Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1918 OF 2015
(Arising out of SLP(C) No.30573 2012)
STATE OF KARNATAKA TR. … APPELLANTS
SEC. HSG. & URB. & ANR.
VERSUS
VASAVADATTA CEMENT & ANOTHER … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA,J
Delay condoned. Leave granted.
2. This appeal has been preferred by the appellant- State of
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Karnataka against the judgment dated 23 June, 2010 passed by
the High Court of Karnataka, Circuit Bench at Gulbarga in Writ
Appeal No.2999 of 2004 (LB-RES). By the impugned judgment, the
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Division Bench of the High Court while allowing the writ
appeal observed as follows:
“On a thorough consideration of the provision
of Section 9 and the notification produced
before court which is extracted above, it
discloses that there is no proper compliance of
posting the notification at the requisite places
as stated in Section 9.”
3. The factual matrix of the case is as follows:
The Government of Karnataka initially by draft
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Notification No. HUD 14 TML 84 dated 19 June/22nd July, 1986
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proposed to alter the existing limits of Town Municipal
Council (hereinafter referred to as the 'Council' for short)
Sedam for inclusion of Survey No. 630-642 within the municipal
limits of town municipality (hereinafter referred to as the
'municipality'), Sedam inviting objections and suggestions to
the proposal from persons likely to be affected therein. It
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was followed by Notification No.HUD 14 TMT 84 dated 15
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April/20 May, 1987, issued by Governor of Karnataka published
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in Karnataka Gazette dated 25 May, 1987 exercising the power
conferred by sub-Section (1) of Section 4 of Karnataka
Municipalities Act, 1961 (hereinafter referred to as the
'Act') altering the existing limits of the Council, Sedam as
detailed therein. A writ petition No. 10187 of 1987 was filed
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against the aforesaid notification by 1 respondent which was
permitted to be withdrawn in view of subsequent notification
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issued by State Government on 28 November, 1995.
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By the said notification dated 28 November, 1995, it was
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notified that having received no objection to the proposal
within a said period of 30 days from the date of publication
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of notification dated 26 September, 1995 inviting objections
from persons likely to be affected thereby in exercise of
power conferred by Section 3 read with Section 9 of the Act,
the Governor of Karnataka specified the smaller urban area in
Schedule 'A and the limits of which are specified in Schedule
'B' and further specified it to be called 'Town Municipal
Council Area of Sedam having regard to:
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1) the population of the area specified in
Schedule-A being not less than twenty thousand
but less than fifty thousand.
2) the density of population in such area being not
less than one thousand five hundred inhabitants
to one square kilometer of area:
3) the revenue generated for local administration
from such area from tax and non-tax sources in
the year of the last preceding census being not
less than Rs.9,00,000/- per annum;
4) Apart from the percentage of employment in non-
agricultural activities is not less than 15% of
the total employment.
4 . The first respondent filed another Writ Petition No.
14554/96 before the High Court of Karnataka, Bangalore
challenging the said notification and the same was summarily
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dismissed on 19 August, 1997 observing that the matter is
covered by the decision rendered in another case. A Civil
Petition No.1233/2000 in WP No. 14554/1996 was filed by
respondent to rectify the order passed by the learned Single
Judge. While reviewing the said order, the petition was
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allowed on 20 August, 2001 and the order dated 19 August,
1997 passed in the writ petition No. 14554/1996 was set aside
and the said writ petition was restored. However, after
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hearing the parties, the learned Single Judge on 24 May,
2004 dismissed the writ petition on the ground that the
action of inclusion of an area to the limits of an existing
Town Municipal Limits is essentially a conditional
legislation and hence judicial intervention is not
warranted.
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5. Against the said order, the respondent preferred the writ
appeal No. 2999/2004 which was allowed by the Division Bench
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by impugned judgment dated 23 June, 2010.
6. Learned counsel appearing on behalf of the appellant
while assailing the impugned judgment, submitted that the
procedure prescribed under Section 9 of the Act is
substantially followed and complied with in this case. The
third appellant under the directions of the first appellant
had posted the notices announcing the inclusion of the local
area within the existing municipal limits in all the
conspicuous places, calling for objection from the public
within 90 days but no objections were received within the time
stipulated.
7. According to the learned counsel for the 1st respondent,
the notice has to be posted in area sought to be added or
deleted in smaller urban areas. In the present case the
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proclamation has been neither posted in the area of the 1st
respondent factory which is a large area of around 1235.03
acres which has mini townships nor has been posted in any
other area sought to be included in the existing smaller urban
area. The only places where it has allegedly been posted are
four namely;
(1) Panchayat Office, Old Bazar, Sedam
(2) Railway Statio, Sedam
(3) Bus Stand, Sedam and
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(4) Notice Board of Town Municipal Council, Sedam;
which were existed in one area and none of them are in area
sought to be included in smaller urban area.
