Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3882/2016
PETITIONERS : 1. Sau. Jayashree Vithoba Narnaware,
Aged about 30 years,
Occupation : Sarpanch,
Gram Panchayat Bramhani,
Resident of Bramhani, Tahsil Nagbhid,
District : Chandrapur.
2. Sau. Vijutai Murlidhar Pathade,
Aged about 32 years,
Occupation : Sarpanch,
Gram Panchayat Bothali,
Tahsil Nagbhid, District : Chandrapur.
3. Sau. Shalu Saidas Kusnake,
Aged about 31 years,
Occupation : Sarpanch,
Gram Panchayat Bhikeshwar,
Tahsil Nagbhid, District : Chandrapur.
4. Sau. Maya Dilip Dohotare,
Aged about 30 years,
Occupation : Sarpanch,
Gram Panchayat Tukum (Tiwharla),,
Tahsil Nagbhid, District : Chandrapur.
5. Sau. Jyoti Laxman Uikey,
Aged about 32 years,
Occupation : Sarpanch,
Gram Panchayat Dongargaon (B),
Tahsil Nagbhid, District : Chandrapur.
6. Sau. Fulkanya Dilip Gedam,
Aged about 30 years, major,
Occupation : Sarpanch,
Gram Panchayat Navkhala,
Tahsil Nagbhid, District : Chandrapur.
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... V E R S U S ...
RESPONDENTS : 1. State of Maharashtra,
Through its Secretary,
Urban Development Department,
Madame Cama Road,
Hutatma Rajguru Chowk,
Mantralaya, Mumbai400 032.
2. The Collector, Chandrapur,
Civil Lines, Chandrapur.
3. Zilla Parishad, Chandrapur,
Through its Chief Executive Officer,
Chandrapur.
4. The Tahsildar, Nagbhid,
District Chandrapur The Administrator,
Nagar Panchayat Nagbhid,
Tahsil Nagbhid, District Chandrapur.
Amendment
carried out as per
Court's Order
dt.1.7.2017.
5. Municipal Council, Nagbhid,
Through its Chief Officer,
Nagbhid, Distt. Chandrapur.
Shri S.P. Bhandarkar, Advocate for petitioners
Shri A.S. Fulzele, Addl. G.P. for respondent nos.1, 2 & 4
Shri J.B. Kasat, Advocate for respondent no.3
Shri M.I. Dhatrak, Advocate for respondent nos.5
CORAM : B.P. DHARMADHIKARI AND
ARUN D. UPADHYE, JJ.
DATE : 28.09.2017
ORAL JUDGMENT (PER : B.P. DHARMADHIKARI, J.)
1. The petitioners before this Court challenge the notification
dated 11/4/2016 issued by respondent no.1 – State constituting Nagpur
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Parishad at Nagbhid under Section 3 of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for
short, hereinafter referred to as “the Act of 1965”).
2. This Court has issued notice in the matter on 11/7/2016
and on 24/8/2016 by ad interim order stayed holding of elections of
Nagar Parishad, Nagbhid. The said orders have been vacated on
9/12/2016. This order dated 9/12/2016 was questioned in Special Leave
Petition No.7208/2017 and on 24/3/2017, the Hon'ble Apex Court while
declining to interfere expressed that writ petition should be decided
expeditiously within a period of four months from the date of receipt of
its order.
3. Accordingly, parties were heard on various dates and finally
today.
4. The petitioners before this Court are the members elected to
various Gram Panchayats before formation of Nagbhid Municipal Council.
Their elections have been conducted in August, 2015. As preliminary
notification inviting objections for formation of Nagar Parishad was issued
on 15/6/2015, the petitioners submit that Writ Petition No.4064/2015
was filed before this Court for not holding elections of Gram Panchayat
but then that writ petition was disposed of on 28/8/2015. The elections
have been held and petitioners have been elected as Gram Panchayat
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members for a period of five years. Because of impugned action, Gram
Panchayats on which they were elected have ceased to exist.
