State
of Maharashtra & Ors Vs. Jalgaon Municipal
Council & Ors [2003] Insc 85 (14 February 2003)
R.C.
Lahoti & Brijesh Kumar.
(Arising
out of SLP(C) Nos.1690-1691/2002) R.C. Lahoti, J.
Leave
granted in both the SLPs.
In the
year 2001, Jalgaon, a city situated in the State of Maharashtra, was an urban
area administered by a Municipal Council constituted under the provisions of
the Maharashtra Municipal Council Nagar Panchayat and Industrial Townships Act
1965 (hereinafter, 'the M.R. Municipal Council Act', for short). The term of
the Municipal Council as existing then was to end on 16th December, 2001.
In
this judgment we would also be making reference to the provisions of the Bombay
Provincial Municipal Corporation Act 1949 which for the sake of convenience and
brevity will be referred to as B.P. Municipal Corporation Act.
Part
IXA came to be inserted into the Constitution of India by Seventy Fourth
Amendment w.e.f. 1.6.1993. This Part contemplates constitution of Nagar Panchayats,
Municipal Councils and Municipal Corporations in every State. The three tools
of local self government are contemplated by the Constitution to administer a
transitional area, a smaller urban area and a larger urban area respectively.
Article 243Q(2) defines these three areas to mean such areas 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 the Governor may deem fit specify by public notification for
the purpose of Part IXA. We are concerned with smaller or larger urban areas
based whereon a Municipal Council or a Municipal Corporation, respectively,
shall be constituted. It is not disputed that so far as the factor of
population is concerned, the bench mark dividing the areas to be administered
by Municipal Council or by Municipal Corporation, as the case may be, is the
population of three lakhs. The urban area having population less than three lakhs
is a smaller urban area to be administered by Municipal Council and an urban
area having a population of not less than three lakhs is a larger urban area to
be administered by a Municipal Corporation.
On
13.8.2001, the Directorate of Census Operations, Maharashtra, published Census of India 2001, Series 28 Maharashtra,
Provisional Population Totals, Paper-2 of 2001, Rural Urban Distribution of
Populations. According to the Census 2001, the urban population of Jalgaon, the
city having the status of Municipal Council, was 3,68,579 persons. The Census
also classifies the said total figure of persons by reference to age groups and
literacy levels with which we are not concerned. The factum of publication of
population totals as on 13.8.2001 and the correctness of the figure of
population is not disputed by any of the parties.
The
proposal for converting the constitution of Jalgaon city from Municipal Council
into a Municipal Corporation was under consideration of the State Government
for quite some time. According to the appellant State of Maharashtra, ever
since 1997 the thought was receiving consideration of the State Government that
looking to all the relevant factors Jalgaon was appropriately suited to be
upgraded to the status of a Municipal Corporation. Consultation in that behalf
with the Municipal Council of Jalgaon by the State Government had been going on
since 1993 but did not materialize as the official figures of population of Jalgaon
urban area, as evidenced by the preceding Census of 1991, had not touched the
bench mark of three lakhs.
On
16th October, 2001, the State Government published two proclamations,
respectively under the provisions of the B.P. Municipal Corporations Act and
M.R. Municipal Council Act reproduced as under:- "NOTIFICATION Urban
Development Department Mantralaya, MUMBAI 400 032.
Dated the 16th October 2001 Bombay Provincial Municipal
Corporation Act, 1949 No. GEN 1596/194/C.R. 126/96/UD-24 __ The following draft
of notification, which the Government of Maharashtra proposes to make in
exercise of the powers conferred by sub-Section (2) of Section 3 of the Bombay
Provincial Municipal Corporation Act, 1949 (Bom. LIX of 1949), is hereby
published, as required by sub-Section (4) of said Section 3 of the said Act,
for the information of all persons likely to be affected thereby and notice is
hereby given that the said draft will be taken into consideration by the
Government of Maharashtra on or after day of 18th December, 2001.
2. Any
objection or suggestion, which may be received by the Collector of the District
of Jalgaon, from any person with respect to the aforesaid draft, before the
aforesaid date will be considered by the Government.
NOTIFICATION
No. GEN 1596/194/C.R. 126/96/UD-24 Whereas the total population of the Jalgaon
Municipal Council comprising Jalgaon smaller urban area, District Jalgaon, is
according to the provisional figures of the Census of the year 2001, is
3,68,579;
And
whereas, the Government of Maharashtra having regard to the factors mentioned
in clause (2) of Article 243-Q of the Constitution of India considers it
expedient to declare, under sub-Section (2) of Section 3 of the Bombay
Provincial Municipal Corporations Act, 1949 (Bom. LIX of 1949), (hereinafter
referred to as "the said Act"), the said Jalgaon smaller urban area
of the Jalgaon Municipal Council to be larger urban area;
Now,
therefore, in exercise of the powers conferred by sub-Section (2) read with
sub-Section (2A) of Section 3 of the said Act, and after previous publication
of the draft notification as required by sub- Section (4) of said Section 3,
the Government of Maharashtra hereby specifies the 18th December, 2001 to be
the date from which the area specified in the Schedule appended hereto, which
comprises of the whole of the Jalgaon smaller urban area in District Jalgaon,
shall be Jalgaon larger urban area, which shall form a city, having a
Corporation to be known by the name of "Municipal Corporation of the City
of Jalgaon" for the purpose of the said Act.
SCHEDULE
Area, which shall form the Jalgaon larger urban area, which shall form a city,
having a Corporation to be known by the name of "Municipal Corporation of
the City of Jalgaon" "Jalgaon smaller urban area Dist. Jalgaon"
By Order and in the name of the Governor of Maharashtra.
Sd/- (Ramanand
Tiwari) Principal Secretary to Governmment . . . . . . . .
PROCLAMATION
Urban Development Department Mantralaya, Mumbai 400 032 Dated the 16th October 2001 Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act,
1965.
No.
GEN 1596/194/C.R. 126/96/UD-24: Whereas by Government Notification, Urban
Development Department No. GEN 1596/194/C.R. 126/96/U.D.-24, dated the 16th
October 2001, issued in exercise of the powers conferred by sub-Section (2) of
Section 3 of the Bombay Provincial Municipal Corporations Act, 1949 (Bom. LIX
of 1949), the Government of Maharashtra has announced its intention to declare
the Jalgaon smaller urban area in the Jalgaon District to be a larger urban
area which shall form a city and shall have a corporation by the name
"Municipal Corporation of the City of Jalgaon".
Now,
therefore, in pursuance of the provisions of sub-Section (3) of Section 3 read
with sub-Section (2) of Section 6 of the Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships Act, 1965 (Mah. XL of 1965) (hereinafter referred to
as "the Municipal Councils Act"), the Government of Maharashtra
hereby announces its intention to issue a notification under clause (d) of
sub-Section (1) of Section 6 of the Municipal Councils Act that the existing Jalgaon
smaller urban area of the Jalgaon Municipal Council shall cease to be a
municipal area within effect from the date of coming into force of the
notification issued under sub-Section (2) of Section 3 of the Bombay Provincial
Municipal Corporations Act, 1949 (Bom. LIX of 1949), specifying Jalgaon larger
urban area, which shall form a city and shall have a Municipal Corporation
known by the name "Municipal Corporation of the City of Jalgaon".
