Dr. Avinash Ramkrishna Kashiwar, ... vs The State Of Maharashtra, Through ...
2014 Latest Caselaw 70 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                      
                        NAGPUR BENCH : NAGPUR
                 Public Interest Litigation No. 72/2013




                                              
    1. Dr. Avinash Ramkrishna Kashiwar,
       Aged about 53 years,
       Taluka President, Sadak Arjuni,




                                             
       Nationalist Congress Party,
       Resident of Kosamtondi,
       Tahsil Sadak -Arjuni, Dist. Gondia.




                                     
    2. Mitaram Bapu Deshmukh,
       Aged about 69 years,
       At & Post Sadak Dongargaon,
                      
       Tahsil Sadak Arjuni, Dist. Gondia.

    3. Shamrao Shionkar,
                     
       President, Bhartiya Janata Party,
       At & Post Samdad,
       Tahsil Sadak-Arjuni, Dist. Gondia.

    4. Rajkumar N. Headaoo,
      


       Principal, G.S. Junior College,
       Sadak Arjuni, Tahsil Sadak Arjuni,
   



       District Gondia.                      ..             PETITIONERS


                         .. Versus ..





    01. The State of Maharashtra,
        through the Principal Secretary,
        Revenue & Forests Department,
        Mantralaya, Mumbai - 400 032.





    02. Hon'ble Shri Balasaheb Thorat,
        Revenue Minister,
        Mantralaya, Mumbai 400 032.

    03. The Commissioner,
         Nagpur Division,
         Civil Lines, Nagpur.

    04. The Collector,
        Gondia, Tahsil and District
        Gondia.                              ..            RESPONDENTS



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    01. Kewalram Natthuji Pustode,
        Aged 61 years,




                                                                      
        Occ: Agriculturist,
        Vice President, Taluka
        Kharedi Vikri Sangh, Arjuni




                                              
        Morgaon, At Deolgaon,
        Tah. Arjuni Morgaon,
        Dist. Gondia.

    02. Pramod Kawduji Lanjewar,




                                             
        Aged 50 years,
        Occ: Agriculturist,
        Vice President, Krishi Utpnna
        Bazar Samii, Arjuni Morgaon,
        At Bhikokhidki, Tah. Arjuni




                                     
        Morgaon, Dist. Gondia.
                     
    03. Bhagwat Mahadeoji Nakade,
        Aged 62 years,
        Occ: Agriculturist,
                    
        President, Congress Committee,
        Arjuni Morgaon, At Mahur Kuda,
        Tah. Arjuni Morgaon, Dist.
        Gondia.
      

    04. Narayan Laxmansao Ghatbandhe,
        Aged 58 years, Occ: Agriculturist,
   



        Vice President, Taluka Congress
        Committee, Arjuni Morgaon,
        At Deolgaon, Tah. Arjuni
        Morgaon, Dist. Gondia.               ..             INTERVENERS





                                     ...

    Mr. M.V. Samarth, Advocate for Petitioners.
    Mr. S.M. Ukey, Additional Government Pleader for Respondents.
    Mr. H. D. Dangre, Advocate for Interveners.





                         ...

    CORAM : B.R. GAVAI & V.M. DESHPANDE, JJ.
    DATE OF RESERVING THE JUDGMENT: 05.12.2014
    DATE OF PRONOUNCING THE JUDGMENT: 10.12.2014.



    JUDGMENT (per B.R. Gavai, J. )

1. Rule. Rule made returnable forthwith. Heard by consent

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of the learned counsel appearing for the parties.

2. The present public interest litigation has been filed by the

residents of Sadak-Arjuni, praying for quashing and setting the

Notification dated 26.07.2013 issued by respondent no.1 in respect

of location of Sub Division at Morgaon-Arjuni.

3. The petitioners are the residents of Sadak-Arjuni in

Gondia district. In the year 2000, Gondia district was carved out

from the erstwhile Bhandara district, After carving out Gondia

district from Bhandara, it has 8 talukas. It had only two Sub-

Divisions viz. Gondia and Deori. Gondia Sub-Division was

consisting of four Talukas i.e. Tiroda, Morgaon-Arjuni, Goregaon and

Gondia, whereas Deori Sub Division was consisting of Deori, Sadak-

Arjuni, Amgaon and Sakekasa talukas. There was demand from

various quarters for having more Sub-Divisions. In response to the

said demand, the State Government published a Notification on

26/28th June, 2012 in exercise of powers under Section 4 of the

Maharashtra Land Revenue Code, 1966 (hereinafter referred to as

"the Code" for short) thereby proposing to constitute a separate

Sub-Division for the talukas of Sadak-Arjuni and Morgaon-Arjuni and

notifying the location of the said Sub-Division to be at Sadak-Arjuni.