5. Contention of petitioners is, the decision to form Nagar
Parishad is with oblique motive. Earlier, according to them, there was a
decision to form Nagar Panchayat but when in Gram Panchayat elections
the political party not in power in State won in most of the Gram
Panchayats, in order to depict that verdict, decision to dissolve those
Gram Panchayats and therefore to form a Nagar Parishad (Municipal
Council) has been taken.
6. Our attention has been invited to provisions of Article 243 Q
of the Constitution of India as also to Section 3 of the Act of 1965 to
submit that norms prescribed show requirement of population in excess of
25000 and involvement in nonagricultural activities exceeding 35%. In
present matter, these requirements are not satisfied. Our attention has
been invited to various documents to substantiate this contention.
7. It is submitted that in area of Nagbhid Municipal Council
there were total 12 Gram Panchayats and out of them nine had opposed.
The majority of Gram Panchayats and therefore, the citizens residing in
their area had opposed formation of Municipal Council. It is further
submitted that village Khairi Chak Parkhi was not included in preliminary
notification but then with oblique motive and with a view to show that
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population exceeds 25000, it has been added on 11/4/2016 while issuing
final notification. Submission is, as brought out in correspondence by the
various Government Officers/authorities population otherwise never
existed 24950 and Nonagricultural Activities (N.A.) engagement was also
not more than 15%.
8. Efforts made to obtain favourable report in this respect are
highlighted by inviting attention to reports obtained even from not so
responsible Government servant, like clerk in Tahasil Office on Sunday,
i.e., 7/6/2015 about the provisions of N.A. activities.
9. The communication sent on 27/1/2016 by Collector
Chandrapur to State Government is also relied upon to show that there
Collector has not supported formation of Nagar Parishad. It is pointed out
that office note produced on record and maintained by State Government
dated 6/4/2016 shows an erroneous assumption of consultation also with
Gram Panchayats who have opposed formation of Nagar Parishad. The
petitioners claim that this assumption runs contrary to Article 243 Q of
the Constitution of India.
10. By inviting attention to provisions of Article 243 Q of the
Constitution of India and Section 3 of the Act of 1965, it is contended that
satisfaction necessary to initiate the action must be reached before
publication of preliminary notification. According to petitioners, in this
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case office notes show material insufficient even to reach that satisfaction
before 15/6/2015.
11. It is pointed out that as per Section 3 (4) of the Act of 1965
all objections received need to be forwarded to Government and then
under Sub Section 5, the State Government has to reach a finding that
objections raised are invalid. In present matter, there is no such
application of mind by State Government and objections were dealt with
at the level of Collector only.
12. It is lastly submitted that as Gram Panchayats have already
raised objections and passed Resolutions opposing formation of Municipal
Council, the petitioners who are subsequently elected to those Gram
Panchayats relied upon earlier Resolutions and objections to support the
present petition. Submission is, it is not therefore necessary for them to
demonstrate individual objection filed by them after 15/6/2015.
13. Our attention is also invited to draft notification published
on 15/6/2015 to show that it is for formation of a Municipal Council by
name Nagbhid Municipal Council and therein the objections have been
invited within 30 days while the law contemplates an opportunity to raise
objections within period of not less then 30 days. It is therefore urged that
this step is also vitiated.
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14. Lastly, learned Counsel for the petitioners submitted that as
norms prescribed in Article 243 Q of the Constitution of India or then in
Section 3 of the Act of 1965 are not satisfied, the question whether
petitioners have raised any objection within time or not is not material.
15. Learned Additional Government Pleader submits that action
has been initiated on 15/6/2015 and opportunity to raise objections was
given to all. As objections were invited within 30 days, it cannot be said
that time shorter than what is prescribed was made available by
respondents. None of the petitioners raised any objection and petitioners
approached respondents only in the month of February, 2016, i.e., almost
after eight months. Our attention is invited to Resolution of Zilla
Parishad, Chandrapur dated 17/3/2016 to submit that vide subject no.5
(2) Standing Committee of Zilla Parishad has accepted the
transformation. It is further pointed out that after publication of final
notification on 11/4/2016 Gram Panchayats are no longer in existence
and its employees have become employees of Municipal Council as per
law. The general elections of Municipal Council have been held after
vacation of interim orders of this Court and elected body is now managing
the affairs of local authority.
