AAR
Advance RulingsCase Briefs

Authority for Advance Ruling [West Bengal]: In an application sought for advance ruling on the question, whether conservancy/solid waste management services is exempted from Goods and Services Tax (‘GST’), the two-member bench of Brajesh Kumar Singh and Joyjit Banik held that the applicant’s supply to the Howrah Municipal Corporation (‘HMC’) for operation and maintenance of capacity portable compactor and hook loader is eligible for exemption from payment of tax vide serial number 3-A of the Notification No. 12/2017 – Central Tax (Rate), if the value of goods involved in such composite supply does not exceed 25% of the value of supply.

The applicant submits that the services provided by them is a “Pure service” which is covered under serial number 3 of the Notification No. 12/2017 of Central Tax (Rate) which exempts “pure service” from GST.

The Authority said that the annual maintenance of compactor and hook loader involves supply of goods like spare parts, therefore, the instant supply is not a pure service.

It further opined that the instant supply is a composite supply of goods and services, and such supply can qualify for exemption vide serial No. 3A of the exemption notification only when the value of goods involved in such composite supply does not exceed 25% of the value of supply, and the same is provided to the Central Government, State Government or Union territory or local authority by way of any activity in relation to any function entrusted to a Panchayat (Article 243G) or Municipality (Article 243W) under the Constitution.

The Authority while ascertaining whether the services provided by the applicant are in relation to any functions entrusted to a municipality under article 243-W of the Constitution, said that the functions entrusted to a municipality as listed in the twelfth schedule include the functions like sanitation conservancy and solid waste management., therefore it was held that the applicant’s services to HMC may be exempted under serial number 3A of the exemption notification if the value of goods involved in such composite supply does not exceed 25% of the value of supply.

[Banchu Das, In re, WBAAR 23 of 2022, decided on 21-10-2022]


Advocate who appeared in this case :

Represented by: Tanmay Ghosh.


*Apoorva Goel, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

   

Patna High Court: In a case relating to the reservation to the backward class category for the post of Councillors in Municipalities, the division bench of Sanjay Karol, CJ. and S. Kumar, J. has held that the reservation of seats for Other Backward Classes (OBC) and Extremely Backward Classes (EBC) in urban local body elections was illegal and directed the State Election Commission to re-notify seats reserved for the OBC in the local polls as general category. In this case, the petitioner wanted the elections to the Municipal Body, to be conducted without providing reservation to the Backward Class Category, for it be in breach of the three-fold test and in the absence of reservation, the seats would be left open for General Category. However, pending adjudication the Election Commission issued a notification fixing the schedule for elections in October, 2022, while the posts of Deputy Chief Councillor of Municipalities are reserved for specified categories.

The Court considered the following question whether the following three-fold test, as elucidated by a bench headed by D.Y. Chandrachud vide order dated 19.09.2022 passed in Sunil Kumar v. State of Bihar Special Leave to Appeal (C) No(s). 16081/2022 stands followed and complied with in the conduct of election to the numerous “Municipalities” in the State of Bihar or not?

The Court referred to the decision in K. Krishna Murthy v. Union of India, (2010) 7 SCC 202 K. and in Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73; wherein it was held that “the triple test/conditions required to be complied with by the State before reserving seats in the local bodies for OBCs are: (1) to set up a dedicated Commission to conduct an empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State; (2) to specify the proportion of reservation required in light of recommendations of the Commission; and (3) reservation shall not exceed aggregate of 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together.

The Court observed that the decision in K. Krishna Murthy v. Union of India, (2010) 7 SCC 202 will not apply to States which had provided reservations in the local bodies only for the OBC category “as a whole”. Further, the concept of EBC, is only a “sub-set” and not an “off-set” of OBC. The primary reservation source, be it for OBC or EBC, flows through Article 243(6) alone, whereby for the “OBC” category, States are enabled to provide reservations through a statutory mechanism, unlike the category of SC and ST, for whom, as the Constitution provides, reservation necessarily must be based on population, regardless of their political backwardness.

