Bombay High Court
Rajendra Fakirrao Kanade vs The State Of Maharashtra And ... on 31 August, 2015
Bench: S.V. Gangapurwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6179 OF 2015
Balasaheb S/o Asaram Gaikwad,
Age : - 35 Years, Occu.: Business,
R/o Deolai, near Beed bypass,
Tq. and District Aurangabad. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai-400032.
2. The Divisional Commissioner,
Aurangabad.
3. The Collector,
Aurangabad.
4. Municipal Corporation
(Through its Commissioner)
Aurangabad.
5. Tahsildar and Administrator,
Satara-Devalai Municipal Council,
Aurangabad.
6. State Election Commissioner
(Through its Commissioner)
New Administrative Building,
Opposite to Mantralaya, Mumbai. .. Respondents
Ms. Pradnya S. Talekar, Advocate h/f Shri S. B. Talekar,
Advocate for the Petitioner.
Shri G. K. Thigle, Addl. G. P. for Respondent Nos. 1 to 3 and 5.
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Shri A. M. Karad, Advocate for the Respondent No. 4.
Shri S. T. Shelke, Advocate for the Respondent No. 6.
Shri Pradeep Deshmukh, Advocate h/f Shri Yashodeep P.
Deshmukh, Advocate for the Intervenor.
WITH
WRIT PETITION NO. 5961 OF 2015
Rajendra S/o Fakirrao Kanade,
Age : 23 Years, Occu.: Agril.,
R/o Gat No. 134, Bharat Mata Colony,
Deolai Parisar, Aurangabad,
Tal. & Dist. Aurangabad.
ig .. Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai.
2. The State Election Commissioner
Maharashtra State, Madam Kama,
Road, Fort, Mumbai.
3. The Divisional Commissioner,
Aurangabad.
4. The District Collector, Aurangabad,
Tal. & Dist. Aurangabad.
5. Shri Vijay Raut,
The Then Administrator,
Presently working as Tahsildar,
Aurangabad. .. Respondents
Shri S. S. Thombre, Advocate for the Petitioner.
Shri G. K. Thigle, Addl.G.P. for Respondent Nos. 1, 3 to 5.
Shri S. T. Shelke, Advocate for the Respondent No. 2.
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Shri Pradeep Deshmukh, Advocate h/f Shri Yashodeep P.
Deshmukh, Advocate for the Intervenor.
Shri Girish L. Awale, Advocate for the Applicant in C. A. No.
8115/2015.
CORAM : S. V. GANGAPURWALA AND
V. K. JADHAV, JJ.
Close for Judgment on : 05.08.2015
Judgment Pronounced on : 31.08.2015
JUDGMENT (Per S. V. Gangapurwala, J.) :-
.
Rule. Rule made returnable forthwith. With the consent of
the learned counsel for respective parties taken up for final
hearing.
2. The writ petitions assail same notification and seek the
same declaration. The challenge to the notification and
declaration is based on same set of facts and law, as such to avoid
rigmarole the petitions are decided together.
3. The petitioners in these writ petitions are residents within
the territorial limits of Satara Deolai Municipal Council.
Initially Satara and Deolai were separate Gram Panchayats.
After following the procedure as enumerated in the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships
Act, 1965 (hereinafter referred as to the "Municipal Councils Act"
for the sake of brevity) vide notification dated 28.08.2014, Satara
Deolai Municipal Council was constituted including the
territories as specified in the said notification. After
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establishment of the Satara Deolai Municipal Council, the
Government appointed the Tahsildar Aurangabad as Special
Administrator of the newly constituted Satara Deolai Municipal
Council to exercise all the powers and duties relating to Satara
Deolai Municipal Council. On or about 07.01.2015 the State
Election Commission decided to form wards, provide reservation
by draw system for the Satara Deolai Municipal Council. On
20.01.2015 the State Election Commission published the revised
programme regarding formation of wards providing reservation
and holding draws for the said Municipal Council.