However, by the final Notification dated 26.07.2013 though the

separate Sub-Division has been constituted for the Talukas of

Sadak-Arjuni and Morgaon-Arjuni, the location of the headquarter is

4 PIL72-13.odt

notified at Morgaon Arjuni and not at Sadak-Arjuni. Being aggrieved

thereby, the present public interest litigation is filed.

4. Heard Mr. Samarth, learned counsel for the petitioners,

Mr. S.M. Ukey, learned Additional Government Pleader for the

respondents/State and Mr. H.D. Dangre, learned counsel for the

intervenors who are the residents of Arjuni-Morgaon Taluka and are

supporting the location of the headquarter of the Sub-Division at

Morgaon-Arjuni.

5. Mr. Samarth, learned counsel appearing on behalf of the

petitioners submits that once a draft notification provided that the

headquarter of the Sub-Division would be at Sadak-Arjuni, it was not

permissible for the State Government to change the same and

notify the headquarter at Morgaon-Arjuni. The learned counsel

submits that this would be in violation of the principles of natural

justice. The learned counsel further submits that as a matter of fact

the Collector, Gondia had recommended the establishment of the

headquarter of the Sub-Division at Sadak-Arjuni. However, the

State Government by ignoring the same, has established the

headquarter at Morgaon-Arjuni. The learned counsel submits that

this has been done in a mala fide manner under the influence of

politicians from the Morgaon-Arjuni area. The learned counsel on

merits submits that taking into consideration the geographical

situation of Sadak-Arjuni, Sadak-Arjuni is the most convenient place

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for establishment of the headquarter. The learned counsel relies on

the judgments of the Apex Court in the case of Bhikubhai

Vithlabhai Patel and ors .vs. State of Gujarat and another

reported in (2008) 4 Supreme Court Cases 144 and in the case

of Baldev Singh and others .vs. State of H.P. And others

reported in AIR 1987 Supreme Court 1239 and on the

judgments of the Division Bench of this Court in the case of

Prashant Babusaheb Ghiramkar .vs. State of Maharashtra

and others reported in 2013(6) Mh.L.J. 703,in the case of Ashok

Ganapat Jadhav and another .vs. State Election Commission,

Mumbai reported in 2000(4) Mh.L.J.150, in the case of Maidain

Bacchav Samiti and ors. .vs. Ramchandra Padmakar Vaidya

Hall Trust and ors. reported in 2011 Vol. 113(2) Bom. L.R.

1280.

6. As against this, the learned Additional Government

Pleader Mr. Ukey and Mr. Dangre, the learned counsel appearing on

behalf of the intervenors submit that the powers exercised by the

State Government are legislative in nature. It is, therefore,

submitted that the principles of natural justice would not be

applicable to the facts of the present case. It is further submitted

that as a matter of fact the Collector had himself recommended the

headquarter to be situated at Morgaon-Arjuni and not at Sadak-

Arjuni. It is further submitted that the entire procedure prescribed

under the Statute was followed by the State Government and as

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such no interference is warranted. The learned counsel interpreting

the provision of the Code submits that the opinion of the Collector

or the other authorities would not be relevant and it is only the

opinion of the State Government which should be relevant for

determination of the issue as to which place is the suitable place for

establishment of the headquarter of the Sub-Division. The learned

counsel, therefore, submits that the petition deserves to be

dismissed.

7.

For appreciating the rival submissions, it would be

necessary to refer to Section 4 of the Code.

"4. Constitution of Revenue areas:

1. The State Government may, by notification in

the Official Gazette specify -

i) the districts [(including the City of

Bombay)] which constitute a division;

ii) the sub-divisions which constitute a district;

iii) the talukas which constitute a sub-

division;

iv) the village which constitute a taluka;

v) the local area which constitute a village; and

vi) alter the limits of any such revenue area so constituted by amalgamation, division or in any manner whatsoever, or abolish any such revenue area and may name and after the name of any such revenue area; and in any case

7 PIL72-13.odt

where any area is renamed, then all references in any law or instrument or

other documents to the area under its original name shall be deemed to be

references to the area as renamed, unless expressly otherwise provided:

Provided that, the State Government

shall, as soon as possible after the commencement of this Code, constitute by like notification every wadi, and any area outside the limits of the

gaothan of a village having a separate habitation

(such wadi or area having a population of not less than [three hundred, as ascertained by a Revenue Officer not below the rank of a Tahsildar)] to be a

village; and specify therein limits of the village so constituted.

