              E
243U of the Constitution and the proviso to Article 243U
is not violated, if no opportunity of hearing is given
before such dissolution.

    Dismissing the appeal, the Court
                                                              F
     HELD: 1. The earlier judgment of the Division Bench
of the High Court holding that an opportunity of hearing
must be given to persons likely to be affected by
dissolution of the Municipal Council, though not binding
on this Court is binding on the parties because of the        G
principle of res judicata. The State Government being the
appellant in the aforesaid Special Appeal, cannot now
contend that a hearing was not required to be granted
to the Municipal Council, before it issued the two
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    42      SUPREME COURT REPORTS              [2013] 8 S.C.R.


A   notifications dissolving the Municipality and appointing
    an Administrator. [Para 11] [49-B-D]

        2. However, the State Government had provided an
    opportunity of hearing to the objectors on their
B   respective objections and amongst the objectors there
    were several Municipal Councilors. Hence, the appellant,
    who was the Chairman of the Municipal Council, could
    have also participated in the hearing in support of his
    objections. Thus, there is no infirmity in the impugned
c   judgment of the Division Bench of the High Court that
    an opportunity- of hearing was actually given to all
    persons likely to be affected by the two notifications.
    [Para 12) [51-A-D]

         Mohinder Singh Gill a,nd Anr. v. The Chief Election
D
    Commissioner, New Delhi and Ors. (1978) 1SCC405: 1978
    (2) SCR 272; S.L. Kapoor v. Jagmohan and Ors. (1980) 4
    SCC 379: 1981 (1) SCR 746; Swadeshi Cotton Mills v. Union
    of India (1981) 1 SCC 664: 1981 (2) SCR 533; State of
    Maharashtra and Ors. v. Jalgaon Municipal Council and Ors.
E   (2003) 9 SCC 731: 2003 (1) SCR 1112 - referred to.

                        Case Law Reference:

         1978 (2) SCR 272        referred to          Para 8
F
         1981 (1) SCR 746        referred to          Para 8

         1981 (2) _SCR 533       referred to          Para 8

         2003 (1) SCR 1112       referred to          Para 10
G
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4835 of 2013.

        From the Judgment and Order dated 21.12.2011 of the
H   High Court of Uttarakhand at Nainital in SA No. 289 of 2011.
    44       SUPREME COURT REPORTS               [2013] 8 S.C.R.


A   administer the areas of Municipal Corporation, Haridwar under
    Section 8-AA of the Act without affording any opportunity of
    hearing or a show cause to the Municipal Council and hence
    the notification dated 20.05.2011 was in clear violation of the
    Constitution of India. By the order dated 09.06.2011, the
B   learned Single Judge, therefore, allowed the writ petition and
    quashed the notification dated 20.05.2011 and directed the
    District Magistrate, Haridwar to handover the charge forthwith
    to the elected representatives of the Haridwar Municipality.

c       4. Aggrieved, the State of Uttarakhand filed Special
  Appeal No.104 of 2011 before the Division Bench of the High
  Court contending that the upgradation of the Municipal Council,
  Haridwar to Municipal Corporation, Haridwar, was done by the
  State Government in accordance with the mandate in Article
D 2430 of the Constitution and the dissolution of the Municipal
  Council, Haridwar was merely a consequence of such an
  upgradation and hence no show cause or opportunity of hearing
  was required to be given to the Municipal Council, Haridwar
  before the dissolution and before appointment of an
E Administrator to administer the areas of the Municipal
  Corporation, Haridwar. The Division Bench of the High Court
  in its judgment dated 23.06.2011, however, held that Section
  8-AA of the Act does not provide for automatic dissolution of
  the Municipal Council on upgradation to a Municipal
F Corporation and since automatic dissolution -of a Municipal
  Council has not been provided in the law, an opportunity of
  hearing should have been given to the persons likely to be
  affected by dissolution of the Municipal Council. The Division
  Bench of the High Court, therefore, upheld the order dated
G 23.06.2011 of the learned Single Judge and dismissed the
  appeal but on the prayer of the learned Advocate General
  stayed the operation of the order dated 23.06.2011 of the
  learned Single Judge for a period of three weeks.

