Bombay High Court
Ujwal Govind Keskar And Anr vs State Of Maharastra And Ors on 21 August, 2023
Bench: Shri Arif Doctor
2023:BHC-AS:23855-DB
9 & 10-PIL-104 & 126-2023
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTERET LITIGATION NO. 104 OF 2023
Ranjeet Sampatrao Raskar & Ors. .. Petitioners
Versus
The State of Maharashtra & Ors. .. Respondents
WITH
PUBLIC INTERET LITIGATION NO. 126 OF 2023
Ujwal Govind Keskar & Ors. .. Petitioners
Versus
State of Maharashtra & Ors. .. Respondents
Mr. Pralhad Paranjape a/w Mr. Manish Kelkar for the
Petitioners in PIL No. 104/2023.
Mr. S. M. Gorwadkar, Senior Advocate i/by Mr. Ritvik Joshi for
the Petitioners in PIL No. 126/2023.
Mr. Abhijit P. Kulkarni for Respondent No. 4 - P.M.C. in PIL
104/2023 and for Respondent No. 2 - P.M.C. in PIL 126/2023.
Dr. Birendra B. Saraf, AG with Mr. P.P. Kakade, GP and Mr. M.
M. Pabale, AGP for Respondent No. 1, 2 and 3 in PIL
104/2023.
Dr. Birendra B. Saraf, AG with Mr. P.P. Kakade, GP and Mr. M.
M. Pabale, AGP with Mrs. R. A. Salunkhe, AGP for Respondent
No. 1, 3 and 4 in PIL 126/2023.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE: 21st AUGUST, 2023
9 & 10-PIL-104 & 126-2023
P.C.:
1. Heard Mr. Paranjape, learned advocate for petitioners in
PIL No. 104 of 2023, Mr. Gorwadkar, learned senior advocate
for petitioners in PIL No. 126 of 2023, Dr. Saraf, learned
Advocate General for the State of Maharashtra and Mr.
Kulkarni, learned advocate for the Pune Municipal Corporation.
2. These two Public Interest Litigation petitions primarily
challenge a notification dated 31st March, 2023 issued by the
Urban Development Department, State of Maharashtra, which
is referable to Section 3(3)(a) of the Maharashtra Municipal
Corporations Act, 1949 (hereinafter referred to as "the Act of
1949").
3. The arguments of the learned counsel for the petitioners,
assailing the impugned notification, revolve around the phrase
"after consultation with the Corporation" occurring in Section
3(3)(a) of the Act of 1949 as interpreted by the Division
Bench of this Court in Sandeep Pandurang Patil vs. The
State of Maharashtra & Ors. (PIL Stamp No. 5619 of
2020), wherein this Court has, after elaborate discussion,
construed the said phrase to mean an effective and
meaningful consultation and further that "consultation with
the Corporation" can only be "consultation with the
Corporation" constituted under Section 5 of the Act of 1949,
namely, the body corporate and will not mean consultation
with the Commissioner of the Municipal Corporation. Certain
other arguments have also been made by the learned counsel
for the petitioners in support of their petitions.
9 & 10-PIL-104 & 126-2023
4. Learned Advocate General Dr. Saraf, however, has
submitted that the notification impugned in these petitions,
dated 31st March, 2023, is not a final notification either
excluding certain areas from Municipal Corporation of Pune or
constituting another Municipal Council and is only referable to
Sub-section (4) of Section 3 of the Act of 1949 whereby
objections have been invited from the general public and final
notification will be issued following the mandatory provisions
contained in the Act of 1949. He has also submitted that
since the final notification is still to be issued excluding certain
areas from Municipal Corporation of Pune and constituting
another Municipal Council, challenge to the impugned
notification is absolutely premature. He has further stated
that apprehensions of the learned counsel for the petitioners
in these petitions are absolutely unfounded for the reason that
though consultation as required under Section 3(3)(a) with
the Municipal Corporation has been done in the sense that the
consultation with the administrator appointed under Section
452A of the Act of 1949 has taken recourse to, however, in
case before issuing any final notification, if any legal lacuna is
found in the consultation process, the same shall be cured
and deficiency, if any, shall be made good.
