Full Judgment Text
2016:BHC-AS:6892-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7061 OF 2015
…
1.Rajesh Sharad Mapara
2.Arif Gafur Maniyar
3.Janardhan Joma Joshi
4.Nathuram Pandurang Joshi
5.Veena Hemant Silimkar
6.Rajashri Ravindra Konje
7.Usha Ashok Shah
8.Shubhada Kamlakar Thate
9.Aparna Uday Kumbhar
All residing at & post Pali,
Taluka: Pali - Sudhagad,
District: Raigad ...Petitioners
v/s.
1. State of Maharashtra
through Secretary, Urban Development
Department, Mantralaya,
Mumbai-32
2. District Collector, Raigad
3. Tasildar, Taluka: Pali, Dist:Raigad ...Respondents
…
Mr.C.G.Gavnekar for the Petitioners.
Mr.Vikas Mali, AGP for the State/Respondents.
…
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CORAM : NARESH H. PATIL &
A.A. SAYED, JJ .
RESERVED ON : 29 January 2016 .
PRONOUNCED ON : 14 March 2016.
JUDGMENT: (Per A.A.Sayed,J.)
1 Rule. Rule made returnable forthwith and heard finally by
consent of learned Counsel for the parties.
2 By this Petition under Article 226 of the Constitution, the
Petitioners have impugned the Notification issued by Respondent
No.1–State of Maharashtra dated 26 June 2015. By the
impugned Notification, in exercise of powers conferred under sub-
sections (1), (1A) and (2) of section 341A of the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships
Act, 1965 (hereinafter referred to as ‘the said Act’), the
Government of Maharashtra has specified the local area of village
Panchayat of Pali in Raigad District to be a transitional area (an
area in transition from a rural area to an urban area) and to
constitute a Nagar Panchayat by the name Pali Nagar Panchayat
for the said transitional area. The Petitioners have also impugned
the consequent Notification dated 26 June 2015, appointing
Respondent No.3-Tahsildar as Administrator to exercise all
powers and duties of Pali Nagar Panchayat till the said Nagar
Panchayat is duly constituted.
3 The Petitioners are elected members of Gram Panchayat,
Pali, established under the provisions of Maharashtra Village
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Panchayat Act, 1958. According to the Petitioners prior to
publication of the impugned final Notification dated 26 June 2015,
the procedure prescribed in sub-sections (3), (4) and (5) of
section 3 of the said Act as contemplated under sub-section (1B)
of section 341A has not been followed. The Petitioners contend
that before publication of the impugned final Notification, the draft
Notification dated 1 March 2014 ought to have been published by
the State of Maharashtra in at least one newspaper circulating in
the area to be specified in the final Notification, announcing the
intention of the Government to issue the final Notification and
inviting objections to the proposal (of specifying the local area of
Village Panchayat of Pali as transitional area and constituting
Nagar Panchayat) within 30 days from the date of publication. It is
asserted that in absence of such draft Notification having been
published, the impugned final Notification dated 26 June 2015 is
illegal and liable to be set aside.
4 On behalf of the Respondents an Affidavit-in-Reply has
been filed by Shri Prakash T. Gaud, Joint Secretary, Urban
Development Department, Mumbai. It is averred in the said
Affidavit that the draft Notification was published on the Notice
Board of Gram Panchayat Pali, Tahsil Office, Pali and Collector
Office, Alibag, District Raigad. It is stated that the villagers of Pali
Gram Panchayat as well as elected members of Pali Gram
Panchayat were aware about the intention of the State
Government and that after the publication of the draft Notification,
the Pali Gram Panchayat had called Gramsabha on 5 July 2014
and unanimously supported the constitution of Nagar Panchayat
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and nobody raised any objection for constitution of Nagar
Panchayat. In para 5 of the Affidavit it is averred that on
26.06.2015 the State Government has issued final Notification in
the Official Gazette under sub section 1, 1(A) and 2 of Section
341A of the said Act and under the provisions of clause (a) of
sub-section (1) of Section 254 with sub-section (1) of Section 4 of
Maharashtra Zilla Parishad and Panchayat Samities Act, 1961
and under the provisions of clause (b) of sub-section (2) of
Section 4 of the Maharashtra Village Panchayat Act (Act III of
1959) with clause (g) of Article 243 of Constitution of India, duly
published the same and dissolved the Grampanchayat.
Significantly, it is admitted in the said Affidavit that the draft
Notification was not published in local newspaper.
5 We have heard learned Counsel for the Petitioners and
learned AGP for the Respondents.
6. Article 243Q of the Constitution provides for constitution of
Municipalities. It reads as under:
243Q. Constitution of Municipalities. — (1) There
shall be constituted in every State,—
(a) a Nagar Panchayat (by whatever name called) for
a transitional area, that is to say, an area in
transition from a rural area to an urban area.
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in
accordance with the provisions of this Part:
Provided that a Municipality under this clause may
not be constituted in such urban area or part thereof as
the Governor may, having regard to the size of the area
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and the municipal services being provided or proposed
to be provided by an industrial establishment in that
area and such other factors as he may deem fit, by
public notification, specify to be an industrial township.