4. On 03.02.2015, the General Body of the Municipal
Corporation Aurangabad, passed a resolution to include the
entire area of the newly constituted Satara Deolai Municipal
Council within the Aurangabad Municipal Corporation and to
forward recommendations to that effect for approval of the
Government. Thereafter, on or about 11.02.2015 State of
Maharashtra published a draft notification U/Sec. 3(3)(a) of the
Maharashtra Municipal Corporations Act, 1949 (hereinafter
referred as to the "Corporations Act" for the sake of brevity) for
extending the area of Municipal Corporation Aurangabad, to
include the total area of newly constituted Satara Deolai
Municipal Council into the Municipal Corporation Aurangabad.
Thereafter, on 14.05.2015 the Urban Development Department,
State of Maharashtra issued a final notification altering the
boundaries of Aurangabad Municipal Corporation and thereby
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including the area of newly constituted Satara Deolai Municipal
Council into the Municipal Corporation Aurangabad. It is the
said notification which is assailed in the present writ petitions.
So also a declaration is sought that the Satara Deolai Municipal
Council continues to be in existence.
5. Ms. Pradnya S. Talekar and Mr. S. S. Thombre, the learned
counsel for respective petitioners eruditely canvassed their
submissions. The contour of their submissions appears to be as
under :
(A) The State has not issued any notification U/Sec. 6 of the
Municipal Councils Act declaring that whole of the local area
comprising municipal area shall cease to exist. In absence of
such notification the Satara Deolai Municipal Council does not
cease to exist, inter alia the notification issued U/Sec. 3 of the
Corporations Act is bad in law. According to the learned counsel,
there is no consultation as required under proviso to Sec. 6(1) of
the Municipal Councils Act. The same is mandatory. The
Government through Collector vide letter dated 10.02.2015 had
asked the Tahsildar who was appointed as Special Administrator
of the Municipal Council vide notification dated 28.12.2014 to
give his report as regards the resolution of the Municipal
Corporation Aurangabad dated 03.02.2015. The said letter was
dispatched by the Collector at 5.00 p.m. to the Tahsildar and the
Tahsildar by 6.00 p.m. within one hour of the receipt of letter
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submitted report to the Collector. The said consultation is not
consultation in the eyes of law. The consultation cannot be an
empty formality. The learned counsel rely on the judgment of the
Supreme Court of U. K. in the case of R Moseley Vs. London
Borough of Haringey reported in (2014) UKSC 56. The
learned counsel also rely on the judgment of the Apex Court in
the case of Supreme Court Advocates-On-Record
Association and others Vs. Union of India reported in
(1993) 3 SCC 441. The consultation has to be based on an
enquiry and fact finding. The administrator has only given
vague opinion. No factual details are given by the administrator.
(B) While issuing final notification U/Sec. 3 of the
Corporations Act, the objections raised are not considered, they
are not decided. Only farce is made of objections being decided.
(C) Unless there is a holistic demarcation on formation of
wards and reservation of modified (increased) area of
Aurangabad Municipal Corporation the area of Satara Deolai
Municipal Council cannot be included in the Municipal
Corporation Aurangabad.
(D) The State did not conduct the elections within six months
of the newly constituted Municipal Council as per Sec. 41A of the
Municipal Councils Act. The same is violative of Article 240-U of
the Constitution of India. There was no reason to prolong the
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elections, once the wards were formed. The Apex Court in a case
of State of Maharashtra and others Vs. Jalgaon
Municipal Council and others reported in (2003) 9 SCC
731 though held that, there is no hiatus between dissolution of
Gram Panchayat and creation of Municipal Council. However, in
the present case, there is prolonged period of hiatus. The same is
unconstitutional and against the goal of democratic self
governance.
(E)
Article 243-Q of the Constitution of India deals with
constitution of municipalities and mandates certain factors to be
considered before specifying an area as smaller urban area or
transitional area or larger urban area as the case may be. They
include the population of area, density of population, revenue
generated for local administration, the percentage of employment
and economic importance. None of these factors were considered
by the State Government while issuing the notification dated
14.05.2015 and including the area of Satara Deolai Municipal
Council in the Aurangabad Municipal Corporation.