         5. Soon after the judgment dated 23.06.2011 of the
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KAMAL JORA v. STATE OF UTIARAKHAND & ANR.                     43


    Vijay Hansaria, Nagendra Singh, Vishwa Pal Singh for the         A
Appellant.

      Dr. Abhishek Atrey, Brijesh Panchal, Aishverya Shandilya
for the Respondents.
                                                                     B
    The Judgment of the Court was delivered by

    A.K. PATNAIK, J. 1. Leave granted.

     2. This is an appeal by way of special leave under Article
136 of the Constitution against the judgment dated 21.12.2011        C
of the Division Bench of the Uttarakhand High Court in Special
Appeal No.289 of 2011.

Facts of the case
                                                                     D
     3. The relevant facts very briefly are that the appellant was
elected as the Chairman of the Municipal Council, Haridwar,
in May, 2008. When he was functioning as the Chairman of the
Municipal Council, Haridwar a notification was issued on
20.05.2011 by the Government of Uttarakhand notifying that the       E
Governor of Uttarakhand in exercise of powers under Section
3(2) of the Uttar Pradesh Municipal Corporations Act, 1959 (for
short 'the Act') as applicable in Uttarakhand read with Article
2430(2) of the Constitution and Section 8-AA of the Act has
dissolved the Municipal Council, Haridwar, and appointed the         F
District Magistrate, Haridwar, as Administrator for
administering the area of the Municipal Corporation, Haridwar.
The appellant filed Writ Petition No.1031 of 2011 on
20.05.2011 in the High Court of Uttarakhand, challenging the
aforesaid notification mainly on the ground that no opportunity
of hearing was given to the Municipal Council, Haridwar before       G
the notification was issued and the learned Single Judge of the
High Court who heard the writ petition held in his order dated
09.06.2011 that the dissolution of the Municipal Council,
Haridwar was done and the Administrator was appointed to
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    46       SUPREME COURT REPORTS               [2013] 8 S.C.R.


A      6. Aggrieved by these two notifications dated 21.07.2011,
  the appellant again filed Writ Petition (C) No.1533 of 2011,
  contending that no hearing was granted to the Municipal
  Council, Haridwar before the Municipal Council was dissolved
  and the Administrator was appointed for the larger urban area
B of the Municipal Corporation and hence the two notifications
  were liable to be quashed. The learned Single Judge by his
  order dated 15.12.2011 allowed the writ petition and quashed
  the two notifications dated 21.07.2011. Aggrieved, the State
  of Uttarakhand and the District Magistrate, Haridwar filed
c Special Appeal No.289 of 2011 before the Division Bench of
  the High Court and the Division Bench of the High Court held
  in the impugned judgment dated 21.12.2011 that an opportunity
  of being heard was given to all persons who were interested
  in the decision making process of the Municipal Council,
D Haridwar. By the impugned judgment, the Division Bench of the
  High Court therefore allowed the appeal and set aside the order
  of the learned Single Judge and dismissed the writ petition.
  Aggrieved, the appellant has filed this appeal.

E   Contentions of the learned counsel for the parties:

       7. Mr. Vijay Hansaria, learned counsel appearing for the
  appellant, submitted that under Article 243U(1) of the
  Constitution and under Section 10-A of the U.P. Municipalities
  Act, 1916, every Municipality has the right to continue for a
F period of five years from the date of its first meeting unless
  sooner dissolved under any law for the time being in force. He
  submitted that the proviso to Article 243U(1) of the Constitution
  says that a Municipality shall be given a reasonable opportunity
  of being heard before its dissolution. He submitted that the
G learned Single Judge of the High Court in his judgment dated
  09.06.2011 in Writ Petition No.1031 of 2011 and the Division
  Bench of the High Court in its judgment dated 23.06.2011 in
  Special Appeal No.103 of 2011, therefore, held that the
  Municipal Council, Haridwar, was entitled to an opportunity of
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 KAMAL JORA v. STATE OF UTTARAKHAND & ANR.                    45
               [A.K. PATNAIK, J.]