(2) In this article, ‘a transitional area’, ‘a smaller
urban area’ or ‘a larger urban area’ means such area
as the Governor may, having regard to the population
of the area, the density of the population therein, the
revenue generated for local administration, the
percentage of employment in non-agricultural activities,
the economic importance or such other factors as he
may deem fit, specify by public notification for the
purposes of this Part.
7. Section 341A of the said Act is relevant for our purposes. It
reads as under:
341A. Specification of a transitional area
and incorporation of a Nagar Panchayat.
(1) The State Government may, having regard to
the factors mentioned in clause (2) of article 243-Q
of the Constitution of India, specify, by notification in
the Official Gazette, an area in transition from a
rural to an urban area to be a transitional area :
Provided that, no such area shall be so specified as
a transitional area unless,—
(a) such area has a population of not less than
ten thousand and not more than twenty-five
thousand; and
(b) such area is not more than twenty kilometers
away from the territorial limits of any Municipal
Corporation or a “ A ” Class Council and the
percentage of employment in non-agricultural
activities in such area is not less than twenty-five
per cent.; or
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(c) such area is more than twenty kilometers
away from the territorial limits of any Municipal
Corporation or a “A” Class Council but the
percentage of employment in non-agricultural
activities in such area is not less than fifty per cent.
(1A) Notwithstanding anything contained in the
proviso to sub-section (1), the State Government
may, by notification in the Official Gazette, declare
an area which is a District Headquarter or a Taluka
Headquarter to be a transitional area.
(1B) Prior to the publication of a notification under
sub-section ( 1 ) or ( 1A ), the procedure prescribed in
sub-sections ( 3 ), ( 4 ) and ( 5 ) of section 3 shall
mutatis mutandis be followed .
(2) For every transitional area so specified under
sub-section (1), there shall be constituted a Nagar
Panchayat as provided in section 341B which shall
be known by the name of ............ Nagar Panchayat.
Every such Nagar Panchayat shall be a body
corporate and shall have perpetual succession and
a common seal with power to acquire, hold and
dispose of property and to enter into contract and
may by the said name sue and be sued.
(emphasis supplied)
8 Section 3 referred to in sub-section (1B) of section 341A
(reproduced hereinabove) reads as follows:
“ 3. Specification of areas as smaller urban areas.
(1) … ...
(2) … ...
(3) Before the publication of a notification
under sub-section (2), the State Government shall
cause to be published in the Official Gazette, and
also in at least one newspaper circulating in the
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area to be specified in the notification, a
proclamation announcing the intention of
Government to issue such notification, and inviting
all persons who entertain any objection to the said
proposal to submit the same in writing with the
reasons therefor, to the Collector of the District,
within not less than thirty days from the date of the
publication of the proclamation in the Official
Gazette.
Copies of the proclamation in Marathi shall
also be posted in conspicuous places in the area
proposed to be declared as a municipal area.
(4) The Collector shall, with all reasonable
dispatch, forward any objection so submitted to the
State Government.
(5) No such notification as aforesaid shall
be issued by the Sate Government unless the
objections, if any, so submitted are in its opinion
insufficient or invalid.”
9 Thus, under sub-section (1B) of section 341A, prior to the
publication of a Notification under sub-section (1) or (1A), the
procedure prescribed in sub-sections (3), (4) and (5) of section 3
is required to be followed. In other words, before publication of
the final Notification, the State Government is required to publish
in the Official Gazette and also at least one newspaper circulating
in the area a proclamation/draft Notification announcing its
intention to issue such final Notification and inviting all persons
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who entertain any objection to the proposal of the Government (to
specify an area in transition from rural area to an urban area to be
transitional area and constitute a Nagar Panchayat) to submit the
same in writing with reasons therefor to the Collector of the
District. The Collector is required to forward the objections, if any,
to the State Government. No final Notification can be issued
unless the objections, if any, so submitted are in the opinion of
the State Government insufficient or invalid.
10 A Division Bench of this Court (at Aurangabad) in a
somewhat similar case in Laxman Jagannath Yadav vs. State
of Maharashtra and others, 1990 MhLJ 574, held in paragraph
nos.5, 6 and 7 as under:
“5. Section 6 of the Maharashtra Municipalities Act,
1965, authorises State Government to alter the limits
of a Municipal area by Notification in Government
Gazette. Consultation with the concerned local
bodies and following the procedure laid down in sub-
section (3), (4) and (5) of section 3 of the said Act is
sine-qua non for the exercise of power under section
6. Sub-section (3) of section 3 of the Act requires that
State Government shall cause to publish a
Notification in the Official Gazette announcing the
intention of Government to issue a Notification
altering the limits of a Council and inviting all persons
who entertain any objection to the said proposal to
submit in writing with reasons therefor to the Collector
of the District within two months from the date of
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publication to proclamation in the Official Gazette.
