Bombay High Court
The Grampanchayat Kharghar And ... vs The State Of Maharashtra And Ors on 27 October, 2016
Bench: Ranjit More
WP 10175.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10175 OF 2016
1. The Grampanchayat Kharghar, )
Having its office at Sector 13, )
Kharghar, Navi Mumbai. )
2. United Kharghar Action committee )
having its office at Row House, E6, )
Sector 12, Kharghar, Navi Mumbai ) .....Petitioners.
versus
1. The State of Maharashtra )
Through the Urban Development )
Department, Mantralaya, Mumbai. )
2. The Hon'ble Chief Minister, )
Government of Maharashtra. ig )
3. The District Collector, Raigad, )
Having its office at District Collector, )
Alibaug, Raigad. )
4. The Divisional Commissioner, )
Konkan Division, Konkan Bhavan, )
CBD, Belapur. )
5. CIDCO, CIDCO Bhavan, )
CBD, Belapur, Navi Mumbai. )
6. The Panvel Municipal Council, )
Through its Chief Officer, Taluka, )
Panvel, District Raigad. ) .....Respondents
along with
CIVIL APPLICATION NO.2465 OF 2016
IN
WRIT PETITION NO.10175 OF 2016
Mr. Shrinand Mukund Patwardhan )
Age - 55 years, Occ.Business )
R/o.Samrudha Mukund Apartment, )
671/A, Shivaji Road, Panvel, )
Taluka- Panvel, District - Raigad 410206. ) ....Applicant/Intervenor
In the matter between :
The Grampanchayat Khargar and anr. ....Petitioners
Versus
The State of Maharashtra and ors. .....Respondents
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Mr. Prasad Sudhir Dani, senior counsel with Mrs. Pooja Khandeparkar
i/b. Mr. Ruturaj Pradip Pawar, advocate for the petitioners.
Mr. A. Y. Sakhare, senior counsel along with Mr. A. B. Vagyani, G.P along
with Mrs. M. P. Thakur, Ms. Tintina Hazarika, AGP for the State.
Mr. A. M. Kulkarni, advocate for CIDCO.
Mr. S. V. Gavand, advocate for Panvel Municipal Council.
Mr. S. B. Shetye, advocate for the State Election Commission.
Mr. Ashutosh A. Khumbhakoni, senior counsel i/b.Mr. Avinash H.
Fatangare, advocate for the intervenor.
CORAM : RANJIT MORE &
ANUJA PRABHUDESSAI, JJ.
DATE OF RESERVING : 3rd OCTOBER, 2016.
DATE OF PRONOUNCEMENT : 27th OCTOBER, 2016.
Oral Judgment : (Per Ranjit More, J.)
Rule. Rule is made returnable forthwith and the petition is
heard finally by consent.
2 By this petition filed under Article 226 of the Constitution of
India, the petitioners are challenging various notifications issued under
Maharashtra Municipal Corporations Act 1949 (for short "the
Corporations Act") , Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships Act 1965 (for short "the Nagar Panchayats
Act"), Maharashtra Zilla Parishads and Panchayat Samitis Act 1961(for
short "the Panchayat Samitis Act") and Maharashtra Village Panchayats
Act 1961 (for short "Village Panchayats Act"), whereunder the municipal
corporation of the city of Panvel is formed from the entire Panvel
Municipal Council and 29 revenue villages.
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3. We have heard Mr. Dani, learned senior counsel for the
petitioners, Mr. Sakhare, learned senior counsel along with Mr. Vagyani,
learned Government Pleader for the State of Maharashtra. We have also
heard Mr. Kumbhakoni, learned senior for the intervenor, since the
petitioners have expressed no objection for intervention of the applicant
in the above petition.
4. Mr. Dani, learned senior counsel for the petitioners, seeks to
challenge the impugned notification forming the Panvel Municipal
Corporation on the following grounds :-
1. The notification as contemplated under Article 243Q
of the Constitution of India declaring the proposed
area as larger urban area by taking into consideration
the factors specified in sub-clause 2 of the Article 243Q
is sine qua non for the purposes of setting up a
Corporation for any area which is hitherto not an
urban area.
