TMI Blog1989 (7) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... unicipal bodies and also some of the residents therein submitted their representations. They objected to the merger of their municipal areas into the Corporation. It is said that in Ulhasnagar Municipal area, Sindhies are predominant . In 1947, they were the victims of partition of the country. Being uprooted from their home land, they have since settled down at Ulhasnagar. They have formed union or federation called the All India Sindhi Panchayat Federation. It is interested in having a separate identity for Ulhasnagar. The Federation challenged the said draft notification by a writ petition before the Bombay High Court. The writ petition was not disposed of on merits. It was permitted to be withdrawn on an assurance given by the Government. The Government gave the assurance that the representatives of the Federation would be given an opportunity of being heard before taking a final decision. As per the assurance, they were given personal hearing on their representations. The others who have filed similar representations were not heard. But their objections or representations were duly considered. Thereupon, the Government decided to exclude Ulhasnagar from the proposed Corporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d validity has been upheld by a Division Bench of this Court (Shah and Deshpande, JJ) in writ petition No. 706-A of 1982 (The Village Panchayat Chikalthane and Anr. v. the State of Maharashtra and Anr.) decided on 23/24 December, 1982. Therefore, it cannot be said that the notification issued in exercise of the said legislative power is vitiated by noncompliance with the principles of natural justice. The conditions laid down by Section 3 are fully complied with; a preliminary notification was issued as contemplated by Sub-section (4) Section 3 of the Act; the objections and suggestions made by the various citizens and persons were duly considered by the State Government and thereafter the final notification was issued. In the very nature of things there is bound to be difference and variance between the preliminary notification and the final notification. Only because the Ulhasnagar Municipal Council is excluded from the final notification, it cannot be said that there was any major departure from the preliminary notification or it was necessary to issue a preliminary notification over again before the final notification was issued in that behalf. The second factual to be noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its separate identity and the socio economic map of the village or city will never change It cannot be forgotten that we are heading towards a global village. By saying this, we do not want to be little the achievements of sacrifice of the Sindhi Community. However, that is not very relevant for deciding the question of the establishment of a Municipal Corporation Its main object is to ensure better municipal government of the city. It appears that Government was also aware of this and this seems to be the reason why the decision for the time being is pertinent and clearly indicates that the Government wanted to reconsider the issue at a later stage. However, unfortunately till today Government has not taken any decision in that behalf. 10. The High Court, however, felt that it was not necessary to quash the notification establishing the Corporation. This is how the conclusion was reached : It will not be fair to quash the notification as a whole and unsettle the Municipal Administration. In our view, that is also not necessary since from the affidavit of the Government, it is clear that the decision taken in that behalf was tentative, i.e. for the time being and it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiterated the stand taken by the Government before the High Court. He urged that the State has a wide discretion in the selection of areas for constituting the Corporation and the Court cannot interfere with such discretion. The Court has no jurisdiction to examine the validity of the reason that goes into the decision of the Government. The power to constitute Municipal Corporations under Section 3 of the Act is legislative in character. It is an extension of legislative process for which rules of natural justice have no application. He said that the Government in the instant case has complied with the statutory requirements and it was not expected to do anything more in the premises. And, at any rate, it is wholly unnecessary according to the counsel to go through that exercise again as the High Court has suggested. 14. The other limb of the argument of counsel for the appellants relates to the manner in which the High Court disposed of the matter. It was said that a decision of this Court has been disregarded and a binding decision of a co-ordinate Bench of the same Court has been ignored. 15. The grievance of the appellants' counsel, in our opinion, is not wholly unju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judges, (Dharrnadhikari and Kantharia, JJ.) did not heed to that submission. They neither referred the case to a larger Bench nor followed the view taken in the Chikalthane case. It was not as if they did not comprehend the issue to be determined and the principle to be applied. They were very much aware of it when they remarked : In our opinion, once it is accepted that this is a piece of conditional legislation, then it will have to be held that the principle of natural justice would not apply to such a case as held by the Division Bench of this Court in Village Panchayat Chikalthane's case nor it could be said that because under a mistaken notice the Federation was heard, the denial of such a right to the petitioners will amount to hostile discrimination within the contemplation of Article 14 of the Constitution of India. 17. After referring to these simple legal principles, it was unfortunate that the issue at stake was little explored. The key question raised in the case was side-tracked and a new strategy to interfere with the decision of the Government was devised. The learned Judges directed the Government to publish again a draft notification for reconsideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uire that if a learned single judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single, Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is found on healthy principle of judicial decorum and propriety. It is to be regretted that the learned Judges departed from this traditional way in the present case and choose to examine the question himself. 21. The Chief Justice Pathak, in a recent decision stressed the need for a clear and consistent enunciation of legal principle in the decision of a Court. Speaking for the Constitution Bench (Union of India v. Raghubir Singh [1989] 178 ITR 548 (SC) learned Chief Justice said (at 766) : The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, beside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opment of law particularly, is inevitable in our developing country. In Raghubir Singh case, learned Chief Justice Pathak had this to say [1989] 178 ITR 548 (SC) : Legal compulsions cannot be limited by existing legal propositions, because, there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which could well affect the validity of existing legal dogma. The search for solutions responsive to a changed social era involves a search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminacy such as fairness or reasonableness , but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing of justice within the new parameters. And he continued : The universe of problems presented for judicial choice-making at the growing points of the law is an expanding universe. The areas brought under control by the accumulation of past judicial choice may be large. Yet the areas newly presented for still further choice, because of chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties is untenable. The Government in the exercise of its powers under Section 3 is not subject to the rules of natural justice any more than is legislature itself. The rules of natural justice are not applicable to legislative action plenary or subordinate. The procedural requirement of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed. The High Court, therefore, was in error in directing the Government to hear the parties who are not entitled to be heard under law. 26. Megarry, J., in Bates v. Lord Hailsham of St. Marylebone and Ors. (1972) 1 WLR 1373 while dealing with the legislative process under Section 56 of the Solicitors Act, 1957 said (at 1378) : In the present case, the committee in question has an entirely different function : it is legislative rather that administrative or executive. The function of the committee is to make or refuse to make a legislative instrument under delegated powers. The order, when made, will lay down the remuneration for solicitors generally and the terms of the order will have to be considered and construed and applied in numberless cases in the future. Let me accept that in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditional legislation. Dealing with the nature of functions of a non-judicial authority, Prof. S.A. De Smith in Judicial Review of Administrative Action (third edition) observes at page 163 : However, the analytical classification of a function may be a conclusive factor in excluding the operation of the audi alteram partem rule. It is generally assumed that in English law the making of a subordinate legislative instrument need not be preceded by notice or hearing unless the parent Act so provides. 28. In Baldev Singh v. State of Himachal Pradesh AIR 1987 SC 1239 a similar question arose for consideration. An attempt was made to constitute a notified area as provided under Section 256 of the Himachal Pradesh Municipal Act, 1968, by including portions of the four villages for such purposes. The residents of the villages who were mostly agriculturists challenged the validity of the notification before the High Court on the ground that they had no opportunity to have their say against that notification. The High Court summarily dismissed the writ petition. In the appeal before this Court, it was argued that the extension of notified area over the Gram Panchayat limits would in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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