2. All
persons who entertain any objections to the said proposal are required to
submit the same, with reasons therefore in writing to the Collector of the
District of Jalgaon within two months from the date of publication of this
Proclamation in the Official Gazette.
By
Order and in the name of the Governor of Maharashtra.
Sd/- (Ramanand
Tiwari) Principal Secretary to Government" On 15th November 2001, another
two proclamations were issued under the said two acts respectively and by
reference to the provisions mentioned therein, which are reproduced hereunder:
PROCLAMATION
Urban Development Department Mantralaya, Mumbai 400 032 Dated the 15th November
2001 Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships
Act, 1965 No. GEN 1596/194/CR-126/96/UD-24:
Whereas
by Government proclamation, Urban Development Department No. GEN 1596/194/CR-
126/96/UD-24 dated the 16th October, 2001, issued in exercise of the powers
conferred by sub-Section (3) of Section 3 read with sub-Section (2) of Section
6 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965 (Mah. XL of 1965 (hereinafter referred to as
"Municipal Councils Act"), the Government of Maharashtra invited
objections within two months to its proposal to notify that the Jalgaon smaller
urban area of Jalgaon Municipal Council shall cease to be a Municipal area
within the meaning of the Municipal Councils Act;
And
whereas the provisions of sub-Section (3) of the Municipal Councils Act having
been retrospectively amended with effect from the 16th October, 2001, by the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships (Second
Amendment) Ordinance, 2001 (Mah. Ord. XXXVII of 2001), with a view to provide
that the objection to the proposal shall be entertained within a period of
thirty days on such other period not less than thirty days as may be specified
by the State Government by a notification in the Official Gazette.
Now,
therefore, in exercise of the powers conferred by sub-section (3) of Section 3
of the Municipal Councils Act as amended by the Maharashtra Municipal Councils,
Nagar Panchayats and Industrial Townships (Second Amendment) Ordinance, 2001,
the Government of Maharashtra hereby specifies the 21st November, 2001 to be
the date on or before which the objections pursuant to the said proclamation
shall be entertained.
By
Order and in the name of the Governor of Maharashtra. Sd/- (Ramanand Tiwari)
Principal Secretary to Government" "NOTIFICATION Urban Development
Department Mantralaya, Mumbai 400 032.
Dated
the 15th November 2001 Bombay Provincial Municipal Corporation Act, 1949 No.
GEN 1596/194/C.R. 126/96/UD-24:- In exercise of the powers conferred by sub-
section (2) of Section 3 read with sub-Section (4) thereof of the Bombay
Provincial Municipal Corporations Act, 1949 (Bom. LIX of 1949), and of all
other powers enabling it in that behalf, the Government of Maharashtra hereby
appoints 21st November, 2001 to be the date on or before which the objections
or suggestions in pursuance of the Government Notification Urban Development
No. GEN 1596/194/C.R. 126/96/UD-24 dated the 16th October, 2001 shall be
received and for that purpose, amends the said notification as follows,
namely:- In the said notification, for the words and figures "18th day of
December 2001", wherever it occurs the words and figures "21st
November 2001" shall be substituted.
By
Order and in the name of the Governor of Maharashtra. Sd/- (Ramanand Tiwari)
Principal Secretary to Government" Digressing a little from narration of
events, it would be appropriate to notice the relevant Constitutional and
statutory provisions as the same would facilitate the appreciation of relevant
events which followed. So far as the Constitution is concerned, the following
are the relevant articles contained in Part IXA of the Constitution:- 243P.
Definitions.__ In this Part, unless the context otherwise requires, __ xxx xxx xxx
xxx xxx xxx xxx xxx
(d)
'Municipal area' means the territorial area of a Municipality as is notified by
the Governor;
(e)
'Municipality' means an institution of self- government constituted under
article 243Q;
xxx xxx
xxx xxx xxx xxx xxx xxx
(g) 'population'
means the population as ascertained at the last preceding census of which the
relevant figures have been published.
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 intransition 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 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 regarded 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. xxx xxx xxx xxx xxx
xxx xxx xxx
243U.
Duration of Municipalities, etc. __
(1)
Every Municipality, unless sooner dissolved under any law for the time being in
force, shall continue for five years from the date appointed for its first
meeting and no longer:
Provided
that a Municipality shall be given a reasonable opportunity of being heard
before its dissolution.
(2) No
amendment of any law for the time being in force shall have the effect of
causing dissolution of a Municipality at any level, which is functioning
immediately before such amendment, till the expiration of its duration
specified in clause (1).
(3) An
election to constitute a Municipality shall be completed, __
(a) before
the expiry of its duration specified in clause (1);
(b) before
the expiration of a period of six months from the date of its dissolution:
Provided
that where the remainder of the period for which the dissolved Municipality
would have continued is less than six months, it shall not be necessary to hold
any election under this clause for constituting the Municipality for such
period.
(4) A
Municipality constituted upon the dissolution of a Municipality before the
expiration of its duration shall continue only for the remainder of the period
for which the dissolved Municipality would have continued under clause (1) had
it not been so dissolved." On 15th November, 2001, the Governor of Maharashtra
promulgated Maharashtra Ordinance No. 37 of 2001. The text of the Ordinance is
brief and it would be useful to set out the same in its entirety as under:-
"MAHARASHTRA GOVERNMENT GAZETTE URBAN DEVELOPMENT DEPARTMENT MANTRALAYA,
MUMBAI 400 032, DATED 15TH NOVEMBER, 2001 MAHARASHTRA ORDINANCE NO. XXXVII OF
2001 AN ORDINANCE Further to amend the Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships Act, 1965 WHEREAS both Houses of the State Legislature
are not in session;
AND
WHERAS the Governor of Maharashtra is satisfied that circumstances exist which
render it necessary for him to take immediate action further to amend the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, for
the purposes hereinafter appearing;
NOW,
THEREFORE, in exercise of the powers conferred by clause (1) of article 213 of
the Constitution of India, the Governor of Maharashtra is hereby pleased to
promulgate the following Ordinance, namely:
1.
Short title and commencement
(1)
This Ordinance may be called the Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships (Second Amendment) Ordinance, 2001.
(2) It
shall be deemed to have come into force on the 16th October, 2001.
2.
Amendment of section 3 of Maharashtra XI of 1965 In section 3 of the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965
(hereinafter referred to as "the Municipal Council Act") in sub
section (3) for the words "two months" the words "not less than
thirty days" shall be substituted.
3.