2. Article 243Q(2) mandates the personal satisfaction
of the Governor in respect of fulfillment of the factors
specified in sub-clause 2 of Article 243Q.
3. The notification contemplated under Section 4(2) of
the Village Panchayats Act thereby ceasing the existing
villages declared under Article 243(g) of the
Constitution of India and which are included in the
Panvel Municipal Corporation has not been issued
after effective and/or meaningful consultation with the
Gram Sabha, Standing Committee and Panchayats
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concerned before issuance of final notification under
Section 3(2) of the Corporations Act.
4. Article 243(g) of the Constitution of India also
mandates a notification to be issued by the Governor
upon his personal satisfaction.
5. Mr. Dani, learned senior counsel, elaborated his submission
by inviting our attention to the provisions of the Constitution of India
and the relevant statutes, and submitted that the powers of the State
Government to declare any area as a larger urban area are restricted to
such areas which are urban areas. In other words, under Section 3(2) of
the Corporations Act, the Government has power to declare a larger
urban area only in respect of an already existing urban area. He relied
upon the decision of a Division Bench of this Court in Talegaon Village
Panchayat versus State of Maharashtra and anr. (2009) 6 Mh.LJ. 224
and another decision of another Division Bench in the case of Ashok
Khetoliya versus the State of Rajasthan and anr. 2015 SCC Online
Raj 6408. Mr. Dani further submitted that Article 243Q(2) of the
Constitution of India mandates personal satisfaction of the Governor in
respect of the fulfillment of the factors specified therein. Thus, before
formation of the Municipal Corporation, the notification of the Governor
is a must, which is lacking in the present case. Mr. Dani, in this
regard, relied upon a decision in the case of State of of Madhya
Pradesh versus Abhinesh Mahore (2015) 2 MP LJ 39. Regarding
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notification under Section 4(2) of the Village Panchayats Act is
concerned, he submitted that firstly the same is issued without effective
and/or meaningful consultation of the Gram Sabha, Standing Committee
and the Panchayat concerned and that too only after final notification
under Section 3(2) of the Corporations Act. He also contended that the
notification under Section 4(2) of the Village Panchayats Act is again
required to be issued by the Governor upon his personal satisfaction in
the light of the provisions of Article 243Q(2) of the Constitution of India.
6.
Mr. Sakhare, learned senior counsel and Mr. Vagyani, learned
GP vehemently opposed the petition. They submitted that on
23rd November, 2015, a study group/committee under the Chairmanship
of Divisional Commissioner, Konkan Division was formed to study the
feasibility of the proposed Panvel Municipal Corporation. On 6 th May,
2016, a report of the said committee was received by the State
Government. On 16th May, 2016, a draft notification for calling
suggestions and objections within one month from the date of
notification regarding Government's intention to form Panvel Municipal
Corporation comprising of existing area of Panvel Municipal Council and
surrounding 68 revenue villages was published. By 15 th June, 2016,
3936 suggestions and objections in response to the said draft
notification were received by the Collector, Raigad. The Divisional
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Commissioner heard the suggestions and objections received in
response to the draft notification dated 16 th May, 2016 and, thereafter,
sent his report to the State Government which was received by it on
29th July, 2016. Meanwhile, the State Election Commission prohibited the
State Government from altering the boundaries of the existing Municipal
Councils and Municipal Corporations. The intervenor, thereafter, filed
writ petition No.9257 of 2016 seeking direction to the Government to
take decision in respect of declaration of a larger urban area of the
Municipal Corporation of the City of Panvel in pursuance of the draft
notification dated 16th May, 2016. This Court, by an order dated
23rd August, 2016, directed the Government to take necessary decision
as expeditiously as possible and, in any case, within a period of one
week from the date of the order and complete the formalities, if any,
thereafter within a period of two weeks. On 29 th August, 2016, the CEO,
ZP, Raigad, directed to send report regarding resolutions of Village
Panchayat and Gram Sabha of the villages to be included into Panvel
Municipal Corporation and Standing Committee of the Raigad Zilla
Parishad regarding their inclusion in the proposed area of the Panvel
Municipal Corporation. Meanwhile, between 7 th September, 2016 to
15th September, 2016, 23 Gram Panchayats and Gram Sabhas, in
pursuance of the notification dated 16 th May, 2016, held meetings and
passed resolutions between 7th September, 2016 to 15th September,
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2016. On 16th September, 2016, the Block Development Officer,
Panchayat Samiti , Panvel, submitted report regarding the resolutions of
these Gram Panchayats and Gram Sabhas to the CEO, Zilla Parishad,
Raigad. The meeting of the Standing Committee of the Zilla Parishad,
Raigad was scheduled on 23rd September, 2016 to discuss the proposal
of formation of Panvel Municipal Corporation. However, for want of
quorum, it was adjourned to 27 th September, 2016 and rescheduled on
28th September, 2016. On 28th September, 2016, the Standing Committee
of the Zilla Parishad, Raigad, passed a resolution and submitted a report
to the State Government on the same day. The Government considered
this report and thereafter, took a decision to include 29 villages in the
proposed area of Panvel Municipal Corporation and, accordingly,
notification to that effect was issued under Section 3(2) of the
Corporations Act and Section 6(1)(a) of the Nagar Panchayats Act. Mr.