(F) The draft notification dated 11.02.2014 issued U/Sec. 3 of
the Corporations Act was challenged in the High Court in Writ
Petition No. 2994 of 2015. The Court in its order dated
18.03.2015 in the said writ petition has observed that, State
Election Commission on 24.02.2015 directed the State
Government not to change the existing boundaries of the
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Aurangabad Municipal Corporation taking into consideration the
mandate of Article 243(z)(a) of the Constitution of India as well
as Sec. 14 of the Corporations Act. Pursuant to the order of State
Election Commission, the State of Maharashtra has also issued
an order on 24.02.2015 thereby suspending the process of
inclusion of Satara Deolai Municipal Council area into
Aurangabad Municipal Corporation. In view of that, the petition
was disposed of. However, without issuing any fresh draft
notification, final notification is issued on the basis of same draft
notification. The final notification dated 14.05.2015 is void ab-
initio.
(G) The objections are not considered. Three different
objections were raised and none has received any consideration
at all. The objections were connived at rather ignored and were
not decided.
(H) The Executive cannot change its stand without cogent
reasons. The government had decided to create Municipal
council for the area of Satara Deolai after many requests and
agitations by the public and resolutions of the Gram Panchayats,
final notification was issued to constitute the Municipal Council
on 28.08.2014. Even administrator was appointed. The wards
were demarcated. The reservation was also declared for each
ward. The post of President was reserved for S.C. category and
all of a sudden notification is issued to include the area of Satara
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Deolai Municipal Council into the Aurangabad Municipal
Corporation. Within a short span of time the decision cannot be
changed. The learned counsel for petitioners also rely on the
judgment of a Division Bench of this Court in the case of
Jaishri Vilasrao Khobe Vs. State of Maharashtra
reported in 2014 (3) Bom.C.R. 362.
6. Mr. Thigle, the learned Additional Government Pleader in
lucid manner canvassed following propositions.
(a) The consultation has been properly undertaken. The State
Government had called for the report from the Collector and the
Municipal Commissioner Aurangabad, upon the resolution
passed by the Aurangabad Municipal Corporation to include the
area of Satara Deolai Municipal Council in the Aurangabad
Municipal Corporation. The Collector and the Municipal
Commissioner Aurangabad have submitted their detailed report
to the State Government on 10.02.2015. The Collector
Aurangabad and the Municipal Commissioner Aurangabad have
strongly recommended the inclusion of Satara Deolai Municipal
Council area in Aurangabad Municipal Corporation. On the
basis of these recommendations the draft notification is
published on 11.02.2015 as required by Sub Sec. (3) of Sec. 3 of
the Corporations Act. In response to the draft notification,
objections were called. The suggestions and objections from two
organizations were received. The said draft notification was
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suspended for some time, as it was decided to wait till the
elections of Aurangabad Municipal Corporation are held, as the
election process was in force. The Divisional Commissioner
Aurangabad conducted the enquiry into the suggestions and
objections received in response to the draft notification dated
11.02.2015. The Divisional Commissioner, Aurangabad
conducted the enquiry on 02.05.2015 and submitted his report to
the Government on 12.05.2015. The Commissioner upon enquiry
recommended to the Government that there is no specific point
raised in support of argument that Satara Deolai Municipal
Council area should not be merged with the Aurangabad
Municipal Corporation. In fact, it is in the interest of people of
the Satara Deolai Municipal Council that the area of said
Municipal Council should be merged with Aurangabad Municipal
Corporation, so that the people of said area will get all basic
amenities. The State Government has taken decision to merge
the entire area of Satara Deolai Municipal Council into
Aurangabad Municipal Corporation as it is adjacent to
Aurangabad Municipal Corporation. It is possible to develop
entire area in an integrated manner and provide all basic
amenities to newly added area which is available to the citizens
of Aurangabad Municipal Corporation.