Further, while examining whether the three test principles is complied with by the State or not, it has been observed that the Bihar Reservation of Vacancies in Posts and Services (for SC, ST and OBC) Act, 1991 (‘Reservation Act’) was updated to necessarily provide reservation to Economically Backward Class; Backward Class, Women of Backward Classes, including Women from SC; ST and EBC. Further, under the Bihar State Commission for Backward Classes Act, 1993, the State constituted a specific Commission for Backward Classes other than Scheduled Castes and Scheduled Tribes, still further, by virtue of a resolution issued by the Personnel and Administrative Reforms Department, “State Commission for the Most Backward Class” was also constituted. It was further viewed that on examination of the provisions of the Reservation Act, the object and purpose was to only provide reservation in services and the criteria for delineating backwardness is “economic backwardness” and not “political backwardness”.

Further, it was viewed that the scope of inquiry under the Bihar State Commission for Backward Classes Act, 1993 (‘the Commission Act) does not ascertain the political backwardness of persons belonging to the reserved category of OBC, including the EBC for the purpose of representation to the Municipal Bodies, and the scope of Commission is specific and confined to EBC and not OBC as a whole, for the former is only a subset of the latter. Also, the Commission’s primary objective is to prepare a report after examining the reasons for social, educational and economic backwardness Thus, the Court viewed that the need to establish a dedicated Commission or empowering the existing bodies to undertake the task of empirical data collection have not been carried out and the Court cannot suggest the Government to comply with the first prong of the three-fold test.

The Court, while concerning the second prong of the three-fold test, has observed that there is total non-compliance of the mandate of the Constitution Bench Judgment in K. Krishna Murthy (supra) and subsequent judgments in Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73; Suresh Mahajan v. State of M.P., 2022 SCC OnLine SC 589 Rahul Ramesh Wagh v. State of Maharashtra, 2022 SCC OnLine SC 687.

It was also observed that in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 and Pattali Makkal Katchi v. A. Mayilerumperumal, 2022 SCC OnLine SC 386, the concept of subclassification within socially and educationally backward classes, though in the context of Article 16(4), was accepted. Further, in State of Punjab v. Davinder Singh, (2020) 8 SCC 1, it was held that “when the reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the State making subclassification and adopting a distributive justice method so that State largesse does not concentrate in few hands and equal justice to all is provided.” Moreover, the concept of carving out a subset out of a set is also accepted in Vijay Kumar Singh v. State of Bihar, 2006 SCC OnLine Pat 925.

The Court observed that the procedure and pattern adopted by the Government/Election Commission in reserving the seats for the OBC category in all the Municipalities, be it Municipal Corporation, Municipality or Nagar Parishad, is identical. In other words, reservations across the board is provided without evaluating any parameters, except population and judging its overbreadth. Further, the Election Commission issued guidelines for effecting reservation in favour of Backward Class category in various local bodies across the State, based on population alone, without enquiring into the nature and implications of at least political backwardness, also it does not clarify the distinction between OBC and EBC category.

Moreover, the Court viewed that there is no statistical data on the population of EBC category within the Local Bodies, nor is there any data relating to proportional representation of EBC in Local Self Government, particularly in the Municipalities, meeting the requirement of the triple test. Further, the Government, without collecting empirical data or conducting a study about the political backwardness, carried out the exercise of reserving seats purely based on population, and that to for EBC category, and the same cannot be the solitary basis for providing reservations. Thus, the Government has failed to establish compliance of the Second Test Principle of “Specification of the proportion of reservation required in light of the recommendations of the Commission”.

The Court further observed that the third test principle i.e. the statutory limit of reservation of 20% for the OBC category has not been breached, as no material indicates the impugned action of providing reservation through various notifications/circulars/orders to be in excess of the combined upper limit of 50 per cent for all categories/classes/persons.

The Court observed that:

  • The commissions formed under the Backward Classes Act and the Commission for Extremely Backward Classes both were formed for independent and distinct purposes from ascertaining political backwardness.

  • The Lists/Annexures/Schedule/Entries in the Schedule to the Bihar Reservation of Vacancies in Posts and Services (for SC, ST and OBC) Act, 1991, are prepared for the purposes of conferring benefit under Article 15(4) and 16(4) and not Article 243-T of the Constitution of India.

  • The State of Bihar has not undertaken any exercise by which the criteria adopted for providing reservations under socio-economic/ educational/ services have been adopted for the purposes of ensuring electoral representation of OBC, including EBC.

