Full Judgment Text
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PETITIONER:
STATE OF ORISSA
Vs.
RESPONDENT:
SRIDHAR KUMAR MALIK AND ORS. ETC. ETC.
DATE OF JUDGMENT31/07/1985
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
SEN, AMARENDRA NATH (J)
CITATION:
1985 AIR 1411 1985 SCR Supl. (2) 349
1985 SCC (3) 697 1985 SCALE (2)317
CITATOR INFO :
RF 1987 SC1239 (5)
ACT:
Orissa Municipal Act, 1950, Chapter XXX-A, Section 417-
A and Rule 602 of the Orissa Municipal Rules, 1953 -
Proclamation constituting notified area published in English
language both in the Official Gazette and the local
newspaper - Validity of.
HEADNOTE:
Chapter XXX-A of the Orissa Municipal Act, 1950 also
empowers the State Government to apply the provisions of the
Act to areas other than the towns, called "notified areas".
Under s. 417-A in that Chapter, before the Government
extends the operation of the Act to an area under a
municipality it must afford an opportunity to the local
residents to object to the proposed action. The objections
are submitted to the District Magistrate who forwards them
along with his views to the State Government, for deciding
as to what should be the precise area to which the Act
should be extended, and indeed whether all the provisions of
the Act or only certain specified provisions should be so
extended.
In August 1972 the State Government proclaimed their
intention to issue a notification under sub-.(1) of s.417-A
of the Act in respect of certain areas in the District of
Ganjam and invited objections from persons residing within
the area. The proclamation was published in English in the
Orissa Gazette as well as in a local Oriya newspaper, the
"Daily Samaj". Pursuant to this proclamation no objection
was received. on March 31, 1977 the State Government issued
a notification constituting with effect from April 1, 1977,
the area of Ganjam and Damodarpur villages as a notified
area in terms of sub-s.(1) of s. 417-A and making all the
provisions of the Act applicable.
The residents of the said two villages challenged the
validity of the notification dated March 31, 1977 under
Article 226 of the Constitution on two grounds : (1) that
the proclamation conveying the intention of the Government
to constitute a notified area was vague in content and did
not specify whether all the purposes of the Act or only some
of them, and if so
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350
which, were to be the subject of administrative provision in
relation to the area and thus they were deprived of a full
and proper opportunity to express their views on the
proposal of the Government and (2) that most of the
residents did not know English and as the proclamation was
made in the English language, both in the Orissa Gazette and
in the local newspaper, the publication served no purpose
and was contrary to the intent of the statute. Both the
grounds found favour with the High Court and consequently
the notification was quashed.
Dismissing the appeal of the State,
^
HELD :1. The declaration that the State Government
intends to issue a notification under sub-s.(1) of s.417-A
does not satisfy the statutory requirement because a
notification under that sub-section may either be for all
the purposes of the Act or for any of them. In the instant
case, while it may be possible to say that the areas covered
by the proposal are indicated with sufficient precision, it
is not possible to hold that all the purposes of the Act or
only some of them were intended for administrative provision
in the proposed area. Therefore, the proclamation made under
sub-s.(1-a) of the s.417-A was ambiguous and incomplete and
was not the kind of notification which would ensure that the
intention behind making it and calling for objections would
be served. [354 F-H]
2. Sub-s.(1)(a) of the s.417-A of the Act requires that
the proclamation should be published in the Official Gazette
and also at least in one newspaper circulating in the area.
In the instant case the proclamation was made in the English
language in the Gazette as well as in the local newspaper.
The Oriya Gazette is published in English, and that being so
the intention of the legislature in sub-s.(1)(a) must be
construed to be that the proclamation in the gazette should
be in the English language. So far as the proclamation in
the newspaper was concerned, Rule 602 of the Orissa
Municipal Rules 1953 does not prescribe the language in
which the proclamation under sub-s.(1) of s.417-A of the Act
has to be made. Having regard to the object with which a
proclamation is required to be published under sub-s.(1)(a)
of s.417-A of the Act and in order to make all persons
residing within the area to understand the proposal and to
submit their objections, it must be published in the local
language of the area in which the newspaper circulates and
with which the residents are familiar. The local language of
the area is Oriya and, therefore, the State Government
should have published the proclamation in the newspaper in
that language. [354H 355 A-H 356 A-B]
351
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 545 &
546 of 1980.
From the Judgment and Order dated 27.2.1978 of the
Orissa High Court in O.J.C. Nos. 249 & 241 of 1977.
P. Govindan Nair, R.K. Mehta and Baby Krishnan with him
for the Appellant.
B.P. Maheshwari for Respondent Nos. 1-2 in 545/80 and
R-1 in 546/80 and G.S. Chatteree (Not Present) for
Respondent No. 3 in 545 of 1980.
