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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 5900 OF 2017.
1. Tirth Jugal Yetre,
Aged 333 years, Occ - Business,
resident of Risama, Post Amgaon,
Tq. Amgaon, District Gondia.
2. Nikesh Surendra Mishra,
Aged 44 years, Occ - Business,
resident Risama, Post Amgaon,
Tq. Amgaon, District Gondia. ....PETITIONERS
VERSUS
1. State of Maharashtra,
through its Secretary,
Department of Urban Development
Mantralaya, Mumbai.
2. The Collector,
Gondia.
3. Sub Divisional Officer, Deori,
District Gondia.
4. Tahsildar Amgaon,
Taluka Amgaon, District Gondia.
5. Assistant Director,
Town Planning, Gondia,
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District Gondia.
6. Amgaon Gram Panchayat,
through its Secretary,
Amgaon, Tq. Amgaon,
District Gondia.
7. Bangaon Gram Panchayat,
through its Secretary,
Bangaon, Tq. Amgaon,
District Gondia.
8. Risama Gram Panchayat,
through its Secretary,
Risama, Tq. Amgaon,
District Gondia.
9. Kumbhartoli Gram Panchayat,
through its Secretary,
Kumbhartoli, Tq. Amgaon,
District Gondia.
10. Padampur Gram Panchayat,
through its Secretary,
Padampur, Tq. Amgaon,
District Gondia.
11. Kindgipar Gram Panchayat,
through its Secretary,
Kindipar, Tq. Amgaon,
District Gondia.
12. Birsi Gram Panchayat,
through its Secretary,
Birsi, Tq. Amgaon,
District Gondia.
13. Mali Gram Panchayat,
through its Secretary,
Mali, Tq. Amgaon,
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District Gondia.
(Respondent nos. 6 to 13
deleted vide order dated
06.10.2017) ....RESPONDENTS
.
.............
1. Uttam s/o Bhauda Nandeshwar,
aged about 42 years, Occ - Agriculturist,
resident of Near Power House,
Salekasa Road, Amgaon,
District Gondia.
2. Rakesh s/o Ramchandra Shende,
aged about 42 years, Occ - Business,
resident of Shende Market, Amgaon,
District Gondia.
3. Yashwant s/o Sukhram Mankar,
aged about 40 years, Occ - Business,
resident of Near Police Station, Amgaon,
District Gondia. ....INTERVENORS
-----------------------------------
Mr. A.S. Kilor, Advocate for Petitioners.
Mr. H.R. Dhumale, Asstt. Govt. Pleader for Respondent Nos.1 to 5
Mr. A.M. Ghare, Advocate for Intervenors.
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CORAM : B. P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED : NOVEMBER 28, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J) ::: Uploaded on - 02/12/2017 ::: Downloaded on - 03/12/2017 01:07:29 ::: Judgment wp5900.17 4 Heard Shri A.S. Kilor, learned Counsel for Petitioners, Shri H.R. Dhumale, learned Asstt. Govt. Pleader for Respondent Nos.1 to 5 and Shri A.M. Ghare, learned Counsel for Intervenors.
2. Shri Kilor, learned counsel for petitioners has advanced arguments in the light of earlier judgment of this Court dated 10.02.2016 in Public Interest Litigation No. 20/2015.
3. The matter was heard at some length on 13.11.2017 and then to avoid any technical objections, parties were put to notice that it may be finally decided on next date. On 13.11.2017, we have passed the following order.
" Heard Shri A.S. Kilor, learned Counsel for petitioners and Ms. Mehta, learned A.G.P. for respondents. Shri A.M. Ghare, learned Counsel for intervenors.
2. Learned counsel for petitioners fairly gives no objection for allowing Civil Application No. 2297/2017 filed by Shri Ghare, learned Counsel on behalf of three applicants for intervention. Accordingly, applicants are permitted to intervene in the matter. Necessary amendment be carried out within a period of one week. Civil Application is ::: Uploaded on - 02/12/2017 ::: Downloaded on - 03/12/2017 01:07:29 ::: Judgment wp5900.17 5 disposed of accordingly. No costs.