5. At this juncture, learned counsel for the petitioners have
strongly urged that any consultation process by the Municipal
Commissioner, may be in his capacity as administrator
appointed under Section 452A, will not fulfill the mandatory
requirement of "consultation with the Corporation" in terms of
provisions contained in Section 3(3)(a) of the Act of 1949 as
explained by this Court in the case of Sandeep Pandurang
9 & 10-PIL-104 & 126-2023
Patil (Supra). They have vehemently argued that consultation
with the Corporation in terms of the provisions contained in
Section 3(3)(a) of the Act of 1949 would necessarily mean
consultation with body corporate, that would mean
consultation with the Corporation when the House of the
Corporation is in existence. In this view, the submission is
that in absence of consultation with the Corporation at the
time when the elected House of the Corporation is not in
existence, the requirement of consultation with the
Corporation as per the mandate of Section 3(3)(a) would not
be fulfilled and hence not only the impugned notification but
entire process undertaken by it for exclusion of certain areas
from Municipal Corporation of Pune and for constituting
another Municipal Council is vitiated in law.
6. We have considered the rival submissions made by the
learned counsel representing the parties and have also noted
the statement of the learned Advocate General that before
issuing the final notification, if any legal lacuna/deficiency is
found, the same shall be cured/made good.
7. As far as the submission of the learned counsel for the
petitioners that "consultation with the Corporation" in this
case is vitiated for the reason that there has not been any
consultation with the Corporation as a body corporate
constituted under Section 5 in absence of House of the
Corporation in existence, is concerned, reliance has been
placed by the learned Advocate General on the Division Bench
judgment of this Court in Hemant Narayan Rasne vs.
Commissioner and Administrator of Pune Municipal
Corporation & Ors., 2022 SCC OnLine Bom 4505. In the
9 & 10-PIL-104 & 126-2023
said judgment, issue related to term of some Standing
Committee of the House of Pune Municipal Corporation in the
wake of appointment of the administrator. This Court referring
to the plain language occurring in Section 452A of the Act of
1949 has clearly held that the said provision mandates that
administrator shall exercise "all" the powers and perform "all"
the functions and duties of the House under the Act of 1949.
The said judgment was taken upto Hon'ble Supreme Court,
reported in 2022 SCC OnLine 1489, Hemant Narayan Rasne
vs. Commissioner and Administrator of Pune Municipal
Corporation & Ors., which affirmed the view taken by the
Division Bench of this Court.
8. Thus, we are of the considered opinion that once the
administrator is appointed under Section 452A, he is
empowered to undertake and perform all the functions and
duties which are otherwise entrusted to the body corporate
constituted under Section 5 of the Act of 1949.
9. Lastly, it has been contended by the learned counsel for
the petitioners that the phrase "after consultation with the
Corporation" occurring in Section 3(3)(a) of the Act of 1949
has already been construed by the Division Bench of this
Court in the case of Sandeep Pandurang Patil (Supra) and
according to the said judgment any consultation qua Section
3(3)(a) has to be necessarily done with the body corporate of
the Corporation constituted under Section 5 and not with the
administrator/Municipal Commissioner. In respect of this
submission we may only note that the said judgment was
rendered at the time when the elected body corporate
constituted under Section 5, which included the House of the
9 & 10-PIL-104 & 126-2023
Corporation, was not in existence. Accordingly, the judgment
in the case of Sandeep Pandurang Patil having been
rendered in a different context, in our opinion, will have no
application to the facts of the present case. For these
reasons, the argument made by the learned counsel for the
petitioners in this regard merits rejection, which is hereby
rejected.
10. Resultantly, the PIL petitions are disposed of in terms of
the statement made by the learned Advocate General that
before issuing the final notification excluding certain areas
from the Municipal Corporation of Pune and constituting
another Municipal Council, if any legal lacuna/deficiency is
found in the process of consultation with the Corporation, the
same shall be cured/made good.
11. We further permit the petitioners to make a
representation raising the objections, if any, in respect of the
consultation with the Corporation, within 10 (ten) days from
today. All other prayers and submissions made and raised in
these PIL petitions are kept open for consideration, which may
be raised in any other matter.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
Digitally
signed by
PRAVIN
PRAVIN DASHARATH
DASHARATH PANDIT
PANDIT Date:
2023.08.22
14:41:29
+0530