2. The collector may by an order publish in the

prescribed manner arrange the villages in a

taluka which shall constitute a saza; and the sazas in a taluka which shall constitute a circle, and may alter the limits of, or abolish

any saza or circle, so constituted.

3. The divisions, districts, sub-divisions, talukas, circles, sazas and villages existing at the commencement of this Code shall continue

under the names they bear respectively to be the divisions, districts, sub-divisions, talukas, circles, sazas and villages unless otherwise altered under this Section.

4. Every notification or order made under this Section shall be subject to the condition of previous publication; and the provisions of

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Section 24 of the Bombay General Clauses Act, 1904, shall so far as may be apply in

relation to such notification or order, as they apply in relation to rules to be made after

previous publication."

8. The perusal of sub-section (1) of Section 4, therefore, would

reveal that the State Government is empowered to specify the

District which constitute a division; the sub-divisions which

constituted a district; the talukas which constitute a sub-division;

the village which constitutes a taluka; the local area which

constitutes a village by publishing in the official gazette. Likewise

under Clause (vi) of sub-section (1) of Section 4, the State

Government is also empowered to alter the limits of any such

revenue area so constituted by amalgamation, division or in any

manner whatsoever, or abolish any such revenue area and may

name and after the name of any such revenue area. However,

sub-section (4) of Section 4 provided that every notification or order

made under the said section shall be subject to the condition of

previous publication and the provisions of Section 24 of the Bombay

General Clauses Act, 1904, shall, so far as may be applied in

relation to such notification or order, as they apply in relation to

rules to be made after previous publication.

9. It would thus be necessary to refer to Section 24 of the

Bombay General Clauses Act, 1904 which reads thus:-

9 PIL72-13.odt

"24. Where, by any Bombay Act [or Maharashtra Act], a power to make rules or by-laws is expressed

to be given subject to the condition of the rules or by-laws being made after previous publication, then the following provisions shall apply, namely:-

a) The authority having power to make the rules or by-laws shall, before making them, publish a draft of the proposed rules or by-laws for the

information of persons likely to be affected

thereby;

b) The publication shall be made in such manner as that authority deems to be sufficient or, if

the condition with respect to previous publications so requires, in such manner as the [Central Government, or as the case may

be, the [State] Government] prescribe;

c) There shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration;

d) The authority having power to make the rules or by-laws, and where the rules or by-laws are to be made with the sanction, approval or concurrence of another authority, that

authority also, shall consider any objection or suggestion which may be received by the authority, having power to make the rules or by-laws from any person with respect to the draft before the date so specified ;

e) The publication in the [Official Gazette] of a rule or by-laws purporting to have been made in exercise of a power to make rules or by-

                                    10                        PIL72-13.odt        


                    laws   after    previous   publication       shall      be

conclusive proof that the rule or by-law has

been duly made."

10. Clause (a) of Section 24 of the Act would, therefore,

provide that the authority having power to make the rules or by-

laws shall, before making them, publish a draft of the proposed

rules or by-laws for the information of persons likely to be affected

thereby. Clause (b) provides that the publication shall be made in

such manner as that authority deems to be sufficient or if the

condition with respect to previous publication so requires, in such

manner as the Central Government , or as the case may be, the

State Government, prescribes. Clause (c) provides that there shall

be published with the draft a notice specifying a date on or after

which the draft will be taken into consideration. Clause (d) provides

that the authority having power to make the rules or by-laws, and

where the rules or by-laws are to be made with the sanction,

approval or concurrence of another authority, that authority also,

shall consider any objection or suggestion which may be received

by the authority, having power to make the rules or by-laws.

Clause (e) provides that the publication in the official gazette of a

rule or by-laws purporting to have been made in exercise of a

power to make rules or by-laws after previous publication shall be

conclusive proof that the rule or by-law has been duly made.

11. No doubt that the power to be exercised by the State

11 PIL72-13.odt

under sub-section (4) is legislative in nature. No doubt that it is

also equally settled that the principles of natural justice are not

required to be followed by the authority when it discharges its

legislative function. However, when the Legislature itself in its

wisdom has provided that the principles of natural justice are

required to be followed, then authority while exercising the power is

bound to follow the principles of natural justice. In the present

case, sub-section (4) of Section 4 of the Code specifically provides

that the provision as made in section 24 of the Bombay General

Clauses Act shall apply in relation to the notification or order to be

issued under said Section 4.