(b) The learned Additional Government Pleader submits that,
once notification U/Sec. 3 of the Corporations Act is issued, then
there is no necessity to issue separate resolution under the
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Municipal Councils Act. The learned Additional Government
Pleader relies on Sec. 3(3)(b) of the Corporations Act and states
that, where any area is included within the limits of larger urban
area under clause (a), then any appointments, notifications,
notices, taxes, orders, schemes, licenses, 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 time being in force, but save as otherwise provided
in Sec. 129-A or any other provisions of this Act apply to and be
in force in the additional area also from the date that area is
included in the city. According to the learned Addl. G. P. in view
of the same, there is no need to have a separate notification
U/Sec. 6 of the Municipal Councils Act. The learned Addl. G. P.
relies on the judgment of the Apex Court in the case of Solapur
MIDC Industries Association and others Vs. State
of Maharashtra and others reported in (1996) 9 SCC
621. The learned Additional Government Pleader submits that,
while considering the objections, it is not necessary to give
personal hearing. The principles of natural justice are excluded
from this process. He relies on the judgment of the Apex Court
in the case of Sundarjas Kanyalal Bhatija and others
Vs. Collector, Thane, Maharashtra and others
reported in (1989) 3 SCC 396. According to the learned
Additional Government Pleader there is no hiatus in constitution
of Municipal Corporation of an area of a Municipal Council and
dissolution of Municipal Council.
12 WP 6179.15
7. We have considered the submissions canvassed by the
learned counsel for respective parties. Before we advert to the
submissions canvassed by the learned counsel, it would be
appropriate to refer to the relevant provisions.
THE MAHARASHTRA MUNICIPAL
CORPORATIONS ACT, 1949
1. ......
[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....";
[(1A) The Corporation of the City of
Nagpur incorporated under the City of Nagpur
Corporation Act, 1948 for the larger urban area
specified in the Notification issued in this respect
under clause (2) of article 243-Q of the Constitution of
India shall, on and fromt he date of coming into force
of the Bombay Provincial Municipal Corporations
(Amendment) and the City of Nagpur Corporation
(Repeal) Act, 2011, be deemed to have been constituted
under this Act and accordingly the provisions of this
Act shall apply to the area of the City of Nagpur.]
13 WP 6179.15
(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 notifications int he
Official Gazette, any urban area with a population of
not less than three laks 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 teh name of the
Municipal Corporation of the City of...;]
[(a) [Subject to the provisions of the 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, licenses, 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 time being in
force, but save as otherwise provided in section 1`29A
or any other provisions of this Act, apply to and be in
force int he additional area also fromt he 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:
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[Provided that, where the population of any
urban area, in respect of which a Council has been
constituted under the provisions of the Maharashtra
Municipal Councils, Nagar Panhayats and Industrial
Townships Act, 1965, as per the latest census figures
has exceeded three lakhs, the State Government may,
for the purpose of constituting a Corporation under
this Act for such urban area, with the same
boundaries, dispense with the condition of previous
publication of the notification under this section.]
THE MAHARASHTRA MUNICIPAL COUNCILS,
NAGAR PANCHAYATS AND INDUSTRIAL
TOWNSHIPS ACT, 1965
1. ....
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, Mah. XLI of 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,
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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
writing with the reasons therefor, to the Collector of
the District within [not less than thirty days] 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.
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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.
[Provided that, the State Government may dispense
with the provisions of sub-sections (3), (4) and (5) of
Section 3 regarding proclamation and of the proviso to sub-
section (1) of this Section regarding consultation, in respect
of the municipal area, where the population, as per the
latest census figures has exceeded three lakhs; and a
Corporation under the provisions of the Bombay Provincial
Municipal Corporation Act, 1949, is being constituted for
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such area, with the same boundaries.]
341. Abolition of municipalities
When the whole of the local area comprising a
municipal area ceases to be a municipal area, with effect
from the day on which such local area ceases to be a
municipal area-
(i) the council constituted for such
municipal area shall cease to exist or function;
(ii) the Councillors of the Council [* * *]
shall vacate office;
(iii) the Director may, notwithstanding
anything contained in this Act or any other law for
the time being in force, by any order published in the
Official Gazette provide in respect of such area for
all or any of the matters specified in paragraphs (vi)
to (xii) (both inclusive) of sub-section (2) of section
340 and the provision of sub-section (3) of that
section shall apply to such order.
