The Gujarat High Court (Ahmedabad Bench) has clarified that a notification issued for constitution, classification or expansion of municipal areas under Article 243Q(2) of the Constitution is substantially legislative in character, and therefore judicial review is limited to examining legality of the decision-making process, constitutional compliance, mala fides or manifest arbitrariness, and not the adequacy or comparative weight of the material considered by the State. The Court held that Article 243Q(2) requires the competent authority to have due regard to the enumerated constitutional factors, but it does not require a separate adjudicatory procedure, personal hearing, rigid benchmark formula, or detailed recital of each factor in the notification itself. If the contemporaneous record shows due consideration of relevant factors, the constitutional requirement is satisfied.
The Court further held that Section 7(2) of the Gujarat Panchayats Act, which governs consultation in matters of village specification, alteration or cesser under Part IX, cannot be imported as a mandatory procedural fetter upon the constitutional power exercised under Article 243Q(2) in Part IXA. The Court held that a statutory provision cannot control or enlarge the conditions for exercise of a constitutional power unless the Constitution itself says so. Therefore, absence of consultation with an elected Gram Panchayat, or consultation through an administrator during an interregnum, did not invalidate the notifications in the present Article 243Q(2) exercise.
The Court also laid down that once municipal elections are completed, elected bodies have assumed office, and the administrative structure has already crystallised, the High Court may decline relief in exercise of its discretionary writ jurisdiction even if some arguable legal grievance is shown, because quashing such foundational notifications at that stage would seriously disturb public administration, democratic institutions and third-party rights.
A Single Judge Bench comprising Justice Niral R. Mehta noted that Article 243Q(2) empowers the Governor to specify an area as a transitional area, smaller urban area or larger urban area having regard to population, density of population, revenue generated for local administration, percentage of employment in non-agricultural activities, economic importance and such other factors as may be deemed fit. The Court emphasized that Article 243Q(2) is fundamentally concerned with constitution and classification of municipal areas, and importantly, it does not itself prescribe any procedural requirement of consultation before exercise of that power. It further observed that Article 243P(d) only defines “municipal area” and comes into play after constitution of a municipality. The Court also contrasted this with Section 7(2) of the Gujarat Panchayats Act, which deals with alteration or cessation of a village for Part IX purposes and contains a consultative safeguard in that separate statutory field.
The Court crystallised the governing legal position by holding that the power under Article 243Q is constitutional in source and substantially legislative in character; the Constitution does not prescribe an adjudicatory procedure before issuing such notification; the words “having regard to” require due consideration of relevant factors but do not require elaborate findings on every parameter; the phrase “or such other factors as he may deem fit” preserves flexibility; and judicial review is limited to legality of the decision-making process, not to substituting judicial opinion for policy choice merely because another view is possible.
On the specific challenge that the notifications themselves did not reproduce every Article 243Q(2) factor, the Court rejected the argument. It held that validity had to be tested from the decision-making process and contemporaneous official record, not merely from the wording of the notification. After examining the original files, the Court found that the authorities had in fact considered relevant material relating to population, density, revenue, non-agricultural employment, urban infrastructure, developmental requirements and other administrative considerations before issuing the notifications. The Court therefore held that omission to narrate each factor in the text of the notification did not by itself show breach of Article 243Q(2).
The Court also firmly rejected the petitioners’ demand for a uniform benchmark or objective State-wide standard. It observed that urbanisation is inherently contextual and area-specific, and cannot be reduced to a single mathematical formula for the whole State. Because geography, industrial growth, connectivity, infrastructure, tribal profile, border characteristics and developmental patterns differ from region to region, Article 243Q(2) intentionally leaves room for discretion through the words “or such other factors as he may deem fit.” The Court said that requiring rigid benchmarks would amount to rewriting the Constitution.
On consultation, the Court drew a sharp distinction between Article 243Q(2) and Section 7(2) of the Gujarat Panchayats Act. It held that Section 7(2) is linked to specification, alteration or cesser of a village under Part IX and the Panchayats Act, whereas the present notifications were issued under Article 243Q(2) for constitution or expansion of municipal areas under Part IXA. Since Article 243Q(2) does not itself prescribe consultation, the Court said it was impermissible to import Section 7(2) as an additional constitutional precondition. According to the Court, accepting the petitioners’ argument would allow a statutory provision to fetter a constitutional power, which is not legally permissible. It also added that even if one assumed consultation had some role, consultation with an administrator lawfully managing the Panchayat during an interregnum could not automatically invalidate the process, especially when the ultimate decision was based on multiple reports and not on that administrator’s input alone.
