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