12. The Apex Court in the case of State of Punjab .vs.

Tehal Singh and ors. reported in AIR 2002 Supreme Court 533

has observed thus:

"It is almost settled law that an act legislative in

character primary or subordinate, is not subjected to rule of natural justice. In case of legislative act of legislature, no question of application of rule of natural justice arises. However, in case of

subordinate legislation, the legislature may provide for observance of principle of natural justice or provide for hearing to the resident of the area before making any declaration in regard to the territorial area of a Gram Sabha and also before establishing a Gram Sabha for that area. We have come across many enactments where an opportunity of hearing has been provided for

12 PIL72-13.odt

before any area is excluded from one Gram Sabha and included it in different Gram Sabhas or a local

authority. However, it depends upon the legislative wisdom and the provisions of an

enactment. Where the Legislature has provided for giving an opportunity of hearing before excluding an area from a Gram Sabha and including it in

another local authority or body, an opportunity of hearing is sine qua non and failure to give such an opportunity of hearing to the residents would

render the declaration invalid."

13. It could thus be seen that the Apex Court has clearly held

that an act legislative in character primary or subordinate, is not

subjected to rule of natural justice. It has, however, held that in

case of subordinate legislation, the legislature may provide for

observance of principle of natural justice or provide for hearing to

the residents of the area before making any declaration in regard to

the territorial area of a Gram Sabha and also before establishing a

Gram Sabha for that area. The Apex Court has further held that

where the Legislature has provided for giving an opportunity of

hearing before excluding an area from a Gram Sabha and including

it in another local authority or body, an opportunity of hearing is

sine qua non and failure to give such an opportunity of hearing to

the residents would render the declaration invalid.

14. The Apex Court in the case of State of Orissa .vs.

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Sridhar Kumar Mallik and ors. reported in (1985) 3 Supreme

Court Cases 697, was considering a question as to whether the

notification issued by the State Government for the purpose of

constituting a notified area under the Orissa Municipal Act, 1950

was legal or not. The Apex Court has observed thus:-

"6. The extension of the Orissa Municipality Act to an area other than a municipality is a matter of serious moment to the residents of the area. It

results in the provisions of amenities and conveniences necessary to civil life and their

regulation by a local body. But the Act also provides for the imposition of taxes of different

kinds on the residents. The tax structure does not embody an integrated unified impost expressed in a single tax measure. Different kinds of taxes are

contemplated by the Act. The scheme set forth in Chapter XXX-A of the Act intends that before the

Government extends the operation of the Act to an area under a municipality it must afford an

opportunity to the local residents to object to the proposed action. The objections are submitted to the District Magistrate, who forwards them along with his views to the State Government. The State

Government must take into consideration all the material before it and decide thereafter what should be the precise area to which the Act should be extended, and indeed whether all the provisions of the act or only certain specified provisions should be so extended. The possibility of some only of the provisions of the Act being applied to the notified area is evident from the terms in which the

14 PIL72-13.odt

grant of power has been conferred on the State Government. Sub-section (1) of Section 417-A

specifically envisages that when issuing the notification contemplated therein the State

Government must decide whether administrative provision needs to be made "for all or any of the purposes" of the Act in the area proposed to be

notified. Unless the proposal formulated in the proclamation made under sub-section (1-a) of Section 417-A is precise and clear, and indicates

with sufficient accuracy the area intended to be

notified, and further indicates whether administrative provision is proposed for all the the

purposes of the Act or only some of them, and if

only some of them then which of them, it will not be possible for the residents to properly avail of the right conferred on them by the statute to make

their objections to the proposal of the State

Government. We do not see how it can be otherwise."

(Underlining ours)

15. It could thus be seen that the Apex Court has held that

the scheme set out in the said Act provides that before the

Government extends the operation of the Act to an area under a

municipality, it must afford an opportunity to the local residents to

object to the proposed action. It could be further seen that the

Apex Court has further held that unless the proposal formulated in

the proclamation made under sub-section (1-a) of Section 417-A is

precise and clear and indicates with sufficient accuracy the area

15 PIL72-13.odt

intended to be notified and further indicates whether the

administrative provision is proposed for all the purposes of the Act

or only some of them, and if only some of them then which of

them, it will not be possible for the residents to properly avail of the

right conferred on them by the statute to make their objections to

the proposal of the State Government. After reproducing the

notification in paragraph 7, the Apex Court held that the

notification was not of the kind which will ensure that the intention

behind making it and calling for objections will be served. It could

thus be seen that, it has been held by the Apex Court that a draft

notification is not an empty formality. The draft notification must

be precise and clear and should indicate with sufficient accuracy

the area intended to be notified , so that the opportunity available

to the citizens can be effectively availed by them by making their

objections/suggestions in proper perspective.