8. Further, according to the learned counsel for the 1st
respondent, the second part of Section 9 states that whenever
it is proposed to add to or to exclude from a smaller urban
area any inhabited area, it shall be the duty of the municipal
council also to post a copy of the proclamation in a
conspicuous place, meaning thereby in the inhabited area
sought to be included or excluded from the smaller urban area.
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The case of the 1 respondent is that it has a township which
is an inhabited area with housing for workmen, management,
etc. and thus it was mandatory for the municipal council to
post the proclamation in conspicuous places in the said
inhabited area which was sought to be included.
9. Learned counsel relied upon the following judgments for
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the proposition that the proclamation has to be posted in the
affected area or concerned locality and the objective of the
proclamation is that the affected persons could come to know
about the proposed change and that such a posting is mandatory
and not merely directory.
(a) (1985) 3 SCC 1, Collector (District
Magistrate) Allahabad & Anr. vs. Raja
Ram Jaiswal.
(b) (1991)1 SCC 401, Syed Hasan Rasul Numa &
Ors. vs. Union of India & Ors.
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(c) (2011) 10 SCC 714, J&K Housing Board and
Anr. vs. Kunwar Sanjay Krishan Kaul & Ors.
(d) (2012) 6 SCC 348, Klsum R.Nadiadwala vs.
State of Maharashtra & Ors.
10. We have heard the rival contentions raised by the parties
and perused the records.
11. For convenient reference, Section 9 of Karnataka
Municipalities Act is quoted below:
“9. Procedure for Constitution, abolition,
etc. of smaller urban areas:
Not less than thirty days before the
publication of any notification declaring any
local area to be smaller urban area, or
altering the limits of any such smaller urban
area or declaring that the local area shall
cease to be smaller urban area, the Governor
shall cause to be published in the official
gazette in English and Kannada, and to be
posted up in conspicuous placed in the said
local area in Kannada a proclamation announcing
that it is proposed to constitute the local
area to be smaller urban area or to alter the
limits of the smaller urban area in a certain
manner or to declare that the local area shall
cease to be a smaller urban area, as the case
may be, and requiring all persons who
entertain any objection to the said proposal to
submit the same, with the reasons therefore,
in writing to the Director of Municipal
Administration within thirty days from the date
of the said proclamation, and whenever it is
proposed to add or exclude from a smaller urban
area any inhabited area, it shall be the duty
of the municipal council also to cause a copy
of such area. The Director of Municipal
Administration shall, with all reasonable
dispatch forward every objection so submitted
to the Governor.
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No such notification as aforesaid shall be
issued by the Governor unless the objection, if
any, so submitted are in its opinion insufficient
or invalid.”
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Section 9 prescribes a mandate which is to be followed by
the Governor before publication of notification declaring any
local area to be smaller urban area; or altering the limits of
any such small urban area; or declaring that the local area
shall cease to be a smaller urban area. Firstly, a
proclamation announcing the object/proposal of such
notification should be published in the Official Gazette in
both English and Kannada language. Secondly, such proclamation
should be posted in conspicuous places in the said local area
'in Kannada'. Thirdly, such proclamation shall require all
persons who has any objection to the said proposal to submit
the same stating reasons within thirty days from the date of
such proclamation.
Section 9 further stipulates that whenever it is proposed
to add or exclude from a smaller urban area any inhabited
area, it shall be the duty of the municipal council to cause a
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copy of such proclamation to be posted up in conspicuous
places in such area. The phrase “such area” used herein means
the inhabited area which is proposed to be added or excluded
from the smaller urban area.
12. Section 9 of the Act has to be read in the light of
Article 243Q of the Constitution of India which is as under:
“ 243Q . Constitution of Municipalities:
(1) There shall be constituted in every
State,-
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(a) a Nagar Panchayat (by whatever name called
) for a transitional area, that is to
say, an area in transition from a rural
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 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 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 general
for local economic importance or such other
factors as may be deem fit, specify by public
notification or the purposes of this Part.”
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13. The Provision of Section 9 is somewhat similar to Section
4 of the Land Acquisition Act, 1894 whereunder the posting of
the notice in conspicuous/convenient places is mandatory.
If the argument advanced by the learned senior counsel
for the first respondent is accepted, in that case every
affected person whose land is sought to be included for the
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purpose of alteration of the limits of the smaller urban area
would claim that such notice must be posted in his land.
14. The Office of the Collector, Panchayat Office, Office of
Tehsildar, Office of municipality, railway station and bus
stand, etc. of the local area are public places; which are
expected to be visited by general public for one or the other
reason. Those places can be safely expected to be
conspicuous/convenient places for posting a notice about
declaration of local area to be smaller urban area or altering
the limit of any such smaller urban area as is done in the
case of land acquisition.