Removal of doubt For the removal of doubt it is hereby declared that
sub-section (3) of Section 3 of the Municipal Councils Act having been amended
retrospectively, with effect from the 16th October, 2001 by the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships (Second
Amendment) Ordinance, 2001 (hereinafter, in this section, referred to as
"the said Ordinance") and accordingly
(i)
any Government Proclamation Notification Order or Instrument issued or
purported to have been issued in exercise or in pursuance of the provisions of
sub-section (3) of section 3 read with sub-section (2) of section 6 of the
Municipal Councils Act on or after the 16th October, 2001 till the date of
publication of the said Ordinance, shall be and shall be deemed to have been
issued under the said sub-section (3) as amended by the said Ordinance
(hereinafter, referred to as "the amended sub-section(3)"); and
(ii)
the two months period specified for entertaining any objections to a proposal
contained in such Government Proclamation, Notification, Order or Instrument
shall be read and shall always be read as a period being not less than the period
of thirty days as specified or may be specified under the amended sub- section
(3), in such Proclamation, Notification, Order or Instrument, as the case may
be, for the date of publication of such Proclamation, Notification, Order or
Instrument in this Official Gazette; and
(iii)
it shall be lawful for the State Government to consider any objections that
might have been received within the period or amended period as specified in
such Proclamation, Notification, Order or Instrument, as the case may be, from
the date of publication of such Proclamation, Notification, Order or Instrument
in the Official Gazette, and thereafter after considering the same, issue the
final Notification, Order or Instrument, in respect of the same, as the State
Government may deem fit; and
(iv)
no such final Notification, Order or Instrument issued by the State Government
after considering any such objection after the said period, shall be called in
question or deemed to be invalid only on the ground that the State Government
had issued such final Notification, Order or Instrument, before the expiry of
the period specified for entertaining any objections in any such Government
Proclamation, Notification, Order or Instrument, before its amendment as
provided by section 2."
The
Ordinance is accompanied by a statement, parts 2 and 3 whereof are relevant and
hence are extracted and reproduced hereunder:- "2. Sub section (2) of
section 3 of the Bombay Provincial Municipal Corporations Act, 1949, empowers
the State Government to specify, by notification in the Official Gazette, any
urban area with a population of not less than three lakhs as a larger urban
area which shall be a city and shall have a Municipal Corporation under the
said Act. The provincial census figures for the census held in the year 2001
shows that the population of the Municipal Councils of Mira Bhayandar, Bhivandi
Nijampur, Malegaon, Ahmednagar, Dhule and Jalgaon is
more than three lakhs. Therefore, as provided in sub-section (2) of section 3
of the said Act, the Government has decided to constitute a Municipal
Corporation for each such area and therefore has issued six different
preliminary notifications on the 16th October, 2001 inviting objections within a period of two months from the publication
of the proposal to constitute Municipal Corporations for those areas. The said
period would therefore, expire on the 15th December, 2001.
3. The
general elections to four out of the said Municipal Councils, that is to say to
the Municipal Councils of Bhivandi-Nijampur, Malegaon, Ahmednagar and Jalgaon,
are scheduled to be held in the first week of December, 2001. If the proposal
of the Government to establish Municipal Corporations in those four areas is
finalized in the meanwhile, the expenditure for holding the elections of those
four Municipal Councils would be an avoidable expenditure of public money, and
avoidable wastage of time and energy of Government machinery. The Government,
therefore, considers it expedient to provide that the period within which
objections to the issuance of a notification shall be entertained should be
curtailed from a period of two months to such period being not less than thirty
days, by suitably amending the relevant provision of the Municipal Councils
Act. Such amendment is aimed at enabling the Government not to be compelled to
hold the ensuring elections of the said Municipal Councils and thereby stop the
wasteful expenditure on holding of two elections that is to say of the said
Municipal Councils, and then for Corporations." It is not disputed that
the two proclamations dated 15th November, 2001 extracted and reproduced hereinabove were published in the Government
Gazette dated 15th
November, 2001.
However, in the newspaper the proclamations were published only on 19th November, 2001.
The
time prescribed for preferring the objections came to an end on 21st November, 2001.
The
Ordinance was repealed and replaced by an Act in due course of time. The
provisions of the Act are the same as that of the Ordinance.
As
soon as the proclamations setting out the intention of the State Government to
constitute a Municipal Corporation replacing the Municipal Council for the city
of Jalgaon came to the notice of Jalgaon
Municipal Council, a meeting of the Municipal Council was convened to be held
on 21.10.2001. It appears that several corporators had invited the attention of
the Municipal Council to consider the issue so as to place on record
suggestions and objections of the Municipal Council as regards the proposed
change and forward the resolution for the consideration of the State
Government. Resolution No.429A dated 21.10.2001, unanimously passed by majority
of the Councillors voting for the resolution, is a long one which need not be
reproduced in extenso. Suffice it to state that the resolution displays
conscious consideration of the Municipal Council of the factors like:
(i) population,
(ii) area
and development of the city,
(iii) financial
aspect,
(iv) administrative
aspect,
(v)
Government schemes,
(vi) educational
requirements of population, and
(vii) development
works in progress, etc.
The
gist of the opinion, as recorded in the resolution, is that the Municipal
Council was working well, had successfully augmented its resources so as to be
financially in surplus, was well administered and if on account of conversion
into Municipal Corporation, the government aid so far enjoyed by the Municipal
Council is discontinued, it will not be good for such educational institution
schemes and activities as are depending on the financial support of the
government. In particular it is stated that the Municipal Council had
undertaken several development works for the welfare of the community which
will suffer an adverse impact on account of the change. At the end there is a
passing reference without any particulars that the decision of conversion into
a Corporation was taken in "political interest" and under pressure of
"some political leader". Two points need to be noted: firstly, the
resolution does not dispute the population of Jalgaon urban area having crossed
the bench mark of three lakhs. and secondly, the resolution does not also
dispute the availability of anyone of the relevant factors referred to in
sub-Article (2) of Article 243Q of the Constitution, the factors on the
availability whereof depends the decision of the Governor to classify an area
into "a transitional area", "a smaller urban area" or
"a larger urban area".
It is
also not disputed that within the period appointed for preferring the
objections by virtue of the two sets of proclamations read together, i.e.
between 16.10.2001 and 21.11.2001, 239 objections were received. The objections
in substance highlighted only two issues: firstly, that the development
activities in progress and undertaken by the Municipal Council will be hampered
by switching over to constitution of a Municipal Corporation and secondly, the
constitution of Municipal Corporation would result in imposition of newer and
higher taxes casting additional financial burden on the inhabitants of the
area. Here again it is pertinent to mention that none of the 239 objections
disputes the correctness of the figure of population having crossed the bench
mark of three lakhs or the availability of any of the relevant factors
contemplated by Article 243Q(2).