The Judgment of the Court was delivered by
PATHAK, J. These appeals by special leave are directed
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against the judgment and order dated February 27, 1978 of
the High Court of Orissa allowing two writ petitions and
quashing a notification issued by the State Government for
the purpose of constituting a notified area under the Orissa
Municipal Act, 1950.
The Orissa Municipal Act, 1950 provides for the
Constitution of Municipalities and the application and
enforcement of various provisions commonly found in
legislation dealing with local self-government. They include
provisions relating to public health, supply of water for
domestic use, lighting, public and private drainage,
conservancy, maintenance and repair of public roads,
building regulations, markets, slaughter houses, burial and
burning grounds, places of public resort and entertainment,
as well as provisions for raising taxes to enable the
Municipality to fulfil its function and obligations.
Ordinarily, the provisions of the Orissa Municipal Act apply
to towns, for under s.4 a town alone can be constituted into
a municipality. But under Chapter XXX-A of the Act the State
Government has been empowered to apply the provisions of the
Act to other areas, conveniently described as "notified
areas". Section 417-A in that Chapter provides :
"417-A.(1) The State Government may by
notification declare that it is necessary to make
administrative provision for all or any of the
purposes of this Act in any area, specified in the
notification other than a municipality.
352
(1-a) Before the publication of a notification
under sub-section (1) the State Government shall
cause to be published in the Official Gazette and
also at least in one newspaper circulating in the
area a proclamation announcing the intention of
Government to issue such notification and inviting
all persons residing within such area to submit
their objections, if any, in writing to the
District Magistrate within one month from the date
of publication of the proclamation in the Official
Gazette.
(1-b) The District Magistrate shall, with all
reasonable despatch, forward all objections so
submitted along with his views thereon to the
State Government who shall, before publication of
the notification under sub-section(1), take into
consideration the objections and views forwarded
as above.
(2) An area, in respect of which such a
notification has issued, is hereinafter called a
"notified area".
In August 1972, the State Government proclaimed their
intention to issue a notification under sub-s.(1) of s.417-A
of the Act in respect of certain areas in the district of
Ganjam, and invited objections from persons residing within
the area. The proclamation was published in English in the
Orissa Gazette, and in the same language in a local Oriya
newspaper, the "Daily Samaj". It seems that no objections
were received and on March 31, 1977, the State Government
issued a notification constituting with effect from April 1,
1977, the area specified in the appended Schedule a notified
area in terms of sub-s.(1) of s.417-A of the Act. The
notification stated that the notified area would consist of
two villages, Ganjam and Damodarpur, and that all the
provisions of the Act would be applied to the notified area.
The residents of the villages Ganjam and Damodarpur
filed writ petitions in the High Court challenging the
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validity of the notification dated March 31, 1977. Two
points were taken in the main. It was contended that the
proclamation conveying the intention of the State Government
to constitute a notified area was vague in content and did
not specify whether all the purposes of the Act or only some
of them, and if so which, were to be the subject of
administrative provision in relation to the area. The
residents of the area, it was urged, were thus deprived of a
full and proper opportunity to express their views on the
proposal of
353
the Government. The second contention was that most of the
residents did not know English, and as the proclamation as
made in the English language, both in the Orissa Gazette and
in the local newspaper, the publication served no purpose
and was contrary to the intent of the statute. Both points
found favour with the High Court and, consequently, the
notification was quashed.
In this appeal, the appellant, the State of Orissa has
attempted to show that the proclamation satisfied the
requirements of the statute and that the High Court erred in
finding fault with it.
The extension of the Orissa Municipality Act to an area
other than a municipality is a matter of serious moment to
the residents of the area. It results in the provision of
amenities and conveniences necessary to civil life and their
regulation by a local body. But the Act also provides for
the imposition of taxes of different kinds on the residents.
The tax structure does not embody an integrated unified
impost expressed in a single tax measure. Different kinds of
taxes are contemplated by the Act. The scheme set forth in
Chapter XXX-A of the Act intends that before the Government
extends the operation of the Act to an area under a
municipality it must afford an opportunity to the local
residents to object to the proposed action. The objections
are submitted to the District Magistrate who forwards them
along with his views to the State Government. The State
Government must take into consideration all the material
before it and decided thereafter what should be the precise
area to which the Act should be extended, and indeed whether
all the provisions of the Act or only certain specified
provisions should be so extended. The possibility of some
only of the provisions of the Act being applied to the
notified area is evident from the terms in which the grant
of power has been conferred on the State Government. Sub-
s.(1) of s.417-A specifically envisages that when issuing
the notification contemplated therein the State Government
must decide whether administrative provision needs to be
made "for all or any of the purposes" of the Act in the area
proposed to be notified. Unless the proposal formulated in
the proclamation made under sub-s.(1-a) of s.417-A is
precise and clear, and indicates with sufficient accuracy
the area intended to be notified, and further indicates
whether the administrative provision is proposed for all the
purposes of the Act or only some of them, and if only some
of them then which of them, it will not be possible for the
residents to properly avail of the right conferred on them
by the statute to make their objections to the proposal of
the State Government. We do not see how it can be otherwise.