Division Bench of the High Court, the Government of                  A
Uttarakhand issued a public notice dated 29.06.2011 stating
therein that in the opinion of the State Government, the small
urban area of the Municipal Council, Haridwar needs to be
converted into a larger urban area and consequently to
Municipal Corporation, Haridwar. By the public notice dated          B
29.06.2011, the Chairman and the Councilors of Municipal
Council, Haridwar and the entire public residing in the urban
area of the Municipal Council, Haridwar were invited to give
their objections and suggestions. The public notice dated
29.06.2011 also stated that on 13.07.2011, a hearing would           C
be conducted by the Principal Secretary, Urban Department,
Government of Uttarakhand between 1.30 p.m. to 4.00 p.m in
which persons will be given an opportunity of personal hearing
on their objections and suggestions and only thereafter the final
decision will be taken by the State Government. By a                 D
corrigendum dated 08.07.2011 issued by the State
Government, the date of hearing was altered to 16.07.2011. The
appellant filed his objections before the Director of Urban
Development in July, 2011 and also stated in his objection that
he be given a personal hearing on his objections. Thereafter,        E
on 21.07.2011, the Government of Uttarakhand issued two
notifications. In one notification dated 21.07.2011, it was stated
that the Governor was pleased to notify for overall development
of Haridwar city the conversion of existing smaller urban area
into a larger urban area in exercise of powers under Section         F
3(2) of the Act read with Article 2430(2) of the Constitution and
to further notify that the area included in the larger urban area
would be the total of the area of Municipal Corporation,
Haridwar. In the other notification dated 21.07.2011, it was
stated that the Governor has directed under Section 8-AA(1)          G
of the Act that the existing Municipal Council, Haridwar would
stand dissolved from the date of issuance of the notification and
the District Magistrate, Haridwar be appointed the
Administrator for the administration of the larger urban area of
the Municipal Corporation, Haridwar.
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    48       SUPREME COURT REPORTS                [2013] 8 S.C.R.


A   of the Municipal Corporation for the larger urban area, "it is
    expedient" to dissolve the Municipal Council from a specified
    date and to direct that all powers, functions and duties of the
    Corporation shall as from the specified date, be vested in and
    be exercised, performed and discharged by the Administrator.
B   He submitted that there is nothing in the notifications dated
    21.07.2011 of the State Government to show that the State
    Government formed the opinion that it was expedient to
    dissolve the Municipal Council and to appoint the Administrator.