There
were seven urban areas including Jalgaon which were sought to be upgraded by
the State Government from Municipal Council to Municipal Corporation. While the
final notification was yet to be issued, several writ petitions came to be
filed in the High Court laying challenge to the proposal of the State
Government. We are told that the writ petition relating to Jalgaon Municipal
Council has been disposed of by the High Court vide the impugned judgment and
so far as the other writ petitions are concerned they are pending in the High
Court presumably awaiting the outcome of the present appeal. So far as the case
at hand is concerned, the writ petition was to be filed on 20th November, 2001. By an interim order made on
21.11.2001, the High Court directed rule to issue and hearing to take place
peremptorily on 27th
November 2001 as the
first item on board.
The
pleadings were directed to be completed on or before 26th November, 2001. The High Court also directed:-
"xxx xxx xxx xxx
3. The
Authority who has invited objections pursuant to the notification issued under
section 3 of the Bombay Provincial Municipal Corporations Act, 1948, shall give
hearing to all the objectors. After hearing all the objections (who remain
present and willing to appear before the Authority on the date given), it is
understood that hearing of objections need not be adjourned on any count. In
case the hearing of objection is concluded on 26th November, 2001, the authority concerned shall not take any
decision.
4.
Petition is to be heard finally on 27th November, 2001. xxx xxx xxx xxx
6. All
further actions in the matter, will be subject to final outcome of this
petition."
In
view of the abovesaid interim order passed by the High Court, the State
Government has not taken any final decision in the matter. The process of
constitution of Municipal Corporation was therefore stalled.
However
in-between the State Election Commission had announced elections for the
constitution of the next Municipal Council being held on 9th December, 2001,
which elections were held as announced and the newly elected Municipal Council
has assumed office on 17.12.2001, soon on the expiry of the term of the
preceding Municipal Council and such new Municipal Council is in place as on
the day.
The
writ petition was heard by a division Bench of the High Court and disposed of
by the impugned judgment dated 10/11.12.2001. The writ petition has been
allowed and the two sets of notifications/proclamations dated 16.10.2001 and
15.11.2001 in respect of the Municipal Council, Jalgaon have been directed to
be quashed and set aside. Soon on the pronouncement of judgment, the learned
counsel for the State of Maharashtra made an oral application for staying the
operation of the judgment which prayer was refused by the High Court on the ground
that the election to the Municipal Council, Jalgaon had already been held, the
results announced and the elected body was scheduled to assume office on
17.12.2001 and therefore there was no justification for staying the operation
of the judgment.
A perusal
of the judgment of the High Court shows that in substance four grounds have
prevailed with the High Court for granting the relief to the writ petitioners:
firstly, that the constitutional scheme of Part IXA of the Constitution
contemplates the Municipal Council being taken over and succeeded by a
Municipal Corporation without any hiatus in-between and as the term of the then
existing Municipal Council was coming to an end on 16.12.2001 while the State
Government/State Election Commission had not taken any steps for constitution
of new Municipal Corporation so as to be in place and in existence ready to
take over from the Municipal Council as its successor, the same was subversive
of the spirit of Part IXA of the Constitution which contemplates the areas
being administered by a Municipality (as defined in clause (e) of Article 243P
as an institution of self government constituted under Article 243Q); the
hiatus would result in administrator necessarily and per force of the events
stepping in and taking over the Municipal Council; secondly, the census figure
of August, 2001 on which was founded the action of the State Government were
only "provisional" and not final and hence the action was premature;
thirdly, the population of the area was denied an effective opportunity of
raising objections in view of the set of proclamations dated 15.11.2001
curtailing the period appointed by set of proclamations dated 16.10.2001; the
action was vitiated by throttling of the principles of natural justice, the
observance whereof was statutorily mandated, and lastly, there was no
consultation with Municipal Council as contemplated by proviso to sub-Section
(1) of Section 6 of M.R. Municipal Councils Act.
The
submissions before this Court made with forensic ability and precision by the
learned senior counsel and counsel for the parties centered around the four
issues projecting from the abovesaid four findings of the High Court. We would
take up each one of the said issues seriatim for consideration. Let the
relevant statutory provisions, which shall be required to be referred to, be
now set out:
The Maharashtra Municipal Council Act, 1965
"2. Definitions.
In
this Act, unless the context otherwise requires,__ xxx xxx xxx xxx (24)
"municipal area" means the territorial area of a Council or a Nagar Panchayat.
3.
Specification of areas as smaller urban areas.
(1) A
Council for every municipal area existing on the date of coming into force of
the Maharashtra Municipal Corporations and Municipal Councils (Amendment) Act,
1994 specified as a smaller urban area in a notification issued under clause
(2) of article 243-Q of the Constitution of India in respect thereof, shall be
deemed to be a duly constituted Municipal Council known by the name. Municipal
Council.
(2)
Save as provided in sub-section (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, any local area as a
smaller urban area:
Provided
that no such area shall be so specified as a smaller urban area unless the
State Government, after making such inquiry as it may deem fit, is satisfied
that,__
(a) the
population of such area is not less than 25,000; and
(b) the
percentage of employment in non- agricultural activities in such area is not
less than thirty-five per cent.
(2A)
For every smaller urban area so specified by the State Government under
sub-section (2), there shall be constituted a Municipal Council known by the
name . Municipal Council;
(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 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 two months 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 despatch, forward any objection so
submitted to the State Government.
(5) No
such notification as aforesaid shall be issued by the State Government unless
the objections, if any, so submitted are in its opinion insufficient or
invalid.
6.
Alteration of the limits of a municipal area.
(1)
Subject to the provisions of sub-section (2) of section 3, the State Government
may by notification in the Official Gazette__
(a) alter
the limits of a municipal area so as to include therein or to exclude therefrom
such local area as may be specified in the notification;
(b) amalgamate
two or more municipal areas so as to form one municipal area;
(c)
split up any municipal area into two or more municipal areas;
(d) declare
that the whole of any local area comprising a municipal area shall cease to be
a municipal area;
Provided
that, no such notification shall be issued by the State Government under any of
the clauses of this sub-section without consulting the Municipal Council or
Councils and other local authorities concerned.
(2)
Prior to the publication of a notification under sub-section (1), the procedure
prescribed in sub- sections (3) (4) and (5) of section 3 shall mutatis mutandis
be followed." Bombay Provincial Municipal Corporations
Act, 1949 "3. Specification of larger urban areas and constitution of
Corporations.
(1)
The Corporation for every City constituted under this Act existing on the date
of coming into force of the Maharashtra Municipal Corporations and Municipal
Councils (Amendment) Act, 1994, specified as a larger urban area in the
notification issued in respect thereof under clause (2) of Article 243-Q of the
Constitution of India, shall be deemed to be a duly constituted Municipal
Corporation for the larger urban area so specified forming a City, known by the
name "The Municipal Corporation of the City of . . . . . . . .";
(2)
Save as provided in sub-section (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, any urban area with a
population of not less than three lakhs as a larger urban area;
(2A)
Every larger urban area so specified by the State Government under sub-section
(2) shall form a City and there shall be a Municipal Corporation for such
larger urban area known by the name of the Municipal Corporation of the City of
. . . . . . . . ;
(3)(a)
Subject to the provisions of sub-section (2), the State Government may also
from time to time after consultation with the Corporation by notification in
the Official Gazette, alter the limits specified for any larger urban area
under sub-section (1) or sub-section (2) so as to include therein, or to
exclude therefrom, such area as is specified in the notification.