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15. If the stand of the 1 respondent is accepted that the
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notice should have been posted within the township of 1
respondent, then it would frustrate the objective of Section
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9 of the Act as other affected persons whose land would also
come under the purview of the said notification might not have
any access to such notice posted within the boundaries of the
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1 respondent's factory, being not a public place. In such
case, every individual/affected persons will claim posting of
such notice at their land which will amount to giving
individual notice to all affected persons.
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16. Notification dated 3 October, 1995 was posted at four
conspicuous places, the English version of which reads as
follows:
“No.TMC;95-96 Office of the TMC
Sedam, dated 3.10.1995
NOTIFICATION
Sub.: Publication of Govt. Circular
Ref.: Govt. Circular, bearing
No.:NE:407:MLR:95, Bangalore, Dated
26.09.1995
–-------
With reference to the above subject, the
public of the Town Municipal area are informed
that vide Circular stated in the reference,
the boundaries of Sedam Town Municipalities is
proposed to be altered to extend the municipal
area. Any person having objections to the said
proposal can file their written objections
within 30 days. The public area hereby
informed of the same by this notification.
Sd.
Chief Officer
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SEDAM”
It is directed that the copy of the
Notification should be posted at the following
places:
i) Panchayat Office, Old Bazar, Sedam
ii) Railway Station, Sedam
iii)Bus Stand, Sedam
iv) Notice Board of Town Municipal Council,
Sedam.”
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17. Learned counsel for the 1st respondent accepted that the
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Panchayat Office of the 1 respondent is at Old Bazar, Sedam,
nearest railway station is at Sedam and the bus stand for the
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employees of the 1 respondent is at Sedam. This indicates
that all the persons, who are said to be affected by the
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notification, were informed sufficiently by notice dated 3
October, 1995 posted at the above said conspicuous places.
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18. Learned senior counsel for the 1 respondent next
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contended that only the factory and residential area of the 1
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respondent was added by notification dated 28 November, 1995
but such submission cannot be accepted in view of the fact
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that apart from the land of 1 respondent, land belonging to
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others were also shown in the said notification dated 28
November, 1995.
19. However, on perusal of the original record, we find two
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notifications both dated 3 October, 1995 having same number
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are on record. Per se, both notifications dated 3 October,
1995 are same but there is a substantial difference in the
last paragraph which mentions the places where copies of the
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notification were to be posted. In the 1 notification dated
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3 October, 1995, which appears to be original, it has been
shown that the notice to be posted at four places namely,
(i) Panchayat Office, Old Bazar, Sedam; (ii) Railway Station,
Sedam; (iii)Bus Stand, Sedam and (iv) Notice Board of Town
Municipal Council, Sedam. It is an old paper, laminated to
ensure that it should not be damaged and in the back of it
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apart from thumb impressions, signatures also have been
obtained from different individuals to show that the
notification was posted in presence of those witnesses.
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The other notification dated 3 October, 1995 shows that
direction has been issued to post the said notification at
nine places, i.e. five more places apart from the aforesaid
four places mentioned in the first notification. The
additional five places include the premises of the first
respondent. The second notification is signed in green ink by
some other officer. Prima facie it appears that the
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notification dated 3 October, 1995 containing nine
conspicuous places wherein it was to be notified, signed in
green ink by some officer has been prepared subsequently.
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20. Learned counsel appearing on behalf of the 1 respondent
requested the Court to initiate contempt proceedings against
the concerned official and to dismiss the appeal as the
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document has been created to mislead the Court.
21. The appeal has been preferred by the State of Karnataka.
The State has neither created any document nor filed the same
before the High Court or this Court. If any document is
created by any officer to keep it on record so as to produce
it before the Court, it is a serious matter which requires to
be inquired into by the concerned authority. In view of the
fact that a detailed inquiry is required, we find it more
feasible to direct the State Government to inquire into the
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matter and, if so necessary, file an FIR against the alleged
officers who might have created the document containing the
name of nine conspicuous places in the so called notification
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dated 3 October, 1995, signed by the Chief Officer, Sedam in
green ink.
The Chief Secretary, State of Karnataka is directed to
hold an inquiry with regard to notification No. TMC:SEDAM:95-
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96 dated 3 October, 1995 issued from the office TMC, Sedam,
signed by Chief Officer, Sedam in green ink wherein nine
places have been shown for posting the notifications. If it is
found to be a document created subsequently, an FIR to this
effect be lodged against the concerned officials for forging
documents. Departmental proceedings be also initiated and an
appropriate action be taken.
22. The appeal is allowed with the aforesaid observations and
directions.
JUDGMENT
………………………………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………………………………J.
(VIKRAMAJIT SEN)
NEW DELHI,
FEBRUARY 16, 2015.
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