16. It will also be relevant to refer to the observations of the

Apex Court in the case of The Municipal Corporation Bhopal,

M.P. .vs. Misbahul Hasan and others reported in (1972) 1

Supreme Court Cases 696. The Apex Court while construing the

provisions of Section 24 of the M.P. General Clauses Act, 1955

which is pari materia with Section 24 of the Bombay General

Clauses Act, has observed thus:-

"13. The legislative procedure envisaged by Section 24, set out above, is in consonance with

16 PIL72-13.odt

notions of justice and fair-play as it would enable persons likely to be affected to be informed so that

they may take such steps as may be open to them to have the wisdom of a proposal duly debated and

considered before it becomes law. This mandatory procedure was not shown to have been complied with area."

17. It could thus be seen that it appears to be settled position

of law that the requirement of previous publication inviting

objections and suggestions is not an empty formality. It is with an

intention to enable persons likely to be affected , to be informed, so

that they may take steps as may be open to them and the

objections/suggestions made would be required to be taken into

consideration by the authorities before issuing a final notification.

In the present case, the draft notification provided for establishment

of headquarter of the sub-division at Sadak-Arjuni. However, the

final notification provides for establishment of the headquarter at

Morgaon-Arjuni. It could thus be seen that insofar as the

establishment of headquarter is concerned, the final notification is

totally different from the draft notification.

18. The learned Additional Government Pleader as well as Mr.

Dangre, learned counsel appearing on behalf of the intervenors

heavily relied on the observations of the Division Bench of this

Court in the case of Prashant Babusaheb Ghiramkar (supra). In

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the said case, in the draft notification the headquarter in respect of

sub-division of Purandar and Daund talukas was shown at Purandar

(Saswad). However, in the final notification the headquarter of the

sub-division was notified at Pune. The Division Bench of this Court

held that the action of the State Government was not permissible.

The Division Bench has observed thus:-

"15. We are in respectful agreement with the principle of law enunciated as above by the

Rajasthan High Court. When a draft rule or by-law

is published and objections are invited to it as required under section 24 of the Bombay General Clauses Act, it is open for the rule making authority

to consider objections and suggestions and thereafter make changes to it, but those changes must be incidental or ancillary to the draft rule or

by-law. Those changes must be conceivable within

the frame-work of the draft proposal and not foreign to the draft. For example, in our case, when two or more Talukas are proposed to

be included within a sub-division with headquarters at one Taluka, the proposal after consideration of suggestions and objections may well be altered by dropping

one or the other Taluka/s from the proposal or changing the headquarters from one of those Talukas to the other of them. But providing for a headquarters at an altogether different place not included in any of the Talukas forming the sub-division was a proposal foreign to the draft. There was no opportunity afforded to the members of public to make objections or

18 PIL72-13.odt

suggestions to such a proposal. Such a proposal was not conceivable within the framework of the

draft proposal."

(emphasis supplied)

Relying on the aforesaid observations of the Division Bench, which

have been emphasised by us, it is contended by the learned

counsel for the State as well as the intervenors that the Division

Bench has clearly held that the change of the headquarter from one

of those talukas to the other of them would be permissible. In our

considered view the aforesaid observations cannot be held to be a

binding precedent or a ratio decidendi to hold that the change of

headquarter from one taluka as proposed in the draft notification to

the other taluka not proposed in the draft notification is permissible.

19. The Apex Court in the case of the Regional Manager

and another .vs. Pawan Kumar Dubey reported in (1976) 3

Supreme Court Cases 334 has observed thus:-

"It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some

conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts."

20. It could thus be seen that the Apex Court has held that it

is the rule deducible from the application of law to the facts and

19 PIL72-13.odt

circumstances of a case which constitutes its ratio decidendi and

not some conclusion based upon facts which may appear to be

similar. It has been further held that one additional or different fact

can make a world of difference between conclusions in two cases

even when the same principles are applied in each case to similar

facts.