(b)
Where any area is included within the limits of the larger urban area under
clause (a), any appointments, notifications, notices, taxes, orders, schemes, licences,
permissions, rules, bye-laws or forms made, issued, imposed or granted under
this Act or any other law, which are for the time being in force in the larger
urban area shall, notwithstanding anything contained in any other law for the
time being in force but save as otherwise provided in section 129A or any other
provision of this Act, apply to and be in force in the additional area also
from the date that area is included in the City.
(4)
The power to issue a notification under this section shall be subject to the
condition of previous publication.
5.
Constitution of Corporation.
(1)
Every Corporation shall, by the name of "The Municipal Corporation of the
City of . . . . . . . . .", be a body corporate and have perpetual
succession and a common seal and by such name may sue and be sued.
(2)
Each Corporation shall consist of, __
(a) such
number of councillors, elected directly at ward elections, as is specified in
the table below:- TABLE Population Number of Councillors
(i)
Above 3 lakhs and upto 6 lakhs The minimum number of elected councillors shall
be 65.
For
every additional population of 15,000 above 3 lakhs, one additional councillor
shall be provided, so however that the maximum number of elected councillors
shall not exceed 85.
(ii)
Above 6 lakhs and upto 12 lakhs The minimum number of elected councillors shall
be 85.
For
every additional population of 20,000 above 6 lakhs, one additional councillor
shall be provided, so however, that the maximum number of elected counsillors
shall not exceed 115.
(iii)
Above 12 lakhs and upto 24 lakhs The minimum number of elected councillors
shall be 115.
For
every additional population of 40,000 above 12 lakhs, one additional councillor
shall be provided, so however, that the maximum number of elected counsillors
shall not exceed 145.
(iv)
Above 24 lakhs The minimum number of elected councillors shall be 145.
For
every additional population of 1 lakh, one additional councillor shall be
provided so that the maximum number of elected counsillors shall be 221.
(b) such
number of nominated councillors not exceeding five, having special knowledge or
experience in Municipal Administration to be nominated by the Corporation in
such manner as may be prescribed;
(3)
The State Election Commission shall, from time to time, by notification in the
Official Gazette, specify for each City the number and boundaries of the wards
into which such City shall be divided for the purpose of the ward election of councillors
so that, as far as practicable, all wards shall be compact areas and the number
of persons in each ward according to the latest census figures shall approximately
be the same. Each of the wards shall elect only one councillor:
Provided
that, no notification issued under sub- section (3), whether before or after
the commencement of the Maharashtra Municipal Corporations, Municipal Councils,
Nagar Panchayats and Industrial Townships (Third Amendment) Act, 1995, shall
have effect except for the general election held next after the date thereof
and for subsequent elections.
Provided
also that, before any notification is issued under sub-section (3), a draft thereof
shall be published in the Official Gazette, and in such other manner as in the
opinion of the State Election Commissioner is best calculated to bring the
information to the notice of all persons likely to be affected thereby,
together, with a notice specifying the date on or before which any objections
or suggestions will be received, and the date after which the draft will be
taken into consideration." Q.1. Whether any hiatus between abolition of
Municipal Council and constitution of Municipal Corporation is violative of
Constitution Part IXA? The High Court has held that keeping in view the object
and purpose of enacting Parts IX and IXA of the Constitution which intended to
achieve the Gandhian dream of local self-government it is necessary that before
the term of Municipal Council comes to an end the Municipal Corporation should
be available and in existence so as to take over the administration of the
urban area from the Municipal Council. There should be no interregnum or hiatus
between the dissolution of the Municipal Council and the date of Municipal
Corporation coming into existence; for such hiatus would necessarily involve a
government officer being appointed an administrator and that will be subversive
of the principles of democracy and local self-governance. The learned counsel
for the writ petitioner- respondents placed reliance on the provisions of
Article 243U (3)(a) which mandates that an election to constitute a
'municipality' shall be completed before the expiry of its duration specified
in clause (1) of Article 243U which is 5 years from the date appointed for its
first meeting and no longer.
A
municipality for the purpose of Part IXA is defined by clause (e) of Article
243P as meaning an institution of self-government constituted under Article
243Q. Article 243Q speaks of such three institutions, namely, Nagar Panchayat,
Municipal Council and Municipal Corporation. All the three are included within
the definition of 'municipality'. The learned counsel for the respondents
submitted that the steps for constitution of Municipal Corporation should be
planned and scheduled, well in advance of time of the date by which the term of
existing Municipal Council is coming to an end so as to see that successor
municipality, i.e. Municipal Corporation proposed to be constituted, is ready
to take over from the municipality, i.e. Municipal Council proposed to be
abolished without there being any hiatus in-between necessitating the
appointment of an administrator to take charge in the interregnum of the two
events. The learned counsel for the appellants submitted on the other hand that
the process of conversion of an area from Municipal Council to Municipal
Corporation would necessarily involve a hiatus which is an unavoidable
necessity. Both the learned counsel read out several provisions of Part IXA of
the Constitution and the two relevant statutes trying to cull out the
underlying scheme each in support of their respective submissions.
Having
heard the learned counsel for the parties at length on this aspect we are of
the opinion that the said hiatus is an unavoidable event which must take place
in the process of conversion of Municipal Council into a Municipal Corporation.
Reliance on Article 243U by the learned counsel for the respondents in this context
is misconceived. The use of expression 'a municipality' in sub-Article (3) of
Article 243U in the context and in the setting in which it is employed suggests
and means the duration of the same type of municipality coming to an end and
the same type of successor municipality taking over as a consequence of term of
the previous municipality coming to an end. Article 243U cannot be applied to a
case where the area of one description is converted into an area of another
description and one description of municipality is ceased by constituting
another municipality of a better description. Article 243U(3) cannot be pressed
into service to base a submission on that an election to constitute a municipal
corporation is required to be completed before the expiry of duration of a
municipal council.
The
constitution of Municipal Corporation would require notification of larger
urban area and a Municipal Corporation to govern it.
The
area shall have to be divided into wards with the number of corporators
specified and reservations made. The Corporation would need to nominate councillors.
The territorial limits may need to be altered. The State Election Commission
cannot conduct election without specifying numbers and boundaries of wards. New
rules, bye-laws etc. shall need to be framed and municipal tax structure may
need to be recast. The statutory provisions do not contemplate a situation
where the same area may be called a smaller and larger area simultaneously and
process of constitution of Municipal Corporation being commenced and completed
though the Municipal Council continues to exist. Such an action would result in
anomaly and confusion if not chaos. Care has been taken by the Legislature by
engrafting Section 452A into the body of BMPC Act by Bombay Provincial
Municipal Corporations (Amendment and Validation) Act, 1995 (at Maharashra Act
4 of 1995) which reads as under:- "452A. Power of State Government to
appoint Government officer or officers to exercise powers and perform functions
and duties of Corporation.