Sakhare,learned senior counsel and Mr.Vagyani, learned GP further
submitted that the decision to form Panvel Municipal Corporation by
issuing the impugned notification is taken after complying with the
provisions of the relevant statutes. They submitted that though the
notification under Section 3(2) of the Corporations Act was issued on 26 th
September, 2016, the same was to take effect from 1 st October, 2016,
and prior to that, a notification dated 29 th September, 2016 under
Section 4(2) of the Village Panchayats Act was issued. They submitted
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that before issuance of the notification under Section 4(2) of the Village
Panchayats Act, the Gram Sabha, Standing Committee and Panchayats of
the concerned villages were consulted. Lastly, they submitted that the
decision of the Government to form Panvel Municipal Corporation is a
conscious decision which does not warrant interference of this Court.
7. Mr. Kumbhakoni, learned senior counsel for the intervenor,
also opposed the petition. He took us through various provisions of the
Constitution of India and relevant statutes and
ig submitted that the
proposition of the petitioners that only Governor can constitute a larger
urban area is thoroughly misplaced. He submitted that there is no
necessity to issue notification by the Governor under Section 4(2) of the
Village Panchayats Act and, it would suffice, if the same is issued in the
name of the Governor. Regarding contention of the petitioners that only
an urban area can be converted into a larger urban area, Mr.
Kumbhakoni submitted that there is no bar for issuing notification for
converting any area into a larger urban area. Mr. Kumbhakoni, in
support of his submission, heavily relied upon a decision of the Apex
Court in the State of Uttar Pradesh vs. Pradhan Sangh Shetre Samiti,
AIR 1955 SC 1512 and a decision of this Court in Ashok Ganpat Jadhav
and anr. vs. State Election Commission, Mumbaier, 2000 (4)
Mah.LJ.150.
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8. In order to appreciate the controversy raised in the petition, it
is necessary to make reference to the provisions of the Schedule VII, List
II, Entry 5 of the Constitution of India which reads thus:
"5. Local Government, that is to say, the constitution
and powers of municipal corporations, improvement
trusts, district boards, mining settlement authorities
and other local authorities for the purpose of local self-
Government or village administration."
In terms of this Entry, the legislative competence for making
law relating to constitution of Local Self-Government like municipal
corporations is of the State Legislature. Constitutionally, it is not
permissible for the Parliament to enact law that regulates in any
manner the constitution of the municipal corporations. By
73rd amendment to the Constitution of India, the Parliament inserted
Part IX and IXA in the Constitution which deals with the Panchayats and
Municipalities respectively. However, insertion of these parts in the
Constitution was carried out without amending the aforesaid List II of
the 7th Schedule and taking away the powers of the State Legislature to
enact law in regard to constitution of the Municipal Corporations. This
amendment in the Constitution is aimed to provide guidelines for
enacting law relating to Local Self-Government. Consequently, despite
insertion of Part IX and IXA in the Constitution, it is the State Legislature,
Shubhada S Kadam 9/29
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which has the sole legislative competence, to the exclusion of the
Parliament to make laws in that regard.