3. In view of additional affidavit filed on 10.11.2017, and directions issued by the State Election Commission on 07.11.2017, learned counsel for petitioners seeks interim relief in terms of prayer clause (2). He also seeks oral leave to join State Election Commission as party respondent no.6.
4. Learned A.G.P. as also Shri Ghare, learned counsel are opposing any intervention by this Court. Learned counsel for intervenors submits that exercise of formation of wards and their steps towards election was taken long back.
5. We find that petition has been filed on 06.09.2017 questioning notification dated 02.08.2017. This Court has issued notice in the matter on 11.09.2017 and made it returnable on 06.10.2017. On 06.10.2017, matter came to be adjourned beyond vacation.
6. In this situation we direct that further steps in the matter by respondents shall be subject to further orders of this Court.
7. List the matter for further consideration on 17.11.2017. Time to carry out deletion is extended till 17.11.2017."
4. Accordingly we have heard the learned counsel for the parties finally. Rule is made returnable forthwith.
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5. Short submission of learned counsel for petitioners is, instead of continuing further with the process, which resulted in notification dated 12.02.2015, after judgment dated 10.02.2016, the respondents re-started the process by issuing fresh advertisement, inviting objections on 12.01.2017. Accordingly various Village Panchayats and their residents filed large number of objections totaling to 3799. Those objections needed fresh evaluation, but, that has been overlooked and in the light of evaluation of objections received earlier in response to earlier process, the objections have been disposed of. He therefore, contends that this is a clear case of non-application of mind and refusal or omission to exercise jurisdiction.
6. He also points out that this court has granted limited interim relief, and hence, elections of newly constituted Municipal Council are now scheduled on 10.12.2017.
7. Shri Ghare, learned counsel appearing for intervenors submits that court may consider the controversy as presented by the parties, as per law.
8. Learned A.G.P. submits that in Public Interest Litigation No.20/2015, notification dated 12.02.2015, constituting Nagar Panchayat, ::: Uploaded on - 02/12/2017 ::: Downloaded on - 03/12/2017 01:07:29 ::: Judgment wp5900.17 7 was set aside. At that juncture argument was that when process undertaken for formation of Municipal Council, Nagar Panchayat could not have been constituted. That contention has been accepted by the Court. However, all other aspects then looked into are upheld and hence, it was not necessary for the State Government to apply mind afresh. He has taken us through the relevant observations of the Division Bench in judgment dated 10.02.2016. He also points out that present petitioners were party intervenors in said Public Interest Litigation.
9. Relying upon reply-affidavit, he submits that on 05.04.2016, the Town Planning Officer at Gondia has pointed out proportion of involvement in non-agricultural activities at about 35% and this has been also clarified by respondent no.2 Collector in his reply affidavit before this Court. According to him, therefore, there is sufficient compliance with the legal provisions in the matter.
10. Shri Kilor, learned counsel for petitioners submits that petitioners intervened in Public Interest Litigation No.20/2015 to oppose formation not only of Nagar Panchayat, but, also of Municipal Council. He submits that the documents of various gram panchayats placed on record show that ::: Uploaded on - 02/12/2017 ::: Downloaded on - 03/12/2017 01:07:29 ::: Judgment wp5900.17 8 involvement or engagement in N.A. any activity is much below the statutorily mandated percentage of 35%. He has also taken us through consideration of objection by the State Government, drawing our attention to page no.138 of the record.
