M.P.THAKKAR, R.C.MANKAD - (1.) A question with regard to the interpretation of sec. 4A of the Gujarat Municipalities Act of 1963 introduced by way of Gujarat Act No. 20 of 1980 which came into force on 24/10/1980 is raised in this petition. The question is whether on a true interpretation of sec. 4A a Nagar Panchayat would automatically become a Municipal Borough so as to be governed by the Gujarat Municipalities Act of 1963. The question has arisen in the context of elections to the Modasa Nagar Panchayat. The petitioner an inhabitant of Modasa has contended that the population of Modasa was less than 25000 previously but that it has exceeded 25000 recently. It is contended that as per annexure A dated 25/11/1980 which is a certificate issued by the Talati-Cum-Mantri of Modasa the population is 30390. In these premises it is contended that it has already become A Municipal Borough having regard to the provisions contained in sec 4A of the Act and that as a result thereof the Panchayat functioning in the local area stands dissolved and a Municipality has to be constituted under the Gujarat Municipalities Act 1963 It is in this backdrop that sec. 4A which reads as under has come up for interpretation : 4 (1) Notwithstanding anything contained in sec. 4 of this Act and sec. 9 of the Gujarat Panchayats Act 1961 the area comprised in every nagar in the State in which the population on the date of the commencement of the Gujarat Panchayats and Municipalities Laws (Amendment) Act 1980 is 25000 or above shall with effect on and from that date be a municipal borough. (2) Notwithstanding anything contained in sec. 4 of this Act and sec. 9 of the Gujarat Panchayats Act 1961 after making such inquiries as may be prescribed by rules made by it and after consulting the nagar panchayat the State Government may by notification in the Official Gazette declare the areas comprised in a nagar and specified in the notification as a municipal borough if the population of the nagar is 25 0 or above: Provided that where the State Government having regard to the geography extent of urban development and such other factors in relation to that area as may be prescribed by it by rules made under this Act and after consulting the nagar panchayat is of the opinion that it is not in public interest so to do it shall be lawful for it not to so declare the area. (3) Notwithstanding anything contained in sec. 4 of this Act and sec. 9 of the Gujarat Panchayats Act 1961 where the State Government having regard to the geography extent of urban development and such other factors in relation to the area comprised in a nagar having population not exceeding 25000 or in relation to the area comprised in a gram as may be prescribed by it by rules made under this Act and after consulting the nagar panchayat or as the case may be the gram panchayat is of the opinion that it is in public interest so to do it may by a like notification declare such area as a municipal borough. xx xx xx xx xx Explanation. For the purposes of this section xx xx xx xx xx (e) population in relation to gram or nagar means the population thereof as ascertained at the last preceding census. Learned counsel for the petitioner contended that upon a bare reading of sec. 4A(1) it would appear that the local area comprised in the Modasa Nagar Panchayat had become a Municipal Borough. If his contention were to prevail the consequence suggested by him might follow and the Panchayat would stand dissolved and a Municipality may have to be constituted under the Act. We are however of the opinion that whether or not the population of Modasa has in fact exceeded 25000 is not relevant having regard to the definition of the term population embodied in clause (e) of the Explanation to sec. 4A. It is in terms provided that the expression population employed by the Legislature in sec. 4A is referable to the population as ascertained in the last preceding census. It is common ground between the parties that the last preceding census took place in 1971. It is also common ground between the parties that in the said census the population of Modasa was less than 25000. Under the circumstances if the expression population contained in sec. 4A (1) were to be interpreted in the light of the aforesaid definition and having regard to the ascertainment made at the last preceding census of 1971 the petition must fail. It must fail because the population did not exceed 25000 at the last preceding census. If the definition clause contained in clause (e) were to be taken into account the actual population of Modasa at a given point of time is not a relevant factor to be considered at all. It stands to reason that the Legislature has defined the expression population in the aforesaid manner. Otherwise the question would arise as to who is to ascertain what is the population of Modasa at a given point of time and whether a reliable ascertainment can be made by a process other than official census. It must also be realised that the population of a town is usually fluid and fluctuating. Who is to evolve the machinery to determine who are the ordinary residents and who are tourists visitors or temporary migrants ? Who is to decide whether the enumeration made is reliable ? It requires a vast organization under proper supervision and control with considerable manpower and financial resources. If the question were to be made dependent on the ascertainment made by some uncertain unknown agency numerous complex problems would arise. We fail to understand how the Talati-cum-Mantri of Modasa is qualified to certify that the population exceeds 25000 and on what basis he has done so. The question would arise whether he had sufficient reliable material at his command for the bald assertion made by him The question regarding the authenticity or the reliability of the ascertainment made by him would also arise. It is therefore understandable that the Legislature in its wisdom has defined the expression population and has made it referable to the last preceding census i. e. the census of 1971. We are therefore unable to accede to the argument advanced on behalf of the petitioner.
(2.) It was sought to be contended that having regard to the wording of sub-sec. (1) of sec. 4A the local area would automatically become a Municipal Borough. Sec. 4A in so far as it is material has been reproduced hereinabove We are unable to uphold the contention that a Panchayat would automatically get converted into a Municipality without anything more by virtue of sec 4A (1) The provision will have to be read understood and interpreted as a whole in a harmonious manner. On an analysis of sec. 4A it is evident that the scheme of the section envisions the issuance of a notification after considering the relevant factors embedded therein for declaring or not declaring it to be a Municipal Borough. To declare on not to declare is the question which has to be faced and answered before any consequence follows in respect of every individual Panchayat. Unless a declaration is made after considering the relevant factors and an informed decision is taken it cannot be said that is has become a Muni- cipal Borough. The legislative design is thus conspicuously visible. Only when such an informed decision is taken in the light of the pertinent considerations in the context of each individual Panchayat it would become a Municipal Borough. Not otherwise. Two conclusions therefore emerge: (1) On a true interpretation of sec. 4A(1)(2)(3) the competent authority or the Government would have to take into consideration several factors including the factors prescribed in the rules for making appropriate enquiries and the opinion of the Nagar Panchayat before taking a decision; and (2) the competent authority has the option of declaring it as a Municipal Borough if the circumstances so demand and of declaring that it would not be a Municipal Borough if the circumstances so warrant.
(3.) So far as the present matter is concerned having regard to the definition contained in clause (e) of the Explanation the matter is beyond the pale of controversy inasmuch as the population of Modasa does not exceed 25000 as per the last preceding census.;