08. The function of the Government in establishing a Corporation is
a legislative process. The Apex Court in the case of Sundarjas
Kanyalal Bhatija and others Vs. Collector, Thane,
Maharashtra and others referred to supra has observed
that, the function of the Government in establishing a
Corporation under the Act is neither executive, nor
administrative, it is a legislative process. The only question that
can be examined is whether the statutory provisions have been
complied with. The Apex Court has further observed that, the
Court cannot sit in judgment over such decision of establishing of
Corporation U/Sec. 3 of the Corporations Act. It cannot lay down
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norms for the exercise of that power. It cannot constitute even
"its juster will for theirs".
09. The draft notification U/Sec. 3 of the Corporations Act was
published. The previous publication was made. The consultation
as required under Sub Section (3) of Sec. 3 of the Corporation Act
is consultation with the corporation. Here the resolution itself
was passed by the Aurangabad Municipal Corporation. The
requirement of Sub Sec. (3)(a) of Sec. 3 of the Corporations Act as
such will be deemed to have been complied with. It is pursuant
to the request of the Municipal Corporation for extending the
area of Auragabad Municipal Corporation and including the area
of Satara Deolai Municipal Council, the State Government had
issued the notification. While issuing the final notification
U/Sec. 3 of the Corporations Act, consultation with Corporation
only appears to be contemplated and with no other body. As
stated earlier the Corporation itself has passed the resolution.
Subsequently, even the report from the Municipal Commissioner
and the Collector was called by the State Government before
issuance of final notification, itself would suggest that the
consultation as required U/Sec. 3(3)(a) of the Corporations Act
has been substantially adhered to.
10. Both the parties have relied upon the judgment of the Apex
Court in the case of State of Maharashtra and others
Vs. Jalgaon Municipal Council and others referred to
supra. In that case as the population of the Jalgaon Municipal
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Council had increased beyond three lakhs, the Jalgaon Municipal
Council was constituted as Municipal Corporation. It was held
by the Apex Court in the said case that, occurrence of hiatus in
the process of conversion of an area from Municipal Council to
Municipal Corporation is inevitable. Article 243-U of the
Constitution of India 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.
11. It is an admitted position on record that, though
notification U/Sec. 3 Sub-section (3) of the Corporations Act is
published thereby extending its area and including the area of
Satara Deolai Municipal Council within its realm, the State has
not published any notification under the provisions of the
Maharashtra Municipal Councils Act declaring that the whole of
the local area comprising Satara Deolai Municipal Council shall
cease to be Municipal Council area. In the case of State of
Maharashtra and others Vs. Jalgaon Municipal
Council and others referred to supra, only area of Municipal
Council was being converted into a Municipal Corporation, the
State had issued two draft notifications. One was under the
provisions of the Corporations Act (the then Bombay Provincial
Municipal Corporations Act) and another under the provisions of
the Municipal Councils Act. Thereafter after inviting and
considering the objections two final notifications were issued.
One under the Bombay Provincial Municipal Corporations Act
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and another under the Municipal Councils Act. In the present
case, no notification has been issued under the provisions of the
Municipal Councils Act. The Apex Court in the said case had
observed as under :
"Jalgaon Municipal Council was already in
existence, Jalgaon being a smaller urban area. It
was proposed to be converted into a larger urban
area. This process would involve abolition of
"municipal area" as defined within the clause (24) of
Section 2 of MR 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."