(1)
For every Municipal Corporation deemed to have been constituted or constituted
for a larger urban area under sub-section (1) or sub-section (2) as the case
may be, of section 3, the State Government may appoint a Government officer or
officers to exercise all the powers and to perform all the functions and duties
of a Corporation under this Act :
Provided
that an Administrator appointed by the State Government before the 31st May
1994 under the provisions of this Act, as it existed immediately before the
31st May 1994, for a Municipal Corporation deemed to have been constituted for
a larger urban area under sub-section (1) of section 3 who is in office on the
said date, shall be deemed to be the Government officer appointed under this
sub-section to exercise all the powers and perform all the functions and duties
of the said Corporation under this Act.
(2)
The officer or officers appointed under sub- section (1) shall hold office
until the first meeting of the Corporation or for a period of six months from
the date of specification of an area as a larger urban area, under sub- section
(2) of section 3, whichever is earlier :
Provided
that the Administrator deemed to have been appointed as the Government officer
under sub-section (1) shall hold office until the first meeting of the
Corporation.
(3) The
officer or officers appointed or deemed to have been appointed under
sub-section (1) shall receive from the Municipal Fund such pay and allowances
as may be determined, from time to time, by the State Government."
The abovesaid
provision was engrafted based on an experience learnt by the State Government
from the stalemate created in the city of Kalyan where the administrator had already continued to be in office for more
than the permissible period and the Municipal Corporation of the city of Kalyan was yet to be constituted. The
State Legislature also kept in view the provisions of Part IXA of the
Constitution and utilized the opportunity for drafting Section 452A in such
manner as would take care of the stalemate created in the city of Kalyan and
also of situation which was likely to creep in in any area sought to be
converted from Municipal Council into a Municipal Corporation. We are not
herein concerned with the city of Kalyan. The relevant part of Statement of Objects and Reasons is extracted and
reproduced hereunder:
"3.
The said Act, as amended by the Maharashtra Municipal Corporations and
Municipal Councils (Amendment) Act, 1994 (Mah. XVI of 1994), for giving effect
to the provisions of Part-IXA of the Constitution of India incorporated in the
Constitution, by the Constitution (Seventy-fourth Amendment) Act, 1992, -
(a) does
not provide for appointment or continuance of an Administrator after the expiry
of the normal term of office of Councillors; and
(b)
provides for constitution of duly elected corporation in consonance with the
said Constitutional provisions relating to composition, reservation, etc. and
further provides that the elections to the Municipal Corporations shall be
conducted in the prescribed manner by the State Election Commissioner appointed
under Article 243-K of the Constitution.
4. The
requisite reservation rules prescribing the number of seats to be reserved for
the Scheduled Castes, Scheduled Tribes, Other Backward Classes and Women and
the manner of rotation of such reserved seats for holding elections to the
Municipal Corporation were framed by the State Government in consonance with
the Constitutional provisions. However, pending holding of election for the
Corporations whose terms had already expired and where, the Administrator
appointed had been continued, it was necessary to take power to the State
Government to resolve the legal and the procedural stalemate. The Government of
Maharashtra therefore considered it expedient to suitably amend the Bombay
Provincial Municipal Corporations Act, 1949, providing for appointment of
Government officer or officers to exercise the powers and to perform all the
functions and duties of the Corporation until the first meeting of the duly
elected and constituted Corporation or for a period of six months from the 31st
May, 1994, whichever was earlier.
It was
also considered expedient to make a deeming provision providing for continuance
of an Administrator appointed for a Municipal Corporation who was in office on
the 31st May, 1994, as the officer appointed under this Act for managing the
affairs of the Corporation till the first meeting of such Corporation as well
as for validating the acts or things done by the Administrator who was
continued in the office to manage the affairs of the Municipal Corporation of
the City of Kalyan, during the period commencing from the date on which the
aggregate period of ten years of his appointment expired and ending on the 31st
May, 1994." (See Maharashtra Gazette dated March 30, 1995 Part V pages
11-13) Initially an Ordinance was promulgated on the 15th December, 1994 and replaced by the Amendment Act which was
published in the Maharashtra Gazette dated April 20, 1995 (Part IV, pp. 83-85).
We do not
see any merit in the submission that the Administrator once appointed shall
continue to stretch and unreasonably extend his term of office and may be
instrumental in obstructing the elections being held.
The
law does not permit holding of an office as an Administrator by any
officer/officers beyond the first meeting of the Corporation or a period of six
months from the date of specification of an area as a larger urban area.
Thus,
the maximum period for which an Administrator may be in office shall be six
months and within this much period the State Government and the State Election
Commission shall positively bring the Municipal Corporation in existence so as
to take over the administration from the Administrator.
Q.2 The
affect of census figures published being called 'provisional'? We see no merit
in the submission of the learned counsel for the writ petitioners-respondents
that the figures of census published on 13.8.2001 by the Director of Census
Operation, Maharashtra were only provisional and could not
have been acted upon unless the final population totals were published. A
decision of constituting a Municipal Corporation so as to replace a Municipal
Council is dependent on the figure of population of the urban area. Neither the
Constitution nor any other relevant provision of any statute prescribes or
defines the source or material wherefrom the State Government shall form an
opinion as to the population existing in any urban area. The only requirement
is of the population crossing the bench mark of three lakhs. The correctness of
the figure of population in Jalgaon urban area having reached the figure of 3,68,579
as on 13.8.2001 as published by the Director of Census Operation Maharashtra in
the document 'Provisional Population Totals' is not disputed by anyone. So long
as the correctness of the fact that the population had crossed the bench mark
of three lakhs __and thereby provided the requisite foundation for the State
Government to take a decision of constitution a Municipal Corporation by treating
Jalgaon as a larger urban area __ cannot be disputed much less doubted. So also
no act, rule or any instruction issued by the Government of India or any
competent authority has been brought to our notice which contemplates a 'Final
Population Total' being published after the publication of the so-called
provisional list. The submission that the State Government should have awaited
for the publication of a 'Final Population Totals' and should not have acted on
provisional totals is wholly devoid of any merit and the High Court should not
have upheld the submission to find fault with the decision of the State
Government.
Q.3.
Whether the population of Jalgaon was denied an effective opportunity of
raising objections and hence the principles of natural justice were violated?
In the opinion of the High Court, the notifications dated 16.10.2001 appointed
a period of 60 days for preferring objections against the proposed constitution
of Municipal Corporation in place of Municipal Council. This period of 60 days
would have expired on 15th
December, 2001.