The Court further held that neither natural justice nor personal hearing could be read into this exercise because notifications under Article 243Q(2) are legislative in character and are of general application. Unless the Constitution or statute expressly mandates notice or hearing, no such right can be claimed. Similarly, allegations of forgery of resolutions, political motivation, arbitrariness in exclusion of some villages, or inadequacy of municipal infrastructure were rejected because they were either unsupported by cogent material, involved disputed questions of fact unsuitable for writ jurisdiction, or related to policy choices beyond the permissible scope of judicial review.
On the tribal area objection, the Court held that Article 244 and the Fifth Schedule do not mandate consultation with the Tribal Advisory Council before issuance of a notification under Article 243Q(2). It also observed that inclusion of protected tribal lands within municipal limits does not by itself take away statutory protection otherwise available under land laws, unless competent legislation expressly provides so. Therefore, that argument too was rejected.
Finally, even apart from merits, the Court stressed that Article 226 jurisdiction is discretionary and equitable. It found that by the time of judgment, the notifications had already culminated into a constitutional and administrative reality: municipal elections had been held, councillors had assumed office, municipal administration had begun, and financial, developmental and governance arrangements had been made on the altered basis. Quashing the notifications at that stage would unsettle completed elections, dislodge functioning local bodies, create an administrative vacuum, and prejudice a large number of persons not before the Court. The Court therefore held that justice, equity and larger public interest strongly militated against interference.
Briefly, the petitions challenged various State notifications issued under Article 243Q(2) read with Article 243P(d) of the Constitution, by which several Gram Panchayat areas were merged into existing municipalities or municipal corporations across Gujarat, including Godhra, Shehara, Dabhoi, Kalol, Gandhidham, Modasa and Mahesana. The common grievance of the petitioners was that their village areas were treated as urban areas and merged into municipal limits without proper compliance with the constitutional scheme governing classification of transitional, smaller urban and larger urban areas.
In the lead matter concerning Dayal Gram Panchayat and others, the dispute had an earlier history. Godhra Municipality had earlier resolved to include nearby villages, and a previous notification issued by invoking Article 243P(d) had already been challenged. The Division Bench had earlier held that Article 243P(d) is only a defining provision and that the State must undertake the exercise under Article 243Q(2) after following the constitutional procedure and considering the prescribed factors. After that earlier round, the State again issued a fresh notification dated 17 October 2023 under Articles 243Q(2) and 243P(d), merging six Gram Panchayats into Godhra Municipality.
The other connected petitions included merger of villages into Shehara Municipality, Variyal Gram Panchayat into Shehara Municipality, villages into Dabhoi Nagarpalika, Sahij village into Kalol Municipality, certain Gram Panchayats into Gandhidham Municipality or Gandhidham Municipal Corporation, villages into Modasa Municipality, and ten village Gram Panchayats into Mahesana Municipal Corporation. Petitioners alleged that the affected villages remained rural in character, had agricultural economies, significant tribal population in some cases, and were merged despite objections by Gram Panchayats or local residents. Some petitioners also alleged that resolutions relied on by the State showing consent were forged or fabricated.
The petitioners broadly argued that Article 243Q(2) requires meaningful consideration of constitutional factors such as population, population density, revenue generated for local administration, percentage of employment in non-agricultural activities and economic importance. According to them, the State had acted mechanically, had not evolved any uniform benchmark, had not carried out meaningful or effective consultation with Gram Panchayats, and in some cases had acted on resolutions allegedly obtained through administrators or through fabricated documents. Some petitioners also argued that in tribal areas the Tribal Advisory Council ought to have been consulted, while others argued that Section 7(2) of the Gujarat Panchayats Act required consultation with elected Gram Panchayats before village identity could be altered or extinguished.
The State opposed all petitions by contending that issuance of notifications under Article 243Q(2) is a constitutional and legislative exercise, not an adjudicatory one. It argued that Article 243Q(2) does not expressly mandate consent, hearing, or consultation with Gram Panchayats; that after the statutory amendments in municipal law, the earlier consultation requirement in municipal legislation no longer survived; and that the original government files showed due consideration of relevant data before the decision was taken. The State also contended that Article 243Q(2) does not require rigid benchmark criteria and that what matters is whether the relevant factors were considered in substance.