16. Our attention is also invited to the affidavit filed on record
by respondent nos.1, 2 and 4 vide Stamp No.13306/2016 to urge how
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relevant data showing percentage of N.A. employment and total
population of 25167 has been collected. It is submitted that village Khairi
Chak Parkhi is very much forming part of consideration because
population thereof as per census report of 2011 has been looked into. Our
attention is also drawn to preliminary notification dated 15/6/2015 to
show that there in Scheduled B village Khairai Chak Parakhi is
mentioned.
17. Heavy reliance is placed on notes reflecting the steps taken
by State Government at various stages to show that transparently entire
material has been evaluated and with due consideration, the final
decision has been taken. It is contended that merely because there was
opposition, that does not restrain the respondents from taking necessary
decision. After taking note of various factors and opposition, the State
Government has found it proper to constitute Nagar Parishad at Nagbhid.
18. To explain the total population of 12 Gram Panchayats and
percentage of N.A. employment, chart forming part of office papers and
produced as Annexure R3 is also relied upon. Learned Additional
Government Pleader submits that this entire material shows that the State
Government has consciously after keeping in mind the requirements of
law, has found it necessary to form Nagar Parishad.
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19. He contends that petitioners who could have opposed
formation of Nagar Parishad as citizens did not do so and did not raise
any objection within a period of 30 days. Only because they got elected as
Gram Panchayat members in August 2015, they have for the first time in
February, 2016 raised objections. According to him, as Gram Panchayats
automatically get dissolved upon constitution of Municipal Council, no
legal right of petitioners has been violated and hence, entire petition as
filed is misconceived. He submits that in this situation arguments of
mala fides are also erroneous and irrelevant. Lastly, he submits that as
Nagar Parishad is already constituted and functioning and none of the
local bodies like Gram Panchayats, who then have objected to its
formation have approached this Court, cognizance of grievance made by
petitioners should not be taken and this Court should dismiss the petition.
20. Perusal of Article 243 Q of the Constitution of India shows
that it prescribes constitution of Municipal Council for a smaller urban
area and Municipal Corporation for a larger urban area. Sub Article (2)
points out what is transitional area or a smaller urban area or a larger
urban area. The notification dated 15/6/2015 published by State
Government shows effort made by State Government to constitute
Municipal Councils in various places in Chandrapur District. Nagbhid is
one of them. The proclamation dated 15/6/2015 states that total 12 areas
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were dealt with and in draft notification those 12 areas are mentioned in
Schedule – A. Village Nagbhid is at serial no.1. In Schedule B while
giving boundaries, on eastern side village Khairi Chak Parkhi has been
mentioned as boundary.
21. Objections were invited within period of 30 days of
publication in Government Gazette and the same were to be lodged with
office of Collector, Chandrapur. Under Section 3 (4) of the Act of 1965,
the Collector has to forward all such objections to State Government. The
scheme of Section 3 of the Act of 1965 shows that under Sub Section 2
the State Government is competent to specify any local area as smaller
urban area if population of such area is not less than 25000 and
percentage of employment in nonagricultural activities in such area is not
less than 35 %. Sub Section 2 A stipulates that every such smaller urban
area is to be constituted as Municipal council. Sub Section 3 prescribes a
step prior to the steps envisaged in Sub Section 2. It requires State
Government to publish in Official Gazette and also in newspaper, a
proclamation announcing intention of Government to issue notification
under Sub Section 2 and invite objections from all persons to it. The
objections are to be filed with Collector of District within not less then 30
days from the date of publication of proclamation in Official Gazette.