Thus, requirement of sub-section (3) of section 3 is a
prerequisite for the alteration of limits of a municipal
area which will have to be done under section 6 of
the said Act. The Legislature thought it fit to give an
opportunity to affected persons who would be
transferred from areas of other local bodies into an
area of Municipal Council or vice versa, before
Notification under section 6 is issued. With this
purposes sub-section (3) has been enacted. The
Publication of the Notification in the Official Gazette
would only make the people aware of the intention of
the Government, but no useful purpose would be
served merely by making people aware of such an
intention. The later part of sub-section making it
obligatory on the part of the State Government to call
for the objections is very much necessary for giving
valid effect to the intention of the Government. If the
people are not asked to file their objections, if any,
then the very purpose of publishing a preliminary
notification would be lost.
6. Mr.Dhuladhwaj, learned A.G.P., wanted to
submit that an executive right has been vested in the
Government under sub-section (3) of section 3. We
are unable to accept with this proposition since no
such right is vested in Government by virtue of
section 3(3). it merely requires the State Government
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to follow the due procedure of law before power could
be exercised under section 6 of the said Act. In the
very nature of the things, it will have to be held that
the later part of sub-section 3 requiring that such a
notification should contain an appeal to the people
affected to file objections, if any, is mandatory in
nature and that non-compliance of it will render any
action under section 3(3) of the Maharashtra
Municipalities Act, 1965, invalid and bad in law. If a
power has been vested in a statutory authority by a
statute it will have to be exercised in the manners
which have been prescribed by the statute and not
otherwise. Supreme Court in the case of Hukam
Chand Shyam Lal vs. Union of India reported in AIR
1976 SC 789, has observed thus:-
“18 It is well settled that where a power is
required to be exercised by a certain authority in
a certain way, it should be exercised in that
manner or not at all, and all other modes of
performances are necessarily forbidden. It is all
the more necessary to observe this rule where
power is of a drastic nature and its exercise in a
mode other than the one provided, will be
violative of the fundamental principles of natural
justice. … …. …. ...”
Not calling objections as required would be violation
of principles of natural justice. Later part of sub-
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section (3) of section 3 of the Act gives statutory
recognition to the principle of natural justice and is
mandatory in nature.
7. Therefore, we will have to hold that the Notification
dated 18th March, 1989, published by the Urban
Development Department of the Government of
Maharashtra purporting to under section 3(3) of the
Maharashtra Municipalities Act, 1965, in respect of
the alterations in the boundaries of the Shrirampur
Municipal Council is bad in law and it is hereby
quashed. Needless to say that we have not
expressed any opinion as to the question whether
any area should be added or not be added by
alteration of the limits of Shrirampur Municipal
Council. State Government would be free to take
proper steps by adopting procedure prescribed by
law.”
11 The aforesaid case of Laxman Jagannath Yadav was one
concerning alteration of limits of a municipal area by publication
of a Notification under Sections 6(1) of the said Act. Section 6(2)
stipulates that prior to publication of the Notification under Section
6(1), the procedure prescribed under sub-sections (3), (4) & (5) of
Section 3 shall mutatis mutandis be followed. As discussed
earlier, sub-section 1(B) of Section 341A (which is applicable in
the present case) also stipulates that prior to publication of
Notification under sub-section (1) or (1A) of Section 341A, the
procedure prescribed under sub-sections (3), (4) & (5) of Section
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3 shall mutatis mutandis be followed. The Division Bench held
that the procedure prescribed under section 3(3) is mandatory in
nature and not calling for objections would be violation of
principles of natural justice. In Laxman Jagannath Yadav , as a
matter of fact, the draft Notification was published in the
newspaper, however the same did not contain any invitation from
public to file objections. In the present case, it is an admitted
position that the draft Notification dated 1 March 2014 was not
even published in any newspaper circulating in the area specified
in the final Notification proclaiming the intention of the
Government to issue the final Notification so as to invite any
objections from public. In these circumstances, indubitably, the
mandatory procedural compliances prescribed under sub-
sections (3), (4) & (5) of section 3 of the said Act have not been
followed. Non-publication of the draft Notification had clearly
resulted in denial of opportunity to public to file objections to the
proposal of the State Government thereby violating the principles
of natural justice. Pertinently, the impugned final Notification
specifically states that the Government has not received any
objections to the proclamation. Thus, applying the principles laid
down in the case of Laxman Jagannth Yadav , we have no
hesitation in concluding that the impugned Notifications are bad in
law.
12 For the aforesaid reasons, the impugned Notifications
cannot be sustained and are required to be set aside and
accordingly set aside. Rule is made absolute in terms of prayer
clause (a) of the Petition, which reads as follows:
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“(a) by a Writ of Mandamus or writ, order or direction
of similar nature, your Lordships be pleased to quash
and set aside impugned Notification issued by
Respondent No.1 dated 26/06/2015 annexed at Exhibit
- E and Notification dated 26/06/2015 annexed at
Exhibit - F hereto appointing Respondent No.3 as
Administrator.”
13 In the facts and circumstances of the case, there shall be
no order as to costs.
(A.A. SAYED, J.) (NARESH H. PATIL, J.)
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