Balasaheb Sahebrao Bodkhe vs The State Of Maharashtra And ...
2016 Latest Caselaw 4630 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                           BENCH AT AURANGABAD

                            WRIT PETITION NO. 6362 OF 2013




                                                    
     Balasaheb Sahebrao Bodkhe,
     Age: 32 years, Occu. Agriculture &
     Advocate, R/o Khilad, Tq. Ashti,
     Dist. Beed.                                    ...PETITIONER




                                                   
              versus

     1.       The State of Maharashtra,
              Through Secretary,




                                        
              Revenue and Forest Department
              Mantralaya, Mumbai.

     2.
                             
              District Collector, Beed
              Collector Office, Beed.               ...RESPONDENTS
                            
                                      .....
     Mr. N.K. Tungar, Advocate for petitioner
     Mrs.A.V. Gondhalekar, AGP for respondent No. 1 & 2
                                      .....
                                     WITH
      

                 WRIT PETITION NO. 6813 OF 2013

     1.       Sameer S/o Vazir Pathan,
   



              Age: 25 years, Occu. Social Work,
              R/o Gomalwada, Tal Shirur,
              District Beed.





     2.       Ramkrushna S/o Narayan Misal,
              Age: 45 years, Occu. Agriculture,
              and Advocate, R/o Padali,
              Tq. Shirur, District Beed.

     3.       Santosh Kumar S/o Tukaram





              Dhakane,Age: 35 years, occup.
              Agriculture & Advocate,
              R/o Shirur Kasar, Ta. Shirur Kasar,
              Dist. Beed.                                    ...PETITIONERS

              versus

     1.       The State of Maharashtra,
              Through Secretary,
              Revenue and Forest Department,
              Maharashtra State.
              Mantralaya, Mumbai.




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     2.       District Collector, Beed
              Collector Office, Beed.                ...RESPONDENTS




                                                     
                                      .....
     Mr. V.D. Salunke, Advocate for petitioners
     Mrs.A.V. Gondhalekar, AGP for respondent No. 1 & 2
                                      .....




                                                    
                                       CORAM :  S. V. GANGAPURWALA AND
                                                K.K. SONAWANE, JJ.

RESERVED ON: 21st JULY, 2016.

DELIVERED ON: 11th AUGUST, 2016.

JUDGMENT : ( PER : K.K. Sonawane, J.)

1. Rule. Rule made returnable forthwith and heard finally with

consent of learned counsel for the parties.

2. Both these petitions raise identical controversy as well as relate

to similar facts and circumstances. Therefore, both these petitions were

heard together and are disposed of by this common judgment. Brief

facts relevant for adjudication of the matter in issue are as under :-

The Government of Maharashtra on 26-06-2012 published a

draft notification under section 4 sub-section (4) of the Maharashtra

Land Revenue Code, 1966 inviting objections and suggestions in regard

to area of particular tahsil to constitute sub-division and its revenue

headquarter. Accordingly, in the draft notification, it was proposed that

area of tahsil Gavrai and Shirur Kasar District Beed will constitute sub-

division, namely, Gevrai having its headquarter at Gevrai, District

Beed. Similarly, it was proposed that area of Ashti and Patoda Tahsils

of the District Beed will constitute sub-division as Ashti with its

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headquarter at Ashti, District Beed only. There were objections raised

in regard to inclusion of area of taluqa Shirur Kasar, District Beed in

sub-division Gevrai. However, the Government of Maharashtra vide

impugned notification dated 26-07-2013 shown area of Shirur Kasar

tahsil as a part of sub-division known as "Patoda" with headquarter at

Patoda, District Beed. The area of Ashti Taluka also shown include in

sub-division "Patoda" having headquarter at Patoda. Being dissatisfied

with the impugned notification, petitioners rushed to this Court and

prayed to set aside and quash impugned notification to the extent of

inclusion of area of Shirur Kasar Tahsil, District Beed in sub-division

known as "Patoda" having its headquarter at Patoda as well inclusion of

area of Ashti Tahsil in sub-division Patoda, District Beed instead of

constituting its separate sub-division, namely, "Ashti" with headquarter

at Ashti, District Beed.