Thus, the Court held that the action of the Government and the Election Commission in reserving the seats for the OBC/EBC category for election to all the municipal bodies in the State of Bihar, governed under the Bihar Municipal Act, 2007 do not comply with the dictum laid down in the above cited judgments; thus illegal. Hence, it directed the State Election Commission to carry out the elections only by immediately re-notifying the seats reserved for the OBC Category treating them as general category seats. Further, it viewed that the State may consider enacting a comprehensive legislation pertaining to reservations in elections to local bodies, urban or rural.

[Sunil Kumar v. State of Bihar, 2022 SCC OnLine Pat 3005, decided on 04.10.2022]


Advocates who appeared in this case :

For the Petitioners: Senior Advocate Mrigank Mauli, Advocate Rajeev Ranjan, Advocate Dayanand Singh, Advocate Nagdeo Choubey, Advocate Dhananjay Kashyap, Advocate Pallavi Trivedi, Senior Advocate Amit Shrivastava (Amicus Curiae), Advocate Awnish Kumar, Advocate Kumar Gaurav, Senior Advocate Amit Shrivastava, Advocate Siddhartha Prasad, Advocate Shashi Shekhar Kumar Prasad, Advocate Prashant Kumar Sinha, Advocate Sunit Kumar, Advocate Sunil Kumar Yadav, Advocate Rajesh Kumar, Advocate Jaishree Kumar, Mr. S.B.K. Mangalam, Advocate Awnish Kumar, Advocate S.B.K. Mangalam, Advocate Sumeet Kumar Singh, Advocate Alka Singh, Advocate Satyendra Prasad Singh, Advocat Anita Kumari, Advocate Krishna Chandra, Advocate Mrigank Mouli, Senior Advocate Avinash Kumar, Advocate Meenakshi Arora, Senior Advocate Y.V. Giri, Senior Advocate Rahul Shyam Bhandari, Advocate Dayanand Singh, Advocate Dhananjay Kashyap, Advocate Pallavi Trivedi, Advocate Nagdeo Choubey, Manohar Prasad Singh, Advocate Samir Kumar Sinha, Advocate Prem Prakash Poddar, Advocate Ravi Ranjan, Advocate Raja Kumar, Advocate Suruchi Priya, Advocate Prabhojot Singh, Advocate Gyanendra Kumar Diwakar, Advocate Pranab Kumar.

For the Respondents: Senior Advocate Vikash Singh, Advocate General Lalit Kishore, Advocate Pawan Kumar, Advocate Anmol Chandan, Advocate Deepika Kaha, Advocate Kumar Shanu, Advocate Ravindra Kumar Priyadarshi, Senior Advocate Rajendra Narain, Advocate Sanjeev Nikesh, Advocate Girish Pandey, Advocate Kinkar Kumar, Advocate Sanjeev Nikesh, Senior Advocate Rajendra Narain, Advocate Sanjeev Nikesh, Advocate Girish Pandey, Additional Advocate General Yogendra Pd. Sinha, Advocate Kinkar Kumar, Advocate Sanjeev Nikesh, Advocate Subhash Pd. Singh, Senior Advocate Rajendra Narain, Advocate Sanjeev Nikesh, Advocate Girish Pandey, Senior Advocate Vikash Singh, Advocate Genral Lalit Kishore, Advocate Subhash Pd. Singh, Advocate Rabindra Kumar Priyadarshi.

AAR GST
Advance RulingsCase Briefs

   

Authority of Advanced Ruling (Karnataka): The two-member bench of M.P Ravi Prasad and T. Kiran Reddy has ruled that works contract services executed to Public Works Department, for construction of Airport Terminal Building and for development of Greenfield airport is liable to tax at 9 percent GST. Further, the works contract services executed to Karnataka State Police Housing and Infrastructure Corporation Ltd. for construction of High Security prison; Kudala Sangama Development Board (KSDB) for construction of Basava International Center and Museum; Karnataka Residential Educational Institutions Society (KREIS) for Constructions of Residential School Complex are all liable to 9 percent tax.

In this case, the Authority examined whether the Karnataka State Police Housing and Infrastructure Corporation Limited, KSDB and KREIS, to whom the applicant is providing the services, constitute a government authority or entity.

