TMI Blog2003 (2) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 ), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinance 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 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 secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod 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, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Munic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 depen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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