. It has been asserted that in view of geographical situation,

population of respective tahsil areas and availability of conveyance

facility, area of Shirur Kasar tahsil is required to be included in sub-

division "Beed". Moreover, there must be a separate sub-division for

"Ashti" tahsil area with its headquarter at "Ashti" only. The petitioners

blamed that the impugned notification is politically motivated,

arbitrary, unfair, irrational and not as per the provisions of law. Hence,

petitioners requested to upset and quash the impugned notification by

exercising jurisdiction amenable under Article 226 of the Constitution of

India.

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3. We have heard learned counsel for respective parties. Mr.

Salunke, learned counsel for petitioner vehemently submitted that

impugned notification dated 26-07-2013 is arbitrary, irrational and

politically motivated. He explained that in a draft notification, area of

tahsil Shirur Kasar is shown as part of sub-division Gevrai with its

headquarter at Gevrai District Beed. But, in the final notification dated

26-07-2013 area of tahsil Shirur Kasar is shown included in Patoda

sub-division, District Beed. The respondent failed to comply with the

mandatory provisions prescribed under section 4 sub-section (4) of the

Maharashtra Land Revenue Code read with section 24 of the

Maharashtra General Clauses Act. According to learned counsel, non

compliance of these provisions invalidated the impugned notification

being irrational and without giving an opportunity for

objection/suggestion to the petitioners and others. There were vital

changes made in the draft notification dated 27-06-2012 and

eventually, the final notification came to be published on behalf of

respondent-State on 26-07-2013. The objections or suggestions were

not called for the proposal of shifting the area of Shirur Kasar tahsil

from Gevrai Sub-division to "Patoda" sub-division, District Beed. The

petitioner suggested to include area of Shirur Kasar Tahsil in "Beed"

sub-division. But, the respondents without previous notification

proceeded to include area of Shirur Kasar tahsil in "Patoda" sub-

division. Therefore, learned counsel Mr. Salunke requested to set aside

and quash the impugned notification to the extent of inclusion of area

of Shirur Kasar tashil in Patoda sub-division.

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4. Mr. Tungar, learned counsel for petitioner in writ petition No.

6362 of 2013 stepped into the shoe of learned counsel Mr. Salunke in

regard to legal objections and non issuance of previous notification

prior to publication of final notification under section 4 of the

Maharashtra Land Revenue Code. Mr. Tungar, learned counsel

submitted that draft notification dated 26-06-2012 indicate area of

Ashti and Patoda taluqa in Ashti sub-division with its headquarter at

Ashti District Beed. But, in the final notification dated 26-07-2013 area

of Ashti taluqa is shown as part of "Patoda" sub-division having

headquarter at "Patoda" district Beed. The area of Shirur Kasar is also

shown in the sub-division "Patoda." There was no previous notification

calling objections, opinions in regard to sub-division "Patoda" instead of

"Ashti" and inclusion of area of Shirur Kasar Tahsil in Patoda sub-

division. There was violation of principles of natural justice. According

to learned counsel Mr. Tungar, in view of geographical situation,

population of Ashti tahsil area and availability of conveyance facility, it

would be justifiable to notify the area of Ashti taluqa as separate sub-

division "Ashti" having its headquarter at Ashti only. But, respondent -

State did not take into consideration all these factual aspect and

unilaterally published the impugned notification which is arbitrary and

bad in eye of law. At last, both learned counsel strenuously urged to

set aside and quash the impugned notification. Learned counsel for

petitioner placed reliance on the judgment of Division Bench of this

court in Public Interest Litigation No. 72 of 2013 Dr. Avinash Ramkrishna

Kashiwar and others Vs. State of Maharashtra as well as Prashant Babusaheb

Ghiramkar Vs. The State of Maharashtra and others reported in 2013(6)

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Mh.L.J. 703.