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22. In present matter, there is no challenge to validity of any
legal provision. The objections invited by proclamation dated 15/6/2015
are within 30 days and hence, it follows that it is within not less than 30
days. Hence, contention that preliminary notification runs contrary to Sub
Section 4 of Section 3 of the Act of 1965 cannot be sustained. In any case,
when nobody raised any objection to the draft notification and/or has
complained of any prejudice, their contention is misconceived in
these facts.
23. Admittedly, the petitioners did not raise any objection
within 30 days or thereafter till February, 2016. Sub Section 4 of
Section 3 obliges Collector to forward the objections “so submitted” to the
State Government. The words “so submitted” in Sub Section 4 therefore
indicate objections filed with Collector within 30 days after publication of
notification. Thus, Collector is not obliged to forward objections received
after 30 days to State Government. Sub Section 5 then obliges State
Government to apply its mind to objections so forwarded to it by Collector
and record its opinion about it. The said provision casting obligation is
worded in negative language and State is restrained from proceedings
further to issue final notification till it finds that objections so received are
insufficient or invalid.
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24. In present matter, perusal of communication dated
25/8/2015 sent by office of Collector to State Government shows that
insofar as Nagbhid Municipal Council is concerned, not a single objection
was received between 15/6/2015 to 15/7/2015. This document has been
placed on record as Annexure – N by petitioners along with their
additional affidavit and it is not in dispute. It is therefore obvious that
contention that objections were not considered by State Government or
then objections were looked into by Collector only, is erroneous and
unsustainable.
25. Perusal of office records made available as Annexures by
petitioners again as part of their rejoinder show submission of office dated
6/4/2016. This note is signed by Desk Officer Shri Ambikar and it
mentions total population of proposed Municipal Council area was
24,950. It also mentions that as per 2011 census, if the population of
villages who had objected was to be excluded total left out population
would be 17,778. Thus, this figure of 24,950 pointed out in note is as per
2011 census. This note also mentions that total seven Gram Panchayats
have not approved formation of Municipal Council and law provided
appropriate consideration of such opposition. While commenting in this
respect in said note, Shri Ambikar has submitted that as per Section 4 (2)
of the Maharashtra Village Panchayats Act, such step to delete a village or
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add it to Municipal area can be taken after due consideration. He has
opined that consideration of the adverse Resolutions passed by these
Gram Panchayats, process of consultation can be presumed to be
completed and State Government should be free to proceed further to
take suitable decision.
26. On 27/1/2016, office of Collector, has on the basis of same
figures of population, submitted that due to 2011 census figure of
population was inadequate and formation of Municipal Council was not
possible. However, on 15/2/2016 very same Collector has in same
background again pointed out that total population of area under
consideration was 24950 and the population of villages not agreeing to
inclusion was 7172. He has also pointed out requirement of population of
25000 but then opined that office of Collector was in favour of formation
of Nagar Parishad.
27. The above mentioned note of Desk Officer Shri Ambikar is
then looked into by Deputy Secretary and he has submitted a favourable
recommendation in the backdrop of all above mentioned facts.
Ultimately, the papers were processed further and the Hon'ble Chief
Minister has given final approval to it.
28. Respondent nos.1, 2 and 4 have filed a reply to rejoinder
dated 25/10/2016 of petitioners. This reply filed vide Stamp
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No.13306/2016 is accompanied by office note and then a chart. All these
documents are placed on record as Annexure R3 and are not in dispute.
Annexure R3 contains a note dated 5/6/2015 which notes that on
telephone percentage of N.A. employment was procured from Talathi and
as per his estimate it was about 15%. The later note dated 6/6/2015
shows detailed consideration of population as reflected in 2011 census
and then employment in agricultural sector and employment in
nonagricultural sector. In paragraph 2, it is mentioned that as
agricultural jobs were not available in areas forming part of Nagbhid
Municipal Council, people work under Employment Guarantee Scheme
(E.G.S.). It is mentioned that total population of villages forming part of
Municipal Council is 25167 and number of registered labours under
E.G.S. is 9656 i.e. levelling 38%. It is further submitted that percentage of
N.A. employment at 32.53% in paragraph no.1 is pertaining to year 2011
i.e. about four years old. In these four years, the extent of N.A. land
increased from 70.67 H.R. to 79.43 H.R. Thus, percentage increase was
13.34. The note therefore submits that taking overall view, 10% increase
in N.A. potential after 2011 is apparent and hence, N.A. percentage at
35% should be pointed out to the office of Collector.