9. In view of the provisions of Article 243N in Part IX and Article
243ZF in Part IXA, the State Laws were required to be amended so as
to bring the Local Laws in conformity with the constitutional provisions
that were newly added. Accordingly, every State Legislature has
amended its own State Laws dealing with the said subject. It is pertinent
to note that neither the Parent Statutes nor the subsequent
amendments made therein by every State Legislature are similar, much
less identical, to each other. More particularly, the amendments carried
out by the respective State Legislature of different States in the country,
to bring their respective State Laws dealing with the said subject in tune
with the provisions of the said two parts of the Constitution, are
distinctly different from each other.
10. In the light of the discussion made herein above, we have to
consider the petitioners' submission that the notification declaring a
larger urban area must be issued by the Governor himself under Article
243-Q of the Constitution of India after taking into consideration the
factors mentioned in sub-clause (2) thereof. In order to deal with the
submission, it would be appropriate to quote the provisions of Article
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243-Q of Part IX-A of the Constitution of India and Section 3 of the
Corporations Act.
Article 243-Q of the Constitution of India reads as under :
" 243-Q. Constitution of Municipalities- (1) There shall
be constituted in every State,--
(a) a Nagar Panchayat (by whatever name called) for a
transitional area, that is to say, an area in transition from
a rural area to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area,
in accordance with the provisions of this Part:
Provided that a Municipality under this clause may not
be constituted in such urban area or part thereof as the
Governor may, having regard to the size of the area and
the municipal services being provided or proposed to be
provided by an industrial establishment in that area and
such other factors as he may deem fit, by public
notification, specify to be an industrial township.
(2) In this article, "a transitional area", "a smaller urban
area" or "a larger urban area" means such area as the
Governor may, having regard to the population of the
area, the density of the population therein, the revenue
generated for local administration, the percentage of
employment in non-agricultural activities, the economic
importance or such other factors as he may deem fit,
specify by public notification for the purposes of this
Part."
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Thus, Article 243-Q contemplates existence of two kinds of
area viz. a rural area and an urban area. Urban area is further classified
into a smaller urban area and a larger urban area. The 3 rd category is
also contemplated viz. a transitional area. Article 243-Q gives power to
the Governor to declare any area as a transitional area, a smaller urban
area or a larger urban area. The factors to be taken into consideration
by the Governor are also provided in the said Article.
Section 3 of the Corporations Act reads as under
ig :
"[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 (1) 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
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Constitution of India shall, on and from the 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.
(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 urban
area with a population of not less than three lakhs 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 the name of the ''
Municipal Corporation of the City of .............".]
(3 ) [(a ) [Subject to the provision of 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, licences,
permissions, rules, by-laws or forms made, issued,
imposed or granted under this Act or any other law,
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which are for the time being in force in the larger urban
area shall, notwithstanding anything contained in any
other law for the time being in force but save as
otherwise provided in section 129A or any other
provision of this Act, apply to and be in force in the
additional area also from the date that area is included in
the City].
(4 ) The power to issue a notification under this section
shall be subject to the conditions of previous publication.
[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 Panchayats 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.]"
This provision makes it clear that sub-section (1) of Section 3
of the Corporations Act deals with a situation where the Governor has
issued an appropriate notification under Article 243-Q(2) of the
Constitution of India and declares a larger urban area covered by such
notification, if any, as a "deemed to be duly constituted municipal
corporation". From the language of this Section, it is clear that for such "
a deemed" constitution of a municipal corporation, the State
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Government is not required to take any steps towards it constitution
unlike the rest of the provisions of Section 3.
Sub-section (2) of Section 3 starts with the words " Save as
provided in sub-section (1)". These words indicate that the said
provision is distinct and independent provision from the sub-section (1)
which enables constitution of a corporation. The reading of this sub-
section makes it unequivocally clear that the same empowers the State
Government and not the Governor to constitute a corporation. While
exercising this power, no doubt, the State Government must have
regard to all the factors mentioned in clause (2) of Article 243-Q, which
the Governor is required to take into consideration, while issuing a
notification under the said constitutional provisions which results into
constituting "a deemed" municipal corporation" under sub-section 1 of
Section 3 of the Corporations Act.