c       10. In reply, Dr. Abhishek Atrey, learned counsel appearing
  for the State of Uttarakhand, on the other hand, submitted,
  relying on the counter affidavit filed on behalf of respondents
  no. 1 and 2 as well as the order dated 19.07.2011 of the
  Government of Uttarakhand annexed to the counter affidavit as
  Annexure-C-1, that the Division Bench of the High Court has
0
  rightly held in the impugned judgment that a personal hearing
  was granted by the public notice dated 29.06.2011 to all
  concerned including the Municipal Council, Haridwar. He cited
  the decision of this Court in State of Maharashtra & Ors. v.
E Jalgaon Municipal Council & Ors. [(2003) 9 SCC 731] in which
  the notification dated 16.10.2001, as amended by the
  notification dated 15.11.2001, dissolving the Jalgaon Municipal
  Council was held to satisfy the requirement of the principles of
  natural justice. He further submitted that in the judgment dated
  26.02.2010 in Nagar Palika Parishad & Ors. v. State of U.P.
F & Ors. (Writ Petition (C) No.56954 of 2009) the Allahabad High
  Court has held that dissolution of a Municipality of a smaller
  urban area for the purpose of upgradation to Municipal
  Corporation of a larger urban area cannot be termed as
  dissolution as envisaged under Article 243U of the Constitution
G and the proviso to Article 243U is not violated if no opportunity
  of hearing is given to the Municipality before such dissolution.
  He submitted that though Special Leave Petition (C) No.13400
  of 2010 was filed against the aforesaid judgment dated
  26.02.201 O of the Allahabad High Court, this Court dismissed
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  KAMAL JORA v. STATE OF UTTARAKHAND & ANR.                    47
                [A.K. PATNAIK, J.]
   hearing before it was dissolved and before the Administrator A
   was appointed by the notification dated 20.05.2011. He
   submitted that after the judgment of the Division Bench of the
   High Court on 23.06.2011, the Government of Uttarakhand
   invited objections/suggestions by a public notice dated
   29.-06.2011, but no hearing was given to the Municipality and 8
   yet the Haridwar Municipality was again dissolved and an
 , Administrator was appointed in its place by the impugned
' notification dated 21.07.2011 of the Government of
   Uttarakhand.
                                                                      c
      8. Mr. Hansaria submitted that it is a settled proposition
 of law that if a statute conferring power on an authority to take
 a decision having civil consequences does not expressly
 prohibit a personal hearing before the decision is taken, the rule
 of fair play requires that an opportunity of personal hearing is 0
 afforded to the persons likely to be affected by the decision. In
 support of this proposition, he cited the decisions in Mohinder
 Singh Gill & Anr. v. The Chief Election Commissioner, New
 Delhi & Ors. [(1978) 1 SCC 405], S.L Kapoor v. Jagmohan
 & Ors. [(1980) 4 SCC 379] and Swadeshi Cotton Mills v. Union E
 of/ndia [(1981) 1 SCC 664]. He submitted that Section 8-AA
 of the Act which empowers the State Government to dissolve
 a Municipal Council for the purpose of constituting a Municipal
 Corporation in its place does not expressly prohibit an
 opportunity of hearing to be given to the Municipal Council F
 before its dissolution and therefore a personal hearing to the
 Municipal Council has to be granted where the State
 Government is of the opinion that the Municipal Council is to
 be dissolved for the purpose of constituting a Municipal
 Corporation in its place.
                                                                      G
      9. Mr. Hansaria next submitted that it will be clear from the
 language of sub-section (1) of Section 8-AA of the Act that
 dissolution of a Municipal Council is to take place only if the
 State Government is of the opinion that until the due constitution
                                                                      H
      KAMAL JORA v. STATE OF UTTARAKHAND & ANR.                  49
                    [A.K. PATNAIK, J.]
     the Special Leave Petition with costs by order dated A
     25.08.2010.

     Findings of the Court

           11. We have considered the submissions of learned B
      counsel for the parties and we are of the opinion that the earlier
      judgment of the Division Bench of the High Court dated
      23.06.2011 holding that an opportunity of hearing must be given
      to persons likely to be affected by dissolution of the Municipal
      Council, Haridwar though not binding on this Court is binding C
      on the parties in Special Appeal No.104 of 2011 in which the
      aforesaid judgment was rendered because of the principle of
      res judicata. The State Government of Uttarakhand was the
      appellant in the aforesaid Special Appeal No.104 of 2011 and
      it cannot therefore now contend that a hearing was not required
      to be granted to the Municipal Council, Haridwar, before it D
\     issued the two notifications dated 21.07.2011 dissolving the
    . Haridwar Municipality and appointing an Administrator.

          12. Hence, the first question that we have to decide is
     whether an opportunity of hearing was granted to the Municipal E
     Council, Haridwar before the two notifications dated 21.7.2011
     were issued dissolving the Haridwar Municipality and appointing
     an administrator under Section 8-AA of the Act. The public
     notice which was issued on 29.06.2011 soon after the judgment
     dated 23.06.2011 of the Division Bench of the High Court in F
     Special Appeal No.104 of 2011 is extracted herein below:

         "Under Section 3 sub-section (2) of Uttar Pradesh
         Municipal Corporation Act, 1959 (U.P. Act No.2 of 1959)
         (as applicable in the State of Uttarakhand) read with Article G
         243 U of Part 2, it is the considered opinion of the State
         Government that smaller Urban Area Nagar Palika
         Parishad, Haridwar be converted into a larger Urban Area
         and consequently into a Municipal Corporation, Haridwar.

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    50       SUPREME COURT REPORTS                   (2013] 8 S.C.R.