The Authority took note of the notification No. 11/2017 of Central Tax rate that defines Governmental authority as an authority or a board or any other body that is set up by an Act of Parliament or a State Legislature; or established by any government with 90 percent or more participation by way of equity or control to carry out any function entrusted to a Municipality or to a Panchayat, and also defines government entity as an authority or a board or any other body including society, trust, corporation set up by an Act of Parliament or State Legislature or established by any Government with 90 percent or more participation by way of equity or control, to carry out a function entrusted by the central Government, State Government, Union Territory or a Local authority.

The Authority observed that Karnataka State Police Housing and Infrastructure Corporation Limited is a company of the Government of Karnataka incorporated under the Companies Act, 1956 and all the shares of the Company are held by the Government of Karnataka, thus, it qualifies to be considered as a government entity. Further, KSDB was established under the KSDB Act, 1994 to develop and maintain Kudala Sangama Kshetra in Bagalkot district, and more than 90 percent of the board members are from the State Government and all the administrative expenses of the board are covered by the grants given by the State Government. Thus, KSDB qualifies to be considered as a Government Entity.

Moreover, KRIES was formed under the Societies Registration Act to establish, maintain, control and manage residential institutions for the talented and meritorious children belonging to the scheduled caste, scheduled tribes and other backward classes. Further, the Karnataka Government may appoint persons to review the progress of the society and can hold enquiries and give directions, also KRIES has 13 members, and all are from State Government, thus, KRIES qualifies to be considered as a government entity.

The Authority also viewed that the works of construction of Airport Terminal Building /facilities and the work of Development of Airport are the works supplied to State Government. However, the said works for construction of airport terminal building or greenfield airport are predominantly meant for commerce and hence are covered under Entry 3(xii) of notification no.11/2017 of the Central Tax Rate.

[KMV Projects Limited, In re, 2022 SCC OnLine Kar AAR-GST 16, decided on 16.09.2022]


Represented by: Assistant General Manager A. Bhaskar Reddy.

Gujarat High Court
Case BriefsHigh Courts

   

Gujarat High Court: Biren Vaishnav, J. allowed petitions which were filed challenging the awards of the Labour Court ordering reinstatement of the employees of Patan Nagarpalika who had raised the issue of early retirement age.

The respondent (now deceased) who was working with the Patan Nagarpalika had raised an industrial dispute before the Labour Court contending that the stand of the petitioner — Nagarpalika in retiring them at the age of 55 on and from 30-09-2007 is bad. It was his case that he was entitled to continue till the age of 60. The stand of the Municipality before the Labour Court was that the Municipality had power to retire a municipal servant at any time on or after he attains the age of 55 years on giving him three months’ notice according to Rule 5 of the Rules framed under Section 271 of the Gujarat Municipalities Act, 1963. The Labour Court had allowed the petitions and ordered reinstatement.

The Court held that it was within the powers of the municipality in exercise of powers under Section 271 of Gujarat Municipalities Act, 1963 to frame rules. Proviso to Rule 5 indicates that the action can be taken by a municipality against an employee where employee reaches the age of superannuation. This, of course, is subject to he being given three months notice and notice pay in lieu thereof.

Relying on the decision of a Division Bench of Gujarat High Court in context of the same municipality dated 03-03-2020 rendered in Special Civil Application Nos. 22332 of 2005, the Court affirmed that the section gives specific powers to make rules and the operation of Rule 5 and consequential retirement was held valid. The petitions were allowed finding that there was sufficient compliance of Rule 5, inasmuch as, notice of three months was given.

[Chief Officer v. Solanki Kanubhai Danabhai (deceased), R/Special Civil Application No. 1697 of 2020, decided on 27-06-2022]


Advocates who appeared in this case :

Ms Dhara Shah, Advocate, for the Petitioner 1;

Mr Prabhakar Upadyay, Advocate, for the Respondent 1.


*Suchita Shukla, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Ritu Raj Awasthi CJ. and S. R Krishna Kumar JJ. issued directions regarding setting up of solid waste management units after expert opinion from concerned authorities.

The instant writ petition was filed under Articles 226 and 227 of the Constitution of India praying to issue writ in the nature of mandamus or any other appropriate writ directing the respondent authorities to shift the location identified for setting up solid waste management unit of Somanahalli Grama Panchayat of Amabigarahalli village of Mandya district.