However, in between, on 15.11.2001 when a period of only 30 days had expired,
an ordinance was promulgated whereby the period of 60 days appointed under
Section 6(1)(d) of the Act was reduced from 60 days to 30 days. The ordinance
was followed by two notifications amending the earlier notifications dated
16.10.2001 and limiting the period for preferring the objections upto
21.11.2001. The notification is required to be published not only in the
Official Gazette but also in the local newspaper. Though the notification was
published in the Official Gazette dated 15.11.2001, however, in the local
newspaper the publication took place on 19.11.2001 and the time for preferring
the objections expired on 21.11.2001. The High Court held that the opportunity
of hearing statutorily mandated to be afforded to the people of Jalgaon was
drastically curtailed, and in the light of the subsequent notification, for all
practical purposes the effective opportunity available was just two days, i.e.
commencing 19.11.2001 and expiring 21.11.2001 which cannot, in the facts and
circumstances of the cases, be said to be effective opportunity and, therefore,
the mandate spelled out by unamended sub-Section (3) of Section 3 of MRMC Act
was violated.
The
finding as to violation of principles of natural justice arrived at by the High
Court is founded on two bases:
(i) the
time of 60 days originally appointed for preferring the objections could not
have been curtailed;
(ii)
looking at the drastic consequences involved on the population of the urban
area, by converting the Municipal Council into a Municipal Corporation, the
effective opportunity for preferring objections having been made available only
for two days i.e. between 19th and 21st November, 2001 was in fact no
opportunity in the eye of law. The submission on which these findings are based
appears to be attractive but on a little probe and tested in the correct
perspective the fallacy in the submission is exposed.
The
requirement of inviting all persons who entertained any objection to the
proposal of a municipal area ceasing to be so and being classified as a larger
urban area to be administered by a Municipal Corporation as required by
sub-Section (3) of Section 3 read with Section 6 of the MRMC Act has to be
complied with for two reasons: firstly, it is recognition by statute of the
principles of natural justice and, secondly, it is mandatory procedural
requirement which must be satisfied as a pre- condition for the validity of subsequent
final decision on the principle that if the statute requires a particular thing
to be done in a particular manner then it shall be done either in that manner
or not at all.
It is
a fundamental principle of fair hearing incorporated in the doctrine of natural
justice and as a rule of universal obligation that all administrative acts or
decisions affecting rights of individuals must comply with the principles of
natural justice and the person or persons sought to be affected adversely must
be afforded not only an opportunity of hearing but a fair opportunity of
hearing. The State must act fairly just the same as anyone else legitimately
expected to do and where the State action fails to satisfy the test it is
liable to be struck down by the Courts in exercise of their judicial review
jurisdiction. However, warns Prof. H.W.R. Wade that the principle is flexible.
"The judges, anxious as always to preserve some freedom of manoeuvre, emphasise
that 'it is not possible to lay down rigid rules as to when the principles of
natural justice are to apply: nor as to their scope and extent. Everything
depends on the subject-matter'. Their application, resting as it does upon
statutory implication, must always be in conformity with the scheme of the Act
and with the subject-matter of the case. 'In the application of the concept of
fair play there must be real flexibility'. There must also have been some real
prejudice to the complainant: there is no such thing as a merely technical
infringement of natural justice." (Administrative Law, Wade & Forsyth,
Eighth Edition, 2000, pp.491-492).
The
learned authors quote from two authorities in support of 109, 118, Tucker LJ
opined, "the requirement of natural justice must depend on the
circumstances of the case, the nature of the inquiry, the rules under which the
tribunal is acting, the subject-matter to be dealt with, and in his speech,
"the so-called rules of natural justice are not engraved on tablets of
stone. To use the phrase which better expresses the underlying concept, what
the requirements of fairness demand when any body, domestic, administrative or
judicial, has to make a decision which will affect the rights of individuals
depends on the character of the decision- making body, the kind of decision it
has to make and statutory or other framework in which it operates. In
particular, it is well-established that when a statute has conferred on anybody
the power to make decisions affecting individuals, the courts will not only
require the procedure prescribed by the statute to be followed, but will
readily imply so much and no more to be introduced by way of additional
procedural safeguards as will ensure the attainment of fairness."
(Administrative Law, ibid, at p.493) The caution of associating rules of
natural justice with the flavour of flexibilities would not permit the Courts
applying different standards of procedural justice in different cases depending
on the whims or personal philosophy of the decision maker. The basic principles
remain the same; they are to be moulded in their application to suit the
peculiar situations of a given case, for the variety and complexity of
situations defies narration.
That
is flexibility. Some of the relevant factors which enter the judicial process
of thinking for determining the extent of moulding the nature and scope of fair
hearing and may reach to the extent of right to hearing being excluded are:
(i) the
nature of the subject-matter, and
(ii) exceptional
situations. Such exceptionality may be spelled out by
(i)
need to take urgent action for safeguarding public health or safety or public
interest,
(ii) the
absence of legitimate exceptions,
(iii) by
refusal of remedies in discretion,
(iv) doctrine
of pleasure such as the power to dismiss an employee at pleasure,
(v) express
legislation.
There
is also a situation which Prof. Wade & Forsyth terms as "dubious
doctrine" that right to a fair hearing may stand excluded where the Court
forms an opinion that a hearing would make no difference. Utter caution is
needed before bringing the last exception into play. (Administrative Law, ibid,
at pp.543-544) It is true that sub-Section (3) of Section 3 of MRMC Act
prescribes for inviting objections by affording two months' time and that was
done on 16.10.2001. However, the statutory provision was amended by Ordinance
and the period of 'two months' stood substituted by a period of 'not less than
30 days'. The statutory provision has to be read as amended. The petitions
filed before the High Court did not lay any challenge to the vires of the
ordinance either on the ground of un-reasonability or on the possible ground of
curtailing a vested right to prefer objections or on the ground of
un-reasonability. In the absence of any challenge having been laid, the
constitutional validity of the amendment cannot be gone into. The validity of
the action i.e. the notice inviting objections has to be tested in the light of
the statutory requirement that the period of notice statutorily prescribed is
of a duration of 'not less than 30 days' which in the case at hand it is. Thus
the notification dated 16.10.2001, as amended by the subsequent notification
dated 15.11.2001, satisfies the requirement of the principles of natural
justice as also of the procedure statutorily prescribed.
The
date on which the subsequent notification dated 15.11.2001 was published in the
government gazette and on 19.11.2001 when the same was published in local
newspaper, a period of 30 days or more than 30 days had already elapsed and
still some time i.e. a period of 6 days by reference to gazette publication
dated 15.11.2001 and 2 days by reference to newspaper publication dated
21.11.2001 was still available for preferring objections.
Let a
totality of the situation be assessed in the backdrop of the facts and
circumstances of the case. The Municipal Council, representative of the entire
population of Jalgaon municipal area had collected and consciously discussed
the likely objections against the proposal and forwarded the same for the
consideration of the State Government. In addition, 239 objections had already
been preferred and reached the State Government. There is no grievance raised
before the High Court by anyone that there is yet another objection to the
proposal which could have been raised but could not be raised on account of
curtailment in the period inviting objections. Not one person has come forward
to say that he proposed to prefer an objection but was denied the opportunity
of preferring objection on account of the period having been abruptly
curtailed. There is not one objection which may not have received consideration
at the hands of the State Government solely because it was preferred within 60
days calculated from 15.11.2001 but beyond 21.11.2001.