                                                '·
A        In view of the above, the Chairmart:,of Nagar Palika
         Parishad, Haridwar, the councilors:Jof Nagar Palika
         Parishad, Haridwar and the entire public who ordinarily
         reside in the said area are invited to give their objections
         and suggestions. The written objections and suggestions
B        should reach the office of Director, Department of Urban
         Development, Uttarakhand 43/6, Mata Mandir Marg
         Dharmpur, Dehradun by 11th July 2011. Any suggestion
         and objection received after the said notified date will not
         be accepted. On the receipt of the written objections and
c        suggestions, a hearing would be done on 13th July 2011
         by Principal Secretary, Urban Development Department,
         Government of Uttarakhand in the office of Director,
         Department of Urban Development, Uttarakhand 43/6,
         Mata Mandir Marg, Dharmpur, Dehradun. The time would
D        be 1.30 P.M. to 4.00 P.M. During the hearing the persons
         would also be given an opportunity of personal hearing.
         After receiving such objections and suggestions and after
         considering the same, the final decision to convert the
         place into a larger Urban Area will be taken."

E It will be clear from the aforesaid public notice dated
  29.06.2011 issued by the Government of Uttarakhand that the
  Chairman of the Haridwar Municipality, the Councilors of
  Haridwar Municipality and the entire public who ordinarily reside
  in the area were invited to give their objections and
F suggestions. It will also be clear from the public notice dated
  29.06.2011 extracted above that on receipt of the written
  objections and suggestions, a hearing was to be conducted on
  13th July 2011 by Principal Secretary, Urban Development
  Department, Government of Uttarakhand between 1.30 p.m. to
G 4.00 p.m. and during the hearing the persons were to be given
  an opportunity of personal hearing on the objections. By a
  subsequent corrigendum the date of hearing was altered to
  16.07.2011. We further find from paragraph 4 of the order
  dated 19.07.2011 annexed to the counter affidavit filed on
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  KAMAL JORA v. STATE OF UTTARAKHAND & ANR.                    51
                [A.K. PATNAIK, J.]

 behalf of respondent Nos. 1 and 2 as Annexure C-1 that the           A -
 Principal Secretary Urban Development Department,
 Government of Uttarakhand has provided an opportunity of
 hearing to the objectors on their respective objections on
 16.07.2011 from 11.00 a.m. to 3.00 p.m. at Kumbh Fair
 Controlling House, Haridwar and amongst the objectors there          B
 were several Municipal Councilors of Haridwar Municipality,
 namely Dinesh Joshi, Rakesh Prajapati, Yashoda Devi, Leela
 Devi, Ashok Sharma, Jagdhir Singh, Nikhil Mehta, Idris Ansari,
 Satya Narayan, Karuna Sharma, Sanjay Sharma, Radhey
 Krishna, Prabha Ghai and Ram Ahuja. Hence, the appellant,            C
 who was the Chairman of the Municipal Council, Haridwar could
 have also participated in the hearing in support of his
 objections. We cannot, therefore, find any infirmity in the
 impugned judgment of the Division Bench of the High Court that
 an opportunity of hearing was actually given to all persons likely   D
 to be affected by the two notifications dated 21.07.2011.

        13. At the time of hearing of this appeal, we were inclined
  to consider the other contention of Mr. Hansaria that the State
  Government must form an opinion that until the due constitution E
  of the Municipal Corporation for an area, "it is expedient" to
. dissolve the Municipal Council from a specified date and to
  direct that all powers, functions and duties of the Corporation
  shall as from the specified date, be vested in and be exercised,
  performed and discharged by the Administrator appointed by F
  the State Government in view of the language of sub-section
  ( 1) of Section 8-AA of the Act. But we find that this ground was
  not raised in the Writ Petition before the High Court nor raised
  in the special leave petition before this Court. We further find
  that pursuant to the two notifications dated 21.07.2011, the G
  elections to the Municipal Corporation have been notified to be
  held and completed by 30.04.2013. Hence, even ifthe appellant
  succeeds on this point, we cannot direct restoration of the
  Haridwar Municipality after the constitution of the Municipal
  Corporation, Haridwar. For these reasons, we refrain from H
    52       SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A   considering this question in this appeal and leave this question
    open to be decided in some other appropriate case.

        14. In the result, we do not find any merit in this appeal and
    we accordingly dismiss the same, but without costs.
B
    K.K.T.                                       Appeal dismissed.