Counsel for petitioners submitted that the location of the site for solid waste management is not at all proper and correct. It is submitted that it is very much near to the river and as such, there is strong apprehension that the solid waste dump at the proposed site may pollute the river. It is also submitted that nearby there are temples and as such, it may affect the religious sentiments of the people visiting the temples. It may also cause environmental pollution and health hazards for the people living nearby the area to the site. The petitioners who are said to be the residents of the area have raised the grievance but, it has not been considered by the Authorities concerned.

The Court observed that it is for the concerning Authorities to find out the most suitable place for the establishment of the solid waste management unit. The impact of dumping of solid waste is to be kept in mind while deciding the location of the site. It shall not affect the residents of the area and the environment at large.

The Court held “We, therefore, dispose of this writ petition with the observation that the petitioners may raise their grievance by way of fresh representation within a period of ten days from today before respondent no. 4- Deputy Commissioner, DC office, Mandya District, who may look into the matter and if need be , take an expert opinion, and pass appropriate orders in accordance with law expeditiously, say, within a period of six weeks from the date of certified copy of this order along with the representation is placed before him.”[A B Devaraju v. State of Karnataka, WP No. 6386 of 2022, decided on 29-03-2022]

Appearances

For petitioner- Sri Sharath S Gowda

For respondent- G V Shashi Kumar


Arunima Bose, Editorial Assistant has reported this brief. 

Case Briefs

Supreme Court: The Division Bench of L. Nageswara Rao and S. Ravindra Bhat*, JJ., dismisses the appeal initiated by the accused contractors in Integrated Housing and Slum Development corruption case. The Bench observed,

“The constructions, according to the reports, were sub-standard – in respect of 100 such houses, so severe that the units were unusable. The main objective of providing housing to 1206 eligible and deserving families remains unfulfilled despite expenditure of substantial amounts.”

Factual Fulcrum

The criminal Public Interest Litigations were filed by the respondents seeking directions to the Union of India, the State of Maharashtra, the Maharashtra Housing and Urban Development Authority (MHADA) and state officials to initiate criminal proceedings against the responsible officers and office bearers of Municipal Council, Naldurg and the contractors concerned for misappropriation of government funds in implementation of the housing scheme in the municipality.

An Integrated Housing and Slum Development Programme (IHSDP) was initiated by the Union Government through the State Government, under the “Jawaharlal Nehru National Urban Renewal Mission” for providing basic services to the urban poor including affordable prices, improved housing, water supply, sanitation, wherein the Maharashtra Government had appointed MHADA as the nodal agency.

The petitioners-respondents alleged that the quality of work carried out by the appellants was very poor and the officials (i.e. MHADA, municipality, etc.) did not inspect or supervise the work, and did not submit the quarterly reports as required under the scheme. It was submitted that the municipality diverted funds meant for the said development project, for other works as the observation made by technical team showed that the municipal council made an excess payment of Rs. 2,43,79,017/- to the contractors as compared to the work done. The allegations were also made with regard to failure to complete the project, and various other omissions were highlighted.

Findings of the High Court

Observing the dereliction of duties on the part of the authorities and certain other irregularities, the High Court had directed the Divisional Commissioner to take actions to its logical end as expeditiously as possible. Pursuant to the direction of the High Court and the report of the technical team the Collector directed the Municipal Council to recover the excess amount paid to the contractors, and blacklist them from Government work, to initiate criminal prosecution against the person(s) who had committed the irregularities, and lastly allot the repairable houses.

Analysis and Conclusion

Noticing that the appellants were all involved as persons or authorized individuals, acting on behalf of entities that were awarded the contract of construction and completion of the housing units, pursuant to the scheme, and that the spot inspection report alleged that they had not performed their task, the made the following observations:

Effect of Delay in Giving Reasoning of the Judgment by the High Court

Rejecting the first grievance of the appellants that the reasoning for the impugned judgment was given and published long after its operative portion was pronounced, i.e. a year and over three months which had prejudiced their case, the Bench stated that though it is clear that the High Court’s order, against which an aggrieved litigant has a right to approach in appeal, under special leave jurisdiction should contain reasons without which it would be well-nigh impossible to exercise that right of seeking special leave, to that extent, the appellants’ grievance was held to be justified, however, the Bench denied to hold that the absence of reasons struck at the legitimacy of the impugned judgment. The Bench stated,

“…prejudice stood off-set with the interim orders of this court, which recognized the piquancy of the situation, and directed stay of further action against the appellants.”