Similarly language of sub-section 2A and other sub-sections of
Section 3 makes it abundantly clear that the State Government has the
statutory power, authority and jurisdiction to constitute a corporation,
independent of and apart from the constitutional power, authority and
jurisdiction of the Governor, to issue a notification which results into
constitution of " a deemed" municipal corporation".
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Section 2(30A) of Corporations Act defines "a larger urban
area" as the area specified as larger urban area in the notification
issued under sub-clause (2) of Article 243-Q of the Constitution of India
or under "the Act". This definition of the term "larger urban area" also
lends support to the proposition that such an area can be constituted by
the Governor under Article 243-Q as well as the State Government under
the local law.
It is thus clear that without there being any notification
under Article 243Q(2) by the Governor, it is open in law for the State
Government to constitute a municipal corporation. In that view of the
matter, the contention of the petitioners to the effect that only the
Governor can constitute a larger urban area is misplaced and liable to be
rejected.
11. Mr. Dani, learned senior counsel submitted that the power of
the State Government to declare any area as a larger urban area is
restricted to such areas which is an urban area, though attractive, on
deep scrutiny of the provisions of Sections 3(2), 3(2A) and (3) of the
Corporations Act , is liable to be rejected. The Village Panchayats Act or
the relevant laws that deal with municipal councils or municipal
corporations do not define rural area or urban area. In the absence of
such definition, there is no statutory bar or prohibition on the State
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Government from issuing notification from converting any local area of
the Panchayat into a Corporation provided it has the minimum required
population i.e. population not less than 3 lacs. That apart, the sub-
section (2) of Section 3 of the Corporations Act deals with the powers of
the State Government to constitute a larger urban area. Sub-section (3)
deals with the powers of the State Government to alter the limits of the
larger urban area constituted 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. Under sub-section (3), the limits of the larger urban
area can be altered by including any area or excluding any area from
larger urban area as specified in the notification. Thus, this sub-section
does not put an embargo on the power of the State Government to
include only an urban area in a larger urban area. In other words, in
exercise of powers under sub-section 3(a), the State Government can
alter the limits of a larger urban area by including any local area.
Therefore, after constitution of a larger urban area or corporation, if
local area of panchayat can be included so as to alter the limits of such
larger urban area or corporation, there is no reason why such area
cannot be included in larger urban area at the time of its formation
under sub-section 2 of Section 3 of the Corporations Act. We, therefore,
do not find any merit in the submission of Mr. Dani, learned senior
counsel in this regard.
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12. The decision of the Division Bench of this Court in Talegaon
Village Panchayat (supra) and the decision of Rajasthan High Court in
Ashok Khetoliya (supra) relied upon by Mr. Dani, will not come to the
petitioners' rescue.
In the former case, Talegaon Village Panchayat was included
in the Igatpuri Municipal Council by the notification issued in the year
1998. The notice inviting objections under Section 3(3) of the Nagar
Panchayats Act was issued in the year 1991. The objections were
considered and, thereafter, impugned notification including Talegaon
Village Panchayat in Igatpuri Muncipal Council was issued in 1998. The
submission of the petitioner therein was that no proclamation of the
Governor as required under Article 243-Q was issued and, therefore, the
impugned notification was bad. The Division Bench of this Court held
that Article 243-Q would apply only when new municipal corporation,
municipal council or nagar panchayat is to be established.
In the latter case, the challenge was to the notification issued
by the State, whereby Gram Panchayat Roopbas, District Bharatpur was
converted into Municipal Board. The Division Bench found that no
public notification as contemplated under Article 243-Q of the
Constitution of India was issued specifying Gram Panchayat Roopbas as
"a transitional area". This decision was taken in the light of the
provisions of Section 2(lxv) of the Rajasthan Municipalities Act, 2009,
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which defines "a transitional area", "a smaller urban area" or "a larger
urban area" to mean an area specified under Article 243Q of the
Constitution of India. This judgment has no application to the facts and
circumstances of the present case in the light of the provisions of
Section 2(30A) of the Corporations Act, whereunder the term "a larger
urban area" is defined as the area specified as larger urban area under
Artilce 243-(Q)(2) of the Constitution of India or under "the Act".