29. We need not go into more details of these figures. These
figures are supported by a chart which contains the details of population
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of all 12 Gram Panchayats with number of households, details of persons
engaged in cultivation, engaged as agricultural labours and other works.
The figures therein support the modification suggested to the office of
Collector.
30. The total households in 12 Gram Panchayats are shown to
be 6366 and total workers are shown to be 11842. The figure of 7077 is
shown as main workers while 1184 are shown as cultivators. 2762 are
shown as agricultural labours, 206 are shown as working in household
industries, while 2925 are shown as working in other sectors. Thus, even
if this chart is looked into and compared, it is apparent that when
agricultural work is not available all the year round, registration of 9656
persons as labour under E.G.S. cannot be overlooked. Petitioners have
submitted that works under E.G.S. are available for roughly 100 days in a
year i.e. about 30% of total working days.
31. Works under E.G.S. are made available by State
Government and persons not getting any work anywhere have to report
Tahsildar and get themselves registered with Tahsildar. Obligation is cast
upon Tahsildar then to provide work to such registered workers.
32. Considering total number of such workers registered with
Tahsildar the fact that N.A. potential exceeds 35% cannot be denied.
Duration of 100 days of employment guarantee work with total number
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of 365 days and above data together lays credence to the submission in
note that percentage of N.A. potential is about 35 %.
33. In this situation, when after looking into the Resolutions by
unwilling Gram Panchayats and other data, a decision has been reached
and that decision is within four corners of law, submission that power has
been used with oblique motive cannot be entertained. Fact that not a
single citizen raised any objection within 30 days itself militates with
contention of mala fide exercise of power. All data looked into is prior to
15/6/2015 and is relevant for the exercise of transformation. Sufficiency
or adequacy of the material is beyond judicial review.
34. Petitioners could have opposed the move as vigilant citizens
before their elections as Gram Panchayat members. They did not raise any
objection within stipulated time. They were not petitioners before this
Court in Writ Petition No.4064/2015. Thus, when they contested the
election, they were aware of impending exercise of transformation. They
have taken risk and ultimately in February, 2016 they chose to wakeup
and raised objections.
35. It is to be noted that objections raised by petitioners and
petition filed by them (by six Sarpanch) appear to be in individual
capacity. No Resolution of Gram Panchayat deciding to challenge the final
notification dated 11/4/2016 is filed along with petition. Petitioners have
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not pointed out that they have been authorized by their respective Gram
Panchayats to approach this Court.
36. At this stage, Advocate Shri Bhandarkar submits that such
Resolutions exist but the petitioners have not placed it on record. This
th
submission at 11 hour cannot be appreciated and accepted by this Court.
37. We have gone through the judgment relied upon by the
learned Counsel for the petitioners, reported at (2003) 4 Supreme Court
Cases 739 (State of A.P. and others...Versus...Goverdhanlal Pitti) .
Paragraph 12 therein is about legal meaning of malice i.e. illwill or spite
towards a party and any indirect or improper motive in taking an action.
38. In the light of above discussion, we are not in a position to
accept the contention that here impugned action has been taken with any
oblique motive. Petitioners have not placed on record necessary facts.
Merely because in Gram Panchayat elections, a particular political party
has succeeded that does not imply that action initiated before such
decision is rendered bad. State Government has looked into all relevant
facts and data before 15/6/2015 to its satisfaction is supported by
relevant material. There is no jurisdictional error in the mode and manner
of reaching the satisfaction. Petitioners do not show use of any irrelevant
material. We therefore find that impugned process can not be faulted
with. There is no perversity in said exercise.
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39. We, therefore, find no case made out. Writ Petition is
dismissed. Rule stands discharged. No costs.
JUDGE JUDGE
Wadkar
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