11. Perusal of judgment dated 10.02.2016, delivered in Public Interest Litigation No.20./2015, reveals that there challenge was to a notification dated 12.02.2015 issued by respondent no.1 constituting an area of Amgaon Gram Panchayat to be a Nagar Panchayat, as provided under Section 341-A of the Maharashtra Municipal Council, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as "the 1965 Act" for short). We need not go into the earlier notifications published by the State Government while completing this process. Judgment dated 10.02.2016 has attained finality. Said judgment in paragraph no.24 observes as under :
"24. We find that the only factors that could have been taken into consideration by the State Government are those which can be found in Article 243Q and Subsection 2 of Section 3 of the said Act. However, perusal of the material which is placed on record, so also the ::: Uploaded on - 02/12/2017 ::: Downloaded on - 03/12/2017 01:07:29 ::: Judgment wp5900.17 9 affidavit filed by the State Government would reveal that though the entire material was available with the State Government, so as to consider as to whether the factors as specified in Subsection 2 of Section 3 of the said Act and Article 243Q of the Constitution of India are satisfied or not, the same are not taken into consideration. The perusal of the file would reveal that though the department has proposed constitution of Nagar Parishad by inclusion of certain villages which were willing, the Hon'ble Minister has ordered of constituting Nagar Panchayat only for the area comprising of Amgaon Village Panchayat. We, therefore, find that the decision making process of the State Government is vitiated by not taking into consideration the relevant factors and taking into consideration the irrelevant factors. If the decision is taken by not taking into consideration the factors which are required to be taken into consideration and is taken by taking into consideration the factors which are not relevant, such an exercise of power would not be sustainable in law. In that view of the matter, we find that the petition deserves to be allowed."
12. Thus, after this judgment it was open to the State Government to ::: Uploaded on - 02/12/2017 ::: Downloaded on - 03/12/2017 01:07:29 ::: Judgment wp5900.17 10 proceed further with the earlier procedure, and to remove the lacunae at the stage at which it was noticed. Thus, by making amends at that stage, corrective steps could have been taken and appropriate decision would have been reached. However, that has not been done. On 12.01.2017, a fresh notice/notification under Section 341 [1] for Constitution of Area as transitional area came to be published, and objections were invited. The notification shows a desire to specify local area of Amgaon, Bangaon, Rtisma, Kumbhatroli, Padampur, Kindgipar, Birsi and Malhi in Gondia District being smaller urban area and to constitute a Municipal Council by name 'Amgaon Municipal Council' for said smaller area.
13. It is not in dispute that several objections were received by the office of the Collector within the stipulated time. The petitioners have pointed out consideration of those objections by government in a chart which starts at page no.138. Said chart refers to objection received from 10 Gram Panchayats with their date and briefly mentions details of objections. It is also not in dispute that on these objections only, finding has been recorded as "opinion". The said opinion relies upon judgment dated 10.02.2016 in Public Interest Litigation No.20/2015. Findings maintained in that Public Interest Litigation are therefore, held conclusive and sufficient ::: Uploaded on - 02/12/2017 ::: Downloaded on - 03/12/2017 01:07:29 ::: Judgment wp5900.17 11 even to overrule the objections raised by the Gram Panchayats after the notification dated 12.01.2017.
14. When there was fresh advertisement and objections were invited again, it is obvious that objections needed fresh evaluation. Merely because some objections were overruled earlier it cannot be a reason to overrule the new objections again. Moreover, on this occasion, the gram panchayats claim that they have certified the eligibility of unemployment which is much below 35%.
15. By way of illustration against name of Amgaon Gram Panchayat at Sr.No.10, there is mention of availability of limited land with NA potential. At Sr.No.6 it has been pointed out that there is no 35% NA employment and Amgaon is rural area and not an industrial township without N.A. potential. The "opinion" on these objections mentions only High Court order dated 10.02.2016 as a reason to reject it. All objections raised by all gram panchayats are rejected only due to this reason.
16. The certificates issued by the gram panchayats show establishments in which employment is available and also mentions number ::: Uploaded on - 02/12/2017 ::: Downloaded on - 03/12/2017 01:07:29 ::: Judgment wp5900.17 12 of labour who can be accommodated in such establishments. State no where states that the objections are reproduction of old objection only, or are not supported by new material. Thus, consideration of new objections appear to be arbitrary and mechanical one.
17. We therefore find that after fresh invitation of objections and receipt thereof, the exercise of consideration of objections should have been undertaken a fresh. Mere reliance upon earlier consideration cannot be a substitute to it. We therefore, find substance in the contentions that the notification dated 02.08.2017 constituting Municipal Council, Amgaon and dissolving respective gram panchayats is unsustainable. It is accordingly quashed and set aside.
18. Writ Petition is allowed. Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE JUDGE
Rgd.
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