12. Section 2(24) of the Municipal Councils Act lays down that
municipal area means the territorial area of a Municipal Council or a
Nagar Panchayat. Sec. 8 of the Municipal Councils Act states that, a
Municipal Council constituted or deemed to be constituted for every
smaller urban area U/Sec. 3 shall be a body corporate by the name of
Municipal Council and shall have perpetual succession and a common
21 WP 6179.15
seal and shall have the power to acquire, hold and dispose of property
and to enter into contracts and may by the said name sue or be sued
through its Chief Officer. Thus, it is clear that, once the Municipal
Council is constituted, it has a status of body corporate and has a
perpetual succession and a common seal. For a body corporate to be
abolished the procedure as is required in the statute will have to be
followed. Sec. 6 of the Municipal Councils Act lays down the manner
in which any local area comprising Municipal Council shall cease to be
a Municipal area. Sec. 6(1) of the Municipal Councils Act lays down
subject to the provisions of sub-section (2) of Section 3, the State
Government may by notification in the Official Gazette (declare whole
of any local area comprising a municipal area shall, cease to be a
municipal area). Section 3 of the Municipal Councils Act lays down
the procedure of specifying area as smaller urban area which requires
publication of notification in the Official Gazette and also in atleast
one news paper circulated in the area to be specified in the notification
a proclamation announcing the intention of Government to issue such
notification and inviting all persons to submit the objections to the
said proposal and thereafter final notification to be published only, if,
it is of the opinion that the objections are insufficient or invalid. So
also while issuing notification in the Official Gazette declaring a
particular Municipal area to cease to be a Municipal area the
procedure as required under Sub-Sec. (3), (4) and (5) of Section 3 has
to be mutatis mutandis followed. In the present case, no such
procedure is followed. In fact, no publication is made in the Official
Gazette as required in Sec. 6 read with Sec. 3 of the Municipal
Councils Act declaring the area of Satara Deolai Municipal council to
cease to be an area of the said Municipal Council. Even Sec. 341 of the
Municipal Councils Act deals with abolition of Municipal Council and
22 WP 6179.15
its consequences. It lays down that whole of a local area comprising a
Municipal Council ceases to be Municipal area from the day such local
area ceases to be a Municipal area. The day on which such local area
shall cease to be a Municipal area will have to be notified as required
U/Sec. 6(1)(d) of the Municipal Councils Act.
13. The reliance placed by respondents in the case of Solapur
MIDC Industries Association and others Vs. State
of Maharashtra and others referred to supra would be of no
avail. In the said case before the Apex Court, the limits of the
corporation area were extended to the industrial area by notification
U/Sec. 3(3) of the Corporations Act. However, no notification was
issued under the Industrial Development Corporation Act. The Apex
Court upheld the said notification, though the State Government had
not yet withdrawn the Industrial estate/industrial area concerned on
the ground that both the enactments i. e. the Bombay Provincial
Municipal Corporation Act and the Industrial Development
Corporation Act operate in different sphere both can co-exist and the
provisions of the Industrial Development Corporation Act would still
apply. In the present case, spheres of operations of two enactments
would have an overlapping area of operation. It may purport to
operate on certain occasions on an overlapping area. Such an occasion
or event conceive a situation that both enactments would be operable
simultaneously. Such a situation is incompatible and not palatable.
Under the legislative enactments this does not appear to be the
intention of legislature. The Municipal Councils Act deals with a
smaller urban area, whereas Corporations Act concerns with larger
urban area. In fact, both the acts cannot operate for one area
simultaneously.
23 WP 6179.15
14. Much emphasis is placed by the learned Additional Government
Pleader on Sec. 3(3)(b) of the Corporations Act stating that once an
area is included within larger urban area, all the provisions of the
Corporations Act shall axiomatically apply to the said additional area
also from the date, the area is included in the city and as such it is not
necessary to issue separate notification under the Municipal Councils
Act. In our considered view said provision cannot be read in isolation
de-hors the provisions of the Municipal Councils Act. As discussed,
once Municipal Council is constituted, it has a status of body corporate
and has perpetual succession and a common seal. Sec. 5 of the
Municipal Councils Act also lays down that, once the area is classified
as municipal area, all the relevant provisions of the Municipal
Councils Act shall apply to the said re-classified municipal area.
Whereas Sec. 6(1)(d) requires a declaration to be made by notification
in Official Gazette that any local area comprising municipal area
shall cease to be a municipal area. Proviso to Sec. 6(1) of the
Municipal Councils Act further lays down 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
or other local authorities concerned. Sub Section (2) of Section 6 of the
Municipal Councils Act further provides prior to the publication of
notification under sub-section (1), the procedure prescribed in sub-
section (3), (4) and (5) of Section 3 shall mutatis mutandis be followed.