21. It will also be relevant to refer to the judgment of the

Apex Court in the case of Union of India and others .vs.

Dhanwanti Devi and ors. reported in (1996) 6 Supreme Court

Cases 44. The Apex Court has observed thus:-

"What is of the essence in decision is its ratio and not every observation found therein not what

logically follows from the various observations

made in the judgment. Every judgment must be read as applicable to the particular facts proved,or assumed to be proved, since the generality of the

expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.

It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it, is

20 PIL72-13.odt

the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the

subject matter of the decision, which alone has the force of law and which, when it is clear what it was,

is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision

arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason,

and the precedent by long recognition may mature

into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its

ratio decidendi."

It could thus be seen that the Apex Court has clearly held that it is

not everything said by a Judge while giving judgment that

constitutes a precedent. What is binding is the principle upon which

the case is decided. It is further held that what is of the essence in

a decision is its ratio and not every observation found therein nor

what logically follows from the various observations made in the

judgment. It is further held that every judgment must be read as

applicable to the particular facts proved or assumed to be proved.

It is further held that it would, therefore, be not profitable to extract

a sentence here and there from the judgment and to build upon it.

It would be further relevant to refer to the following observations:-

"Therefore, in order to understand and appreciate the binding force of the decision it is always necessary to see what were the fats in the case in

21 PIL72-13.odt

which decision was given and what was the point which had to be decided. No judgment can be read

as if it is statute. A word or a clause or a sentence in the judgment cannot be regarded as a full

exposition of law."

The Apex Court in clear terms has held that in order to understand

and appreciate the binding force of a decision, it is always

necessary to see what were the facts in the case in which the

decision was given and what was the point which had to be

decided. It is, therefore, held that a word or a clause or a sentence

in the judgment cannot be regarded as a full exposition of law.

22. In the light of the aforesaid, let us examine what were the

facts in the case of Prashant Babusaheb Ghiramkar(supra) and

as to whether the observations on which the learned counsel for the

respondents rely can be treated as a binding precedent. The

question that arose for consideration in the aforesaid case was that

as to whether the headquarter of the sub-division could be

permissible at a place outside the sub-division instead of the one

proposed in the draft notification. The Division Bench held that that

was not permissible. However, the question as to whether if the

draft notification provides for establishment of headquarter at "A"

place, whether the final notification can provide for establishment

of headquarter at "B" place, never arose for consideration. As such

we are of the considered view that the aforesaid observations

22 PIL72-13.odt

cannot be said to have a binding effect or constructed as ratio

decidendi for deciding the present petition. As held by the Apex

Court in the case of the Regional Manager (supra), a slight

difference of facts can make a vast difference in the result.

23. In the present case, we are of the considered view that

the objections and suggestions that were invited were for

establishing the headquarter of the sub-division at Sadak-Arjuni

and not at Morgaon-Arjuni. As already held hereinabove the right

provided in the statute to the citizens cannot be an empty formality.

It would have been a different matter that the draft proposal itself

provided the headquarter to be either at Sadak-Arjuni or Morgaon-

Arjuni. However, the draft proposal specifically provided for the

headquarter of the sub-division only at Sadak-Arjuni.

24. In that view of the matter, we find that the impugned

notification is in violation of the provisions as incorporated in

Section 4 of the Code as well as Section 24 of the Bombay General

Clauses Act. As has been held by the Apex Court that provisions

are mandatory and any departure therefrom is not sustainable in

law.

25. Insofar as the merits of the rival claims are concerned,

we do not propose to go into that aspect. By now it is settled

position of law that, in such matters, we cannot sit in appeal over

23 PIL72-13.odt

the decisions of the authorities. While exercising the powers of the

judicial review under Article 226 of the Constitution of India, a

limited inquiry that would be permissible is as to whether the

decision making process of the authorities is legal or not and as to

whether the same suffers from the illegality, irrationality or the

arbitrariness. In that view of the matter though it is tried to be

urged at length that either Sadak-Arjuni or Morgaon-Arjuni are more

suitable, it will not be permissible for us to go into that aspect of the

matter. That decision will have to be left to the wisdom of the

authority vested with the said power.

26. In the result, we hold that the impugned notification

dated 26.07.2013 is not sustainable in law and, therefore, quashed

and set aside. Rule is, therefore, made absolute in the aforesaid

terms with no orders as to costs.

                  (V.M. Deshpande, J. )                        (B.R. Gavai, J.)
                                      ...





    halwai/p.s.