13. This takes us to next submission of Mr. Dani that the
impugned notification under Section4(2) of the Village Panchayats Act is
required to be issued in the like manner as contemplated under Section
4 (1) of the Village Panchayats Act and Article 243(g) of the Constitution
of India and, therefore, the State Government has no power to issue
such notification and it is required to be issued by the Governor under
Article 243 (g) of the Constitution of India. Mr. Dani, in support of this
proposition, strongly relied upon the decision of the Madhya Pradesh
High Court in the State of Madhya Pradesh v.Abhinesh Mahore
(supra). Section 4 of the Village Panchayats Act deals with declaration of
village, which reads as under :
"S.4. Declaration of village.-
(1) Every village specified in the notification issued under
clause (g) of Article 243 of the Constitution of India shall
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be known by the name of that village specified in that
notification.
Provided that, where a group of revenue villages or
hamlets or other such administrative unit or part thereof
is (specified in that notification) to be a village, the village
shall be known by the name of the revenue village,
hamlet or as the case may be, administrative unit or part
thereof, having the largest population.
(2) Where the circumstances so require to include or
exclude any local area from the local area of a village to
or alter the limits of a village or that a local area shall
cease to be a village, then the notification
the like manner after consultation with the Standing
issued in
Committee and the Gram Sabha and the Panchayat
concerned, at any time, may provide to --
(a) include within, or exclude from any village, any local
area or otherwise alter the limits of any village, or
(b) declare that any local area shall cease to be a village;
and thereupon the local area shall be so included or
excluded, or the limits of the village so altered, or, as the
case may be, the local area shall cease to be a village."
Under Article 243(g) of the Constitution of India, "village"
means a village specified by the Governor by public notification to be a
village for the purposes of this Part and includes a group of villages so
specified. Under sub-section (1) of Section 4 of the Village Panchayats
Act, every village specified in the notification issued under Article 243(g)
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of the Constitution of India shall be known by the name of that village
specified in that notification. Sub-section (2) of Section 4 deals with
inclusion or exclusion of any local area from the local area of a village or
to alter the local limits of a village or cessation of any local area to be a
village. In terms of these sub-sections, inclusion or exclusion of any
local area from a village or cessation of any local area to be a village can
be effected by issuing notification in the like manner after consultation
with the Standing Committee, Gram Sabha and the Panchayat
concerned.
It is true that in view of the provisions of Section 4(2) of the
Village Panchayats Act, a notification of cessation of a village is required
to be issued "in the like manner", meaning thereby, in the manner in
which a notification is required to be issued under sub-section (1) of
Section (4) i.e. under clause (g) of the Article 243 of the Constitution of
India. Nevertheless, it does not mean that such notification either under
sub-section (1) or sub-section (2) is required to be issued by the
Governor himself, merely because Article 243(g) of the Constitution uses
the phrase "specified by the Governor by public notification". This
proposition is supported by the decision of Apex Court in State of
Uttar Pradesh vs. Pradhan Sangh Shetre Samiti(supra). In this case,
one of the question which fell for consideration before the Apex Court
was the constitutional validity of Section 2(t) of the U.P. Panchayat Raj
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WP 10175.16
Act. This section defines "village" to mean any local area recorded as
village in the Revenue Record of the district in which it is situate and
includes any area which the State Government may, by general or
special order, declare to be a village for the purpose of the Act. The
constitutional validity of this section was challenged on the ground that
same is unconstitutional or contrary to Article 243(g) of the Constitution
of India. The Apex Court, in paragraph 9, held that the functions under
Article 243(g) are to be exercised by the Governor on the aid and advise
of his Council of Ministers. The Apex Court also held that the Governor
does not exercise executive functions individually or personally and the
executive action taken in the name of the Governor is the executive
action of the State and, therefore, function under Article 243(g) is to be
exercised by the Governor on the aid and advise of his Council of
Ministers. This decision of the Apex Court is followed by the Division
Bench of this Court in Ashok Ganpat Jadhav (supra).