5. The learned Assistant Government Pleader Mrs. Gondhalekar

vociferously opposed the contentions put forth on behalf of petitioners

and submitted that the authorities of respondent - State has

considered the geographical conditions, population of the particular

tahsil area, conveyance facility etc. prior to final publication of

notification dated 26-07-2013. All procedural formalities are complied

with, after taking into consideration the objections and suggestions

raised prior to final notification. It is also contended that the

establishment of revenue sub-division is legislative function of the

Government and the rules of natural justice has no application to the

present case. It is the discretion of legislative authority to appreciate

suggestions and objections and the decision taken by the respondent

cannot be agitated by invoking remedy under writ jurisdiction. Hence,

learned Assistant Government Pleader requested not to nod in favour of

petitioners and to dismiss the petitions.

6. Intense scrutiny of the relevant documents produced on record

in the light of argument advanced on behalf of both sides, reveals that

the entire edifice of the matter in issue rests on the legal facet in

regard to compliance of provisions of section 4 sub-section (4) of the

Maharashtra Land Revenue Code read with section 24 of the

Maharashtra General Clauses Act.

7. The provisions of section 3 of the Maharashtra Land Revenue

Code contemplates divisions of the State into different revenue areas

consisting of one or more districts (including the City of Bombay) and

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each district may consist of one or more sub-divisions and each sub-

division may consist of one or more talukas and each taluka may

consist of certain villages. Section 4 of Maharashtra Land Revenue

Code provides powers to the State Government to constitute revenue

area by publication of notification in the official gazette. However, it is

stipulated that State Government shall hear objection and suggestions

from the public at large before any final notification constituting

revenue sub-divisions. It would be advantageous to refer to section 4

of the Maharashtra Land Revenue Code which reads as under :-

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 village which constitute a sub-division;

                      (iv)     the village which constitutes a taluka;

                      (v)      the local area which constitutes a village; and





                      (vi)     after 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 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

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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, 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, district,s 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 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. Aforesaid provisions of sub-section (4) of section 4 of

Maharashtra Land Revenue Code manifestly demonstrate that every

notification or order made under section 4 of Maharashtra Land

Revenue Code shall be subject to previous publication. It has also

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stipulated that the previous publication must be in consonance with the

section 24 of the General Clauses Act. The provisions of section 24 of

the Maharashtra General Clauses Act is made applicable to such

previous publication. It would be necessary to reproduce section 24 of

the Maharashtra General Clauses Act :-

"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;

(b) 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;

(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

10 WP-6362.13+1

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

ig rule or by-law 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."

9. The conjoint reading of the provisions of section 4 sub-section

(4) of Maharashtra Land Revenue Code and Section 24 of the

Maharashtra General Clauses Act categorically reflects that the

legislature has provided power to the State Government for

constitution of revenue area subject to previous notification. It has

been stipulated that prior to such making rules or bye-laws there

should be publication of the draft of proposed rules or bye-laws for

information of the persons likely to be affected thereby. It makes clear

that legislature itself mandate for prior publication and notice of the

proposed rules or bye-laws to call for objections and suggestions to

consider it by the State Government before exercising its power of

making rule or bye-laws, if any.

                                             11                        WP-6362.13+1


     10.      Admittedly, in both these petitions, we      are dealing with the




                                                                           

legislative function of the State Government. The procedure as

envisaged under section 4 sub-section (4) of Maharashtra Land

Revenue Code read with section 24 of the Maharashtra General Clauses

Act appear mandatory in nature. It contemplates effective and

substantial compliance of the requirements before making any rules or

bye-laws by the State Government. It is not put into controversy that

the State Government is empowered to notify area of the revenue sub-

division by discharging the legislative functions under section 4 of the

Maharashtra Land Revenue Code. It has been argued that it is the

discretion of the State Government to notify revenue sub-divisions as

well as its headquarter after considering the objections and suggestions

and the validity of such notification cannot be agitated by resorting to

writ jurisdiction under Article 226 of the Constitution of India. The rule

of natural justice is not required to be observed before publication of

such final notification in the petitions.