However, the Bench deprecated the High Court’s conduct in not furnishing reasons, either at the time of pronouncement of the operative part of the judgment, or before the commencement of the next working day (of the court).

Motive of PIL

The appellant’s next challenge to the impugned judgment emphasized the need to keep out “busybodies” who “have no interest in matters of public interest” on the ground that the petitioners-respondents had personal motive as they were former Councillors of the municipality. Rejecting the contention of the appellants, the Bench expressed,

“The cause espoused by the said individuals was undoubtedly one of public interest, because it concerned housing for the economically disadvantaged sections of society, in such great numbers.”

The scheme was meant to benefit thousands of persons, and over a thousand housing units were to be constructed and allotted to the beneficiaries. Therefore, in view of the inquiries and the reports, the Bench held that the initiation of public interest proceedings was justified even if the public interest litigants’ motives were ambiguous, or not immediately bona fide, that could not have led to dismissal of the writ petition, before the High Court.

Right to be Heard

Lastly, rejecting the main arguments of the appellants that criminal proceedings had been initiated against them even though they were not heard in the public interest proceedings, and that being adverse to them the judgment was vitiated on account of their non-participation, the Bench opined that the High Court disposed of the PILs directing the Divisional Commissioner to take appropriate steps to its logical end as expeditiously as possible, making it evident that the High Court did not by itself direct initiation of investigation nor did it direct registration of an FIR, hence, the appellants were not required to be on party array. The Bench emphasised,

“Whilst the reasoning for the impugned judgment was undoubtedly published after a long and unexplained delay, the effect of its operative directions was not to per se prosecute.”

Moreover, the constructions were sub-standard – in respect of 100 such houses, so severe that the units were unusable and dilapidated which rendered the main objective of providing housing to 1206 eligible and deserving families unfulfilled despite expenditure of substantial amounts.

Hence, rejecting the argument of the appellants that they ought to have been heard even before action was initiated as unsound, since, according to the decision of the Constitutional Bench in Lalita Kumari v. Govt. of U.P., if there are allegations with respect to commission of cognizable offences, brought to the notice of the police authorities, ordinarily an FIR has to be lodged.

Verdict

Lastly, noticing that High Court did not comment on whether the allegations were true or whether the submissions on behalf of the petitioners justified their conduct or omission, and that the FIR was registered by the police following the imperative nature of the law declared in Lalita Kumari where it was held that a preliminary enquiry ordinarily is to be eschewed whenever cognizable offences are reported, the Bench dismissed the appeals.

[Shaikh Ansar Ahmad Md. Husain v. State of Maharashtra, 2021 SCC OnLine SC 867, decided on 05-10-2021]

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Kamini Sharma, Editorial Assistant has put this report together 

_________________________________________________________________________

Appearance by:

For the Appellants: Shyam Divan, Senior Advocate


*Judgment by: Justice S. Ravindra Bhat 

Know Thy Judge| Justice S. Ravindra Bhat

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Sandeep Sharma, JJ., while dismissing the present petition upon lack of merits said, “A writ of Mandamus can be issued only when there is a legal right that the parties asking for the writ to compel the performance of statutory duties cast upon the authorities.”

 Background

The present petition was filed to seek a writ of mandamus, directing the respondents to consider the issue of creation of bifurcation and re-organization of new Gram Sabha and Gram Panchayat, in order to facilitate the development work of villages and ensure necessary facilities to all. Prayer was also sought to grant the said writ on the ground that the population of villages as mentioned under the petition, exceeded 2700 and proper regulation/management is only permissible if the aforementioned residents are uniformly divided.