So far
as the objections preferred by the Municipal Council collectively and the
individual 239 objectors are concerned, no one has alleged that anyone of the
factors contemplated as relevant by Article 243- Q proviso of the Constitution
was absent or non-existent. None has disputed the correctness of the population
figure as totalled by the census.
The
contentions raised are that the development works initiated by the Municipal
Council may be adversely affected or that the taxes would increase while the
quantum of State's financial aid or grant may be reduced.
Though
it is for the State Government to apply its mind to the relevance and weight of
the objections preferred still we may note the submissions made by the learned
counsel for the appellant-State Government that a mere change in the
constitution of the local self-government does not necessarily entail
discontinuance of development projects and there is no reason to apprehend,
that they would not be continued. A change in governance is involved at every
election though the administration continues with Municipal Council. At the
time of an election certain development works would be pending in progress
which would naturally be taken over by the successor Municipal Council. Just as
any new Municipal Council would take over the on-going projects initiated by the
predecessor Municipal Council so also a Municipal Corporation newly brought
into being shall take over the continuing projects of previous Municipal
Council. Every change in mode of governance needs some readjustments. Need for
switching over from Municipal Council to Municipal Corporation mode of
administration is occasioned by growth of population and prosperity in any
particular urban area. People share the prosperity and so must be prepared to
pay the additional price by way of additional taxes, submitted the learned
counsel for the State Government and we found substance therein.
Whosoever
wished to prefer the objections would not necessarily wait for the last day
though he has a right to do so. The amendment ordinance and the notifications
dated 15.11.2001 issued thereunder did not abruptly close the invitation to
objections, only the period was shortened.
Those,
over and above the 239 who had already preferred objections, could still have
preferred the objections if they intended to do so. On the totality of the
facts and circumstances of the case, we are of the opinion that neither the
principles of natural justice have been violated nor is there any breach
committed of the procedural requirements prescribed by Section 3(3) read with
Section 6 of the MRMC Act as amended by the ordinance.
The
statement accompanying the Ordinance spells out the need for its promulgation.
General elections to four (including Jalgaon) out of the seven Municipal
Councils were scheduled to be held in the first week of December, 2001. The
term of those Municipal Councils was coming to an end in the month of December
2001 itself. The new Municipal Councils were mandatorily required to be
constituted before the expiry of the term of the existing Councils. If the
proposal of the Government to establish Municipal Corporations in those four
areas was not finalized before the expiry of the said term of the existing
Councils the State Government would have been required to undertake the
elections which would have been involved substantial expenditure of public
money and wastage of time and energy of government machinery all avoidable. It
was this consideration of public interest which persuaded the State Government
to curtail the period of two months to such period not being less than 30 days
so that decision on constitution of Municipal Corporation, either way but
finally could be taken earlier and at an appropriate time and to proceed
thereafter either with Municipal Council elections or the process of
constituting Municipal Corporation consistently with the decision taken.
One of
the principles of good governance in a democratic society is that smaller
interest must always give way to larger pubic interest in case of conflict. The
amendment resulting into curtailing of the period appointed for inviting
objections though restricted the period, by shortening it to the extent
necessary in the then circumstances, it was done only for achieving larger
public interest. No fault can be found therewith. The period allowed for
inviting objections conforms to the statutory provision and is not shown to
have caused any prejudice to any one.
Q.4.
Want of consultation with Municipal Council __ effect? The learned counsel for
the appellants submitted that steps for constitution of Municipal Corporation
fell within the purview of Section 3 of BPMC Act which requires the
specification of larger urban area, and constitution of Municipal Corporation
therein, to be preceded by a notification subject to the condition of previous
publication. Consultation is not one of the requirements of Section 3 and
therefore the High Court went wrong in holding that for want of consultation,
the process of constitution of Municipal Corporation of the city of Jalgaon was vitiated.
With
this submission we do not agree. The Jalgaon Municipal Council was already in
existence, Jalgaon being smaller urban area. It was proposed to be converted
into a larger urban area. This process would involve abolition of 'municipal
area' as defined in within the clause (24) of Section 2 of M.R.
Municipal
Council Act. Any of the events provided by clauses (a) ,(b), (c) and (d) of
sub-Section (1) of Section 6 must satisfy the requirement of consulting the
Municipal Council provided for by provisio to sub-Section (1) before issuing
the notification and before that, notification should also follow the procedure
prescribed by Section 3 mutatis mutandis. Section 6(1)(d) covers within its
scope any event, the declaration whereof has the effect of the whole of any
area comprising a municipal area ceasing to be a municipal area. Thus
conversion of Jalgaon Municipal Council to Municipal Corporation involves not
only specification of large urban area and constitution of Municipal
Corporation of the city of Jalgaon, it also involves the whole of the local
area comprising the municipal area of Jalgaon ceasing to be a municipal area
with effect from the date of change.
Therefore
consulting the Municipal Council is mandatory.
However,
no provision of law has been brought to our notice which requires even a
proposal for constitution of Municipal Corporation cannot be published without
consultation. Consultation must take place at any one stage before the finalisation
of the proposal. By the time the writ petitions came to be filed before the
High Court all that had taken place was the publication of notification
proposing to constitute Municipal Corporation of the city of Jalgaon. Objections were invited. The final
decision was yet to be taken which was stayed by the High Court. The
requirement of consultation could have been satisfied at any time before
publishing the final notification. The High Court was not right in finding
fault with the process of constitution of the Municipal Corporation of the city
of Jalgaon for want of consultation at the
stage to which it had reached when the writ petitions came to be filed in High
Court.
For
the foregoing reasons we are of the opinion that the judgment of the High Court
cannot be sustained on any of the grounds upheld by it.
It is
unfortunate that the litigation stalled the process of Municipal Corporation of
the city of Jalgaon being constituted. The expenditure,
the time and the energy of State machinery which was intended to be avoided by
the State Government came to be wasted and the elections had to be held for
constituting the successor Municipal Council. As on the day the Municipal
Council is in place. Inasmuch as it has been held that the process for
constituting the Municipal Corporation of the city of Jalgaon in place of Municipal Council does
not suffer from any infirmity upto the stage to which it has proceeded, the
State Government may now take a final decision and issue final notification
depending on the formation of its opinion. The process of consultation within
the meaning of proviso to Section 6(1) of M.R. Municipal Council Act shall now
be completed if not already done. Needless to say the objections preferred by
the Municipal Council of Jalgaon and 239 other objections shall be considered
and disposed of in accordance with law if not already done.
The
appeals are allowed. The impugned judgment of the High Court is set aside. The
writ petitions filed before the High Court are directed to be dismissed.
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