11. Taking into consideration nature of the allegation nurtured on

behalf of petitioners, it is imperative to appreciate the scope of judicial

review in the matter of exercise of legislative power by the State

Government and thereby application of principles of natural justice.

The Division bench of this court, bench at Nagpur had dealt with the

similar issue in Public Interest Litigation No. 72 of 2013 Dr. Avinash

Ramkrishna Kashiwar and others Vs. State of Maharashtra and observed in

paragraphs No. 12 and 13 as under :

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"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 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

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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."

12. In view of judgment of the Apex Court mentioned above, we are

in respectful agreement with observations of the Division Bench of this

Court delivered at Nagpur as referred supra. It is lucid that powers

conferred to make sub-ordinate legislature must be exercised in

conformity with express or implied limitations contained empowering

the State. Therefore, exercise of the legislative power derived from

statute would be assailed on the ground that it is in conflict with

governing statute or that there has been non-consideration of essential

facts and that it is manifestly arbitrary. It would be reiterated that

provision of section 4(4) of Maharashtra Land Revenue Code itself

provides legislative power to the State Government for constitution of

revenue area. However, limitations are imposed on it by previous

publication of draft notification for information to the persons likely to

be affected by the same to facilitate them to ventilate their grievances

for rederessal or put suggestions for constitution of revenue sub-

division.

13. In the case of State of Orissa Vs. Sridhar Kumar Mallik and others

reported in (1985)3 Supreme Court cases 697, the Apex Court while

considering the scope of section 417-A(1-A) of the Orissa Municipal

Act, 1950 for constitution of Municipalities held that the proposed

proclamation should be precise,clear and should indicate with sufficient

accuracy the area intended to be notified. It has also been observed

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that the legislature attaches serious importance to eliciting the opinion

of the resident of the area who will be affected by its constitution as

notified under section 417-A(1-A) of the Orissa Municipal Act, 1950.

The Apex Court further enunciated that unless these requisites are

complied with it will not be possible for the residents to properly avail

of the rights conferred upon them by statute to make their objections

to the proposal of the State Government. In short, if statute provides

remedy to the people of the area likely to be affected by notification to

avail right for opinion, it is obligatory on the part of the State

Government to comply with all these requisites scrupulously prior to

finality of the proclamation.

14. Moreover, provision of section 24 of the Maharashtra General

Clauses Act prescribes about opportunity to the persons likely to be

affected by proposed rules or bye-laws, prior to its finality. The Apex

Court in the case of Municipal Corporation Bhopal, M.P. vs. Misbahul Hasan

and others reported in (1972)1 Supreme Court Cases, 696 has appreciated the

scope of provisions of section 24 of the M.P. General Clauses Act 1957,

which is pari materia with section 24 of the Maharashtra General

Clauses Act. It has been enunciated in paragraphs No. 13 of the

Judgment that :

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

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mandatory procedure was not shown to have been

complied with here."

15. It is evident from the aforesaid settled rule of law that

legislative function of constitution of revenue area by the State

Government should be in consonance with principles of justice and fair

play. It is also stipulated that constitution of revenue sub-division

should be subject to previous publication of draft notification to enable

the persons likely to be affected by the notification to take steps as

may be open to them. These requirements are not an empty

formalities, but it should be scrupulously complied with, and failure to

which, entire legislative act would run nugatory and invalid one.