 Observation

The Court reproduced Section 3 of the Himachal Pradesh Panchayati Raj Act, 1994, which reads as hereunder;

Section 3 Declaration of Sabha area -(1) The Government may, by notification, declare any village or group of contiguous villages with a population of not less than one thousand and not more than five thousand to constitute one or more Sabha areas for the purposes of this act and also specify its headquarter:

Provided that in a Scheduled area the Government may by order declare any village or group of contiguous villages with a population of less than one thousand to constitute a

Sabha area:

Provided further that the Government may, after having due regard of the geographical location, lack of means of transport and communication and administrative convenience, declare an area comprising a village or group of contiguous villages having a population either less than one thousand or more than five thousand to constitute a Sabha area.

(2) The Government may, at the request of the Gram Sabha concerned or otherwise, and after previous publication of a proposal by a notification, at any time –

(a) Increase any Sabha area by including within such Sabha area any village or group of villages

(b) Diminish any Sabha area by excluding from such Sabha area any village or group of villages

(c) Alter the headquarter of any Sabha area

(d) Alter the name of any Sabha area

(e) Declare that any area shall cease to be a Sabha area

2-A When on account of the reason that the Sabha area is, during the term of the Gram Panchayat, increased or diminished or ceased under sub-section (2), the increase or diminution or cessation of the Sabha area shall not affect the term of the office bearers of Gram Panchayat, till the expiration of the duration of the Gram Panchayat specified in sub-section (1) of section 120 or its dissolution under section 140 of this Act.

(3) If the whole of the Sabha area is included in a municipality, the Sabha area shall cease to exist and its assets and liabilities shall in the manner prescribed be disposed of.

Reliance was further placed on other recent judgments by this Court, in CWP No. 4602 of 2020 titled Ratti Ram v. State of H.P., CWP No. 4118 of 2020 titled Bihari Lal v. State of H.P. and CWP No. 3999 of 2020 titled Joginder Singh decided on 16-12-2020.

Decision

Dismissing the present petition, the Court said, “…the issue, as raised in this petition, is not justifiable as no mandamus can be sought for bifurcation of Gram Panchayat(s) under Article 226 of the Constitution at the instance of an individual.”[Dharam Pal v. State of HP, 2020 SCC OnLine HP 3094, decided on 18-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Chhattisgarh High Court
Case BriefsHigh Courts

Chhatisgarh High Court: P. Sam Koshy, J. quashed the impugned orders/resolutions being contrary to law.

The facts of the case are that the petitioner company is the largest coal-producing company of India having 100% shares vested with the Government of India, having mines spread over different districts of the State. The State Government in the exercise of powers conferred under the relevant Act has framed Rules i.e. “Terminal Tax (Assessment and Collection) on Goods Exported From MP/CG Municipal Limit Rules, 1996 to regulate the assessment and collection of terminal tax on goods, which shall be exported from within the limits of the Municipal Corporation, the Municipal Council and the concerned Nagar Panchayat. The Schedule appended to the rules prescribes the rate at which the terminal taxes is to be levied as also the maximum rate leviable. The respondents-Municipal Corporation, Municipality, Nagar Panchayat have purportedly enhanced the terminal tax exercising the powers under Section 133 of the Municipal Corporation Act of 1956 or Section 355 read with Clause 16 of Sub-section (1) of Sections 127 & 129 of the Municipal Act of 1961. Hence the instant petition was filed challenging the said enhancement.

Counsel for the petitioners, Shailendra Shukla submitted that the authorities are not empowered to issue such orders in the teeth of the Rules framed by the State Government in 1996, under which there is already a schedule prescribed with the maximum rate also prescribed. He further submitted that any change to the rate of tax would have been only by the State Government that too by amending the provisions of Rules of 1996 and the schedule appended therein. He further stated that the Constitution of India by the 74th amendment added Article 243-X providing power to impose tax and raise funds.

Counsel for the respondents, B.D. Guru opposed the contentions highlighting the different provisions of the Municipal Corporation Act as also the Municipal Act.

The Court relied on a Supreme Court judgment titled ACC Ltd. v. State of M.P., (2005) 5 SCC 347, and held that the Municipality is only entitled to recover the export tax at the rate prescribed by the State Government and not as claimed by the municipality. It cannot impose a tax on its own as the imposition is always subject to the approval of the State Government.