Under second proviso to Section 6 of the Municipal Councils Act an
exception is made available dispensing with the provisions of Sec. (3),
(4) and (5) of Sec. 3 regarding proclamation and of consultation as
required in proviso to sub-section (1) only in respect of such municipal
area, where the population as per the latest census figures has
exceeded three lakh and a Corporation under the provisions of the
24 WP 6179.15
Bombay Provincial Municipal Corporations Act, 1949 is being
constituted for such area, with the same boundaries. In the present
case, facts are not such. The population of the local area constituting
Satara Deolai Municipal Council is only about 52000 and the same
area is not being constituted as a Corporation. The said area is sought
to be merged with Aurangabad Municipal Corporation. Having regard
to aforesaid, it cannot be said that requirement of Sub-Sec. (3), (4) and
(5) of Sec. 3 of Municipal Councils Act can be dispensed with. Those in
the circumstances of present case would require scrupulous adherence
under the legislative mandate appearing in the section. In the light of
that, adherence to the provisions of Sub Sections (3), (4) and (5) of Sec.
3 of the Municipal Councils Act are not dispensed with.
15. An interpretation leading to functional disjunction shall have to
be avoided. That being absolutely not intended under the two
legislation competently enacted. Even, if, there are two provisions
having the force of law and regulating the same subject, those should
as far as possible have to be construed so as to be consistent with each
other. The said provisions will have to be reconciled. The head on
collision between the two provisions of the Statutes will have to be
avoided. A provisions in one statute cannot be read in a manner that
it would render the provision of another statute inoperative and a dead
letter. While interpreting a statute the Court always presumes that
the legislature inserted every part thereof with a purpose and the
legislative intention is that every part of the statute should have
effect. A statute has to be construed in a manner that no part of it
shall be superfluous or nugatory. Full effect will have to be given to
the statutory provisions. If the course is open by which the provisions
of two statutes can be construed harmoniously and the provisions can
25 WP 6179.15
be interpreted in a manner it would not be rendered superfluous, then
the said course is required to be adopted. It is the cardinal rule of law
that in construing an Act a provisions should not be regarded as
superfluous and full effect should be given to it. It is also trite that
when legislature require certain formalities to be adhered and
complied, then the said mandate will have to be respected. The repeal
by implication cannot be admitted, if the two Acts can be reconciled
and can stand together.
16.
Considering the above, the publication of notification in Official
Gazette as required U/Sec. 6(1)(d) of the Municipal Councils Act and
adherence to procedure as laid down in Sub Section (3), (4) and (5) of
Sec. 3 of the Municipal Councils Act will have to be given effect to
before a particular Municipal area is said to have ceased to exists.
Sec. 3(3)(b) of the Corporations Act and Sec. 6(1)(d) and 6(2) of the
Municipal Councils Act will have to be read harmoniously and
coherently so as to avoid repugnancy and to render one provisions
being superfluous or otiose.
17. It thus should be appreciated that, the notification U/Sec. 3 of
the Corporations Act and Sec. 6 read with Sec. 3 of the Municipal
Councils Act ought to be a simultaneous process and their
consequences shall operate and work in tandem.
18. Though the notification U/Sec. 3 of the Corporations Act does
not suffer from any defect, however, the same cannot be given effect to
unless and until a notification U/Sec. 6 of the Municipal Councils Act
as required under the Municipal Councils Act declaring a particular
municipal area to cease to be a municipal area is published in
26 WP 6179.15
accordance with the law and the rules as is required U/Sec. 6 read
with Sec. 3 of the Maharashtra Municipal Councils Act.
19. In the result, the prayer seeking setting aside of notification
dated 14.05.2015 issued U/Sec. 3 of the Maharashtra Municipal
Corporations Act, 1949 is rejected. However, it is declared that the
said notification will not have effect till notification U/Sec. 6 read with
Sec. 3 of the Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965 is issued as per procedure laid down
thereunder declaring the area comprising of Satara Deolai Municipal
Council to cease to exists. The writ petitions are partly allowed.
Rule accordingly is made absolute in above terms. No costs.
Sd/- Sd/-
[ V. K. JADHAV, J. ] [ S. V. GANGAPURWALA, J. ]
bsb/Aug. 15