14. In the present case, admittedly, the notification of cessation
of village which have been included in the newly constituted
Corporation has been issued in "the name of the Governor", though not
by the Governor himself and, therefore, in our considered view, it fully
complies with the statutory requirement, bringing to an end the
existence of all the villages covered under the newly formed Panvel
Municipal Corporation.
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15. A reference must be made to the decision of the Madhya
Pradesh High Court in the case of the State of Madhya Pradesh vs
Abhinesh Mahore (supra).. We have gone through the said decision.
In our opinion, this decision has no application to the facts and
circumstances of the present case. In this case, the Division Bench held
that the exercise of powers or discharge of function by the Governor in
the context of Article 243-Q which has been introduced by way of
(Seventy - Fourth Amendment) Act, 1992, is the function or discretion to
be exercised by the Governor falling under the second part of clause (1)
of Article 163 of the Constitution of India. This decision, in our
considered opinion, has no application to the facts and circumstances of
the present case, in the light of provisions of sub-section 2 of
Section 5-A of the M.P.Municipal Corporation Act, 1961. The question
which came for consideration before the Division Bench was whether
the powers of the Governor to consider the objections to be taken by
interested persons can be delegated to the Collector. The Division
Bench noted the provisions of sub-section 2 of Section 5-A of M.P.
Municipal Corporation Act, under which, the Collector after receiving the
objections in writing with regard to the intention to include or exclude
certain areas from the limits of Municipal areas, must place the same
before the Governor, who in turn, is expected to consider those
objections before taking any final decision as stated above. The
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WP 10175.16
provisions of Section 4(2) of the Maharashtra Village Panchayats Act and
the provisions of Section 5-A of the M.P. Municipal Corporation Act are
not similar and there is substantial difference between them and,
therefore, this decision is not applicable to the facts and circumstances
of the present case.
16. Let us consider the next challenge of Mr. Dani that the
notification to constitute a larger urban area is issued without effective
consultation of the Standing Committee, Gram Sabha and the
Panchayat. In our considered view, this submission is also liable to be
rejected.
The draft notification inviting objections for formation of a
larger urban area was issued on 16 th May, 2016, and thereafter from
7th September, 2016 to 15th September, 2016, several Gram Panchayats
and Gram Sabha held meetings and passed resolutions and submitted
the report to the Zilla Parishad through Panchayat Samiti. The Standing
Committee of Zilla Parishad thereafter convened meeting to discuss the
said subject on 16th September, 2016. However, this meeting was
adjourned for want of quorum initially to 27 th September, 2016 and
rescheduled on 28th September, 2016. On that day, the Standing
Committee passed a resolution and sent the same to the Government
on 28th September, 2016. The Government considered this resolution
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WP 10175.16
and took a decision to issue cessation notification under Section 4(2) of
the Village Panchayats Act in respect of 29 villages on 29 th September,
2016. It is true that prior to this, notification under Section 3(2) of the
Corporations Act declaring a larger urban area of Panvel Muncipal
Corporation was issued on 26th September, 2016. However, the same
was to take effect only on 1 st October, 2016 and prior to this,
on 29th September, 2016, a notification under Section 4(2) of the Village
Panchayats Act came to be issued. At this stage, a reference must be
made to the decision of the Apex Court in Uttar Pradesh vs. Pradhan
Sangh Shetre Samiti(supra) . In this decision, it is recognised that in
urgent matter, even a post decisional hearing is sufficient compliance
of the principle of natural justice viz. audi alteram partem. In the
present case, the notification dated 26 th September, 2016 under Section
3(2) of the Corporation Act was issued in view of urgency as the High
Court by passing the order dated 23 rd August, 2016, in writ petition
No.9257 of 2016, directed the Government to take decision
expeditiously.