In view of the above, petition is allowed and impugned orders set aside. [South Eastern Coalfields Ltd., v. State of Chhattisgarh, 2020 SCC OnLine Chh 148, decided on 17-07-2020]


*Arunima Bose, Editorial Assistant has put this story together

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: The instant writ petition entertained by Sujit Narayan Prasad, J. was filed under Article 226 of the Constitution of India for quashing the Memo issued by the respondent whereby the water reservoirs in the urban area has been directed to be handed over in favor of the municipality.

The petitioner had contended that certain water reservoirs had been settled in favor of the petitioner for the year 2016-17 and in terms of the contract the petitioner carried out the fishing work in the aforesaid tanks but all of a sudden the impugned decision was taken on by which the tank was transferred in favor of the municipality therefore, the ground was raised that when the terms and conditions of the contract was in subsistence during the course when the impugned order was passed, the same cannot be done in the course of subsistence period of the contract, hence the impugned order was not sustainable in the eyes of law.

Counsel for the State-respondent Gautam Kumar, submitted that the impugned decision was taken in terms of the Cabinet decision which was issued by the appropriate authorities and the said Cabinet decision was taken in pursuance to the provision of Section 126 of the Jharkhand Municipal Act, 2011 wherein the provision was made about vesting of property which includes public tanks/reservoirs also, therefore, if the Cabinet took a decision to follow the statue and in terms thereof any decision which was taken, the same cannot be interfered with.

The Court observed that the tanks in question were settled in favor of the petitioner in the year 2016-17 by the order in that regard by the competent authority but in course of subsistence period of the contract the impugned decision was taken to transfer the tanks in favor of the municipality by taking aid of the decision by the State of Jharkhand. It further found no dispute about the settled position of law that if any Act has been acted upon, it was to be followed in its strict sense and there cannot be any deviation otherwise it will be said that the rule of law was not prevailing. It held, “It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect.” Hence, the petition was dismissed.[Somath Haldar v. State of Jharkhand, 2019 SCC OnLine Jhar 683, decided on 13-06-2019]

Case BriefsSupreme Court

Supreme Court: In the matter where in all 869 leases were alleged to be given by the Municipality to different persons without authority of law and on which constructions have been put up without any formal lease executed in favour of concerned persons/occupants nor the approval of the State Government in terms of Section 65 of Gujarat Municipality Act, 1963, was obtained, the Court said that municipality is a trustee and must, therefore, ensure that public streets are not encroached upon.

The Bench of T.S. Thakur, CJ and A.M. Khanwilkar, J held that the fact that a resolution has been passed by the Executive Committee of the Municipality or a letter of allotment is issued by the Municipality, cannot legitimize the occupation of a public property in absence of a formal lease deed executed in that behalf and more so in respect of a land falling within the public street no right can enure in favour of the allottees/occupants of the structure on a public property, in respect of which no formal lease deed has been executed and that too when no prior approval of the State Government for such allotment and grant of lease has been obtained by the Municipality.

It was alleged that he direction given by the Gujarat High Court to take possession of the concerned property and remove illegal occupants therefrom and to demolish the unauthorized structure was in derogation of the Section 258 of the Gujarat Municipalities Act, 1963. Rejecting the said contention the Court said that municipality is obliged to restore the public property as it had originally existed, if such direction is issued by the Collector and hence, the High Court’s direction is not in derogation of the said provision; and particularly when the Collector is expected to exercise that power by following due process.

Directing the removal of the encroachment, the Court said that considering the fact that some of the structures may be in existence for quite some time and have been tolerated for all these years, it may warrant a humane approach to be taken by the State Authorities. For that the State Government must evolve a comprehensive policy, if already not in existence; and thereafter the Collector may proceed to take action in respect of such unauthorized occupation and encroachment on the public property.

However, if a new policy is required to be formulated, it may provide for rehabilitation of the unauthorized occupants to alternative location, if the unauthorized structure in occupation of a given person has been tolerated for quite some time or has been erected before the cut off date to be specified in that regard. If the structure has been erected after the cut off date, no right of rehabilitation would enure to the occupant(s) of the unauthorized structure(s) on the public property; and such structure(s), in any case will have to be removed in terms of the direction given by the High Court. The State Government may formulate an appropriate policy within six months from today, if already not in existence. [Asikali Akbarali Gilani v. Nasirhusain Mahebubbhai Chauhan, 2016 SCC OnLine SC 1122, decided on 07.10.2016]