354
The proclamation issued by the State Government under
sub-s.(1-a) of s.417-A states:
"In pursuance of sub-section (1-A) of s.417-A of the
Orissa Municipal Act, 1950 (Orissa Act 23 of 1950) the
State Government do hereby announce their intention to
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issue a notification under sub-section (1) of the said
section in respect of the area in the district of
Ganjam, specified in the schedule appended hereto.
Any person residing within the said area may submit
his/her objections, if any, in writing to the District
Magistrate, Ganjam, within one month from the date of
publication of this proclamation in the Orissa Gazette.
Schedule
-----------------------------------------------------------
Name of Village Police Station Name of the G.P.
with Thana No.
-----------------------------------------------------------
1 2 3
1. Ganjam Chartrapur Thana No. 17 Ganjam
2. Damodarpur Chartrapur Thana No. 17 Ainchpur"
While it may be possible to say that the areas covered by
the proposal are indicated with sufficient precision, it is
not possible to hold that all the purposes of the Act or
only some of them were intended for administrative provision
in the proposed area. The declaration that the State
Government intends to issue a notification under sub-s.(1)
of s.417-A does not satisfy the statutory requirement
because a notification under that sub-section may either be
for all the purposes of the Act or for any of them. In our
opinion, the proclamation made under sub-s.(1-a) of s.417-A
is ambiguous and incomplete. It is not the kind of
notification which will ensure that the intention behind
making it and calling for objections will be served. On that
ground alone the High Court was justified in allowing the
writ petitions.
The next point concerns the validity of the
proclamation made under sub-s.1(a) of s.417-A of the Orissa
Municipal Act. The sub-section requires that the
proclamation should be published in the official Gazette and
also at least in one newspaper circulating in the area.
Admittedly, the proclamation was framed
355
in the English language, in the Gazette as well as in the
local newspaper, the "Daily Samaj". The Oriya Gazette is
published in English, and that being so the intention of the
legislature in sub-s.1(a) must be construed to be that the
proclamation in Gazette should be in the English language.
But the proclamation in the newspaper was also in the
English language. The contention of the resident, which has
found favour with the High Court, is that the notification
should have been in Oriya, the local language of the people
residing in the area and invited to submit their objections.
Our attention has been drawn to rule 602 of the Orissa
Municipal Rules, 1953 which provides:
"(1) Every notification required to be published
by a municipal council under the Act shall be
published in Oriya by affixture in the notice
board of the municipal office concerned and also
proclaimed by beat of drum.
(2) Every notification required to be published by
the State Government in the prescribed manner
shall be published in English in the Gazette."
There is nothing, however, in rule 602 which prescribes the
language in which the proclamation under sub-s.1(a) of
s.417-A of the Orissa Municipal Act has to be made. Sub-rule
1 of rule 602 deals with the notification published by a
municipal council while sub-rule 2 deals with a notification
published in the Gazette by the State Government. We have no
doubt in our mind that having regard to the object with
which a proclamation is required to be published under sub-
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s.1(a) of s.417-A of the Orissa Municipal Act, it must be
published in the local language of the area in which the
newspaper circulates. It is apparent that the legislature
attaches serious importance to eliciting the opinion of the
residents of the area who will be affected by its
constitution as a notified area, and that is why express
provision in that behalf was made in sub-s.(1) of s.417-A.
The legislature did not consider it sufficient that the
proclamation was published in the official Gazette. It is a
notorious fact that few people beyond those who belong to
the official community actually read the official Gazette.
Therefore, the legislature imposed the further requirement
that the proclamation should be published in a newspaper
circulating in the area. A newspaper today has become a
basic medium for communication with the people. Its
effectiveness in that regard cannot be disputed, even as its
influence in the dissemination of information cannot be
356
underestimated. To reach out to the people, it must be
published in a language with which they are familiar. In so
fundamental a matter as local self-government the
legislature intended that an opportunity should be available
to all persons residing within the area to submit their
objections. The local language of the area is Oriya, and
therefore the State Government should have published the
proclamation in that language in the newspaper. On this
point also we find ourselves in agreement with the High
Court.
The appeals are dismissed with costs.
A.P.J. Appeals dismissed.
357