17. Before parting with the judgment, we must deal with the
grievance of Mr. Shetye, learned counsel for the State Election
Commission that the State Government must take decision regarding
formation of a smaller urban area or a larger urban area, change of
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WP 10175.16
boundaries, expansion of the areas of the corporation/council and local
bodies in advance i.e. before six months prior to the expiry of the term
of the said bodies. Mr. Shetye submitted that the term of the Panvel
Municipal Council was due to expire on 22 nd December, 2016, and
therefore, in anticipation, the State Election Commission started process
of election of the new body of the said council in June-2016 and
formation of wards is already complete. He also submitted that the
election to the Panchayat Samitis and Zilla Parishad are to be held in
February, 2017 and, therefore, process in this regard was also started on
18th August, 2016.
18. We find much substance in the grievance of Mr. Shetye,
learned counsel for the State Election Commission. Part IX and IX A was
inserted in the constitution by virtue of (Seventy - Fourth) Amendment
Act, 1992. The object of introducing these provisions was that, in many
States, the local bodies were not working properly and timely elections
were not being held and the nominated bodies were continuing for long
periods. Elections had been irregular and many times unnecessarily
delayed or postponed and the elected bodies were superseded or
suspended without adequate justification at the whims and fancies of
the State authorities.
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WP 10175.16
19. Under Articles 243-K and 243-ZA of the Constitution of India,
which pertains to the elections of the panchayats and municipalities
respectively, the superintendence, direction and control of the
preparation of electoral rolls for, and the conduct of all elections is
vested in a State Election Commission. Articles 243-E and 243-U
mandates that the duration of every panchayat or, as the case may, the
municipality shall be for a period of 5 years from the date appointed for
its first meeting and no longer unless dissolved under any law for the
time being in force. Similar provisions are to be found in the relevant
statutes viz. Maharashtra Municipal Corporations Act 1949, Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Townships Act
1965, Maharashtra Zilla Parishads and Panchayat Samitis Act 1961 and
Maharashtra Village Panchayats Act 1961. Thus the duration of the
panchayat or municipality is fixed for five years from the date of its
first meeting and no longer. It is incumbent upon the Election
Commission and other authorities to carry out the mandate of the
Constitution and to see that a new panchayat or municipality is
constituted in time and elections to the panchayats or municipalities are
conducted before the expiry of its duration of five years as specified
under Articles 243-E and 243-U of the Constitution of India. The Apex
Court in Kishansing Tomar versus the Municipal Corporation of the
City of Ahmedabad and ors.(2006) 8 SCC 352 has held that the powers
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WP 10175.16
of the State Election Commission in respect of conduct of elections is no
less than that of the Election Commission of India in their respective
domains. It was also held that the State Election Commission are to
function independently of the State Governments concerned in the
matter of their powers of superintendence, direction and control of all
elections and preparation of electoral rolls for, and the conduct of, all
elections to the panchayats and municipalities.
20. So far as Panvel Municipal Council is concerned, taking the
constitutional mandate into consideration, the State Election
Commission started the process of election of new body in June, 2016,
as much as the term of that council was to come to an end on
22nd December, 2016. The State Election Commission accordingly
informed the Government by various letters between January to August
that the decision regarding formation of a smaller urban area or a larger
urban area, change of boundaries, expansion of the areas of the
corporation council and local bodies should be taken in advance.
Despite this, the notification to form a larger urban area of the Panvel
Municipal Corporation was taken by the notifications dated
26th September, 2016 and 29th September, 2016, under which the said
Corporation was to come into existence w.e.f. 1 st December, 2016. We
have already upheld the said notifications. However, we must note that
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WP 10175.16
the exercise undertaken by the State Election Commission for formation
of the wards for Panvel Municipal Council has rendered futile. In our
considered opinion, the Government must take decision regarding the
formation of a smaller urban area or a larger urban area, change of
boundaries, expansion of the areas of the corporation/council and local
bodies well in advance ie. at least six months prior to the expiry of the
term of such council/corporation, so as to avoid unnecessary exercise
and save public time and money. We hope and trust that, in future,
the Government will consider the above aspect and take appropriate
decision well in time.
21. In the light of the above discussion, we find that the petition
is devoid of any merits and the same is dismissed. Rule is discharged.
22. Civil Application No.2465 of 2016 accordingly stands
disposed.
(ANUJA PRABHUDESSAI, J.) [RANJIT MORE, J.]
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