16. In the instant petitions, there was publication of draft

notification, in which area of Shirur Kasar tahsil was shown in the sub-

division "Gevrai" with its headquarter at Gevrai only. Moreover, area of

tahsil Ashti was shown as part of sub-division "Ashti" with its

headquarter at Ashti. But, later on, in the notification dated

26-07-2013 the State Government has declared the area of Shirur

Kasar tahsil as part of "Patoda" sub-division with headquarter at Patoda

as well as area of Ashti tahsil is shown in the "Patoda" sub-division

having headquarter at Patoda. Obviously, it seems that there was no

opportunity to the persons of the area of Shirur Kasar to ventilate their

grievances or to give suggestion in regard to inclusion of area of Shirur

Kasar tahsil in Patoda sub-division. Similarly, residents of Ashti tahsil

also did not get any opportunity to raise objections/suggestion for

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decision of inclusion of Ashti area in "Patoda" sub-division. Admittedly,

pursuant to the draft notification published on 26-06-2012, objections/

suggestions were invited for proposals to include Shirur Kasar area in

Gevrai Sub-division and not in Patoda sub-divisions as well as

objections/ suggestions were called for declaration of Ashti tahsil area

being part of Ashti sub-division itself. Therefore, the resident of Shirur

Kasar tashil or Ashti tahsil could not exercise their right in proper

manner as conferred upon them by the statute.

17.

It would be reiterated that provisions of previous publication/draft

notification would not be an empty formalities. But, opportunity is

required to be given to the persons affected by such notification to

ventilate their grievances or to give suggestion for redressal. Therefore,

the impugned notification dated 26-07-2013 to the extent of inclusion

of Shirur Kasar tahsil and Ashti tahsil in Patoda sub-division with its

headquarter at Patoda appears to be unilateral, arbitrary and against

purports of the Act. Non-compliance of statutory provisions definitely

render the notification invalid. We are of the considered opinion that

the impugned notification is inconsistent with the provisions of section

4(4) of the Maharashtra Land Revenue Code read with section 24 of the

Maharashtra General Clauses Act. There was no compliance of the

provisions mandatory in nature and violation of the same would render

notification invalid, unsustainable and not within the purview of law.

18. The learned Assistant Government Pleader harped on the

circumstances that the powers of State Government to constitute

revenue sub-divisions and its headquarter are legislative powers. It is a

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policy decision and the same cannot be interfered by exercising

discretion under Article 226 of the Constitution of India. The factual

score do not permit to digest the contention put forth on behalf of

learned Assistant Government Pleader, which does not appear to be

attractive and sustainable one. We have already mentioned that any

breach of statute or non compliance of statutory provision render the

decision invalided. It is the rule of law that while exercising the powers

in the nature of sub-ordinate legislature, it must be in consonance with

the provisions laid down under statute and any sort of departure would

nullify the entire sub-ordinate legislation. Therefore, mandate of law is

required to be followed scrupulously.

19. In the matter in hand, statute contemplates publication of draft

notification to facilitate the persons of the area likely to be affected by

notification to enable them to avail the rights as conferred upon them

by the statute. But no such opportunity has been provided to the

residents of Shirur Kasar and Ashti tahsils area for redressal. But

instead, the State Government proceeded to include these tahsil areas

in the Patoda sub-division unilaterally, which is the subject alien to the

draft notification. Obviously, departure from statutory provisions

rendered the notifications nugatory and invalid one. In regard to other

claim on factual aspects, there would not be any propriety to go deep

to examine other ramification of factual score. Admittedly, while

exercising powers of judicial review under Article 226 of the

Constitution of India, we cannot sit in appeal over the decision taken

by the State Government.

18 WP-6362.13+1

20. In the result, we arrived at the conclusion that impugned

notification dated 26-07-2013 suffers from legal infirmities. It is

unsustainable, arbitrary and not within purview of law to the extent of

inclusion of area of tahsils of Shirur Kasar and Ashti in sub-division

Patoda with its headquarter at Patoda.

21. Therefore, the impugned notification is hereby upset, quashed

and struck-down to the extent of inclusion of area of tahsils of Shirur

Kasar and Ashti in sub-division Patoda with its headquarter at Patoda.

The rule is made absolute in above terms. There shall be no order as

to costs.

                      Sd/-                                 Sd/-

           [ K. K. SONAWANE, J.]              [S. V. GANGAPURWALA, J.]
   



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