Karnataka High Court

B. Mallesh vs The State Of Karnataka on 23 July, 2021

Author: Aravind Kumar Gowda

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                                                   R

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF JULY, 2021

                       PRESENT

       THE HON'BLE MR. JUSTICE ARAVIND KUMAR
                         AND
      THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA

              W.P. NO.6620/2021 (LB-RES)

BETWEEN:

1.     B. MALLESH
       S/O C. BASAPPA
       AGED ABOUT 44 YEARS
       R/A KURUGAL VILLAGE
       KURUGAL POST
       KOLAR TALUK
       KOLAR - 563 128.

2.     SATISH V C
       S/O CHENNAPPA
       AGED ABOUT 35 YEARS
       R/A VISHWANAGARA VILLAGE
       KURUGAL POST
       KOLAR TALUK
       KOLAR - 563 128.
3.     V. VENUGOPAL
       S/O MALLISHETTY
       AGED ABOUT 50 YEARS
       R/A HARGENAHALLI VILLAGE
       KURUGAL POST
       KOLAR TALUK
       KOLAR - 563 128.
4.     SURENDRA GOWDA
       S/O KRISHNAPPA
       AGED ABOUT 30 YEARS
       R/A MADIWALA VILLAGE
       KURUGAL POST
       KOLAR TALUK
       KOLAR - 563 128.
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5.   K.A. MANJUNATH
     S/O RANGANNA
     AGED ABOUT 47 EYARS
     R/A KURUGAL VILLAGE
     KURUGAL POST
     KOLAR TALUK
     KOLAR - 563 128.
6.   S.C. MUNIRAJA
     S/O CHIKKAMUNIYAPPA
     AGED ABOUT 45 YEARS
     R/A SOOLADENAHALLI VILLAGE
     KURUGAL POST
     KOLAR TALUK
     KOLAR - 563 128.
7.   M.A. RAMESH
     A/O APPAJIGOWDA
     AGED ABOUT 51 YEARS
     R/A MANCHENAHALLI VILLAGE
     KURUGAL POST
     KOLAR TALUK
     KOLAR - 563 128.
8.   C.M. MUNIRAJA
     S/O MUNIVENKATAPPA
     AGED ABOUT 31 YEARS
     R/A CHANDRASHEKARA VILLAGE
     KURUGAL POST
     KOLAR TALUK
     KOLAR - 563 128.
9.   D. NARAYANA SWAMY
     S/O DODDAMUNIYAPPA
     AGED ABOUT 36 YEARS
     R/A MALLIYAPPANAHALLI VILALGE
     KURUGAL POST
     KOLAR TALUK
     KOLAR - 563 128.
                                      ...PETITIONERS

(BY SRI. Y.R. SADASIVA REDDY, SR. COUNSEL FOR
    SRI. RAHUL S REDDY, ADVOCATE)
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AND:

1.     THE STATE OF KARNATAKA
       REP BY ITS SECRETARY
       DEPARTMENT OF RURAL
       DEVELOPMENT AND
       PANCHAYATH RAJ
       VIDHANA SOUDHA
       BENGALURU - 560 001.


2.     UNDER SECRETARY TO GOVERNMENT
       URBAN DEVELOPMENT DEPARTMENT
       VIKASA SOUDHA
       BENGALURU - 560 001.

3.     OFFICE OF THE DIRECTOR
       MUNICIPAL ADMINISTRATION
       9TH FLOOR, VISHVESHWARAIAH
       TOWER, DR. AMBEDKAR VEEDHI
       BENGALURU - 560 001.

4.     KURUGAL GRAMA PANCHAYAT
       KOLAR TALUK, KOLAR - 563 128
       REP BY ITS PANCHAYAT DEVELOPMENT
       OFFICER.
                                    ...RESPONDENTS
(BY SRI. DHYAN CHINNAPPA, ADDL. ADVOCATE GENERAL
A/W SRI. G.V. SHASHI KUMAR, A.G.A &
SMT. PRATHIMA HONNAPURA, A.G.A FOR R-1 TO R-3)

    THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OF CERTIORARI BY QUASHING THE OFFICIAL
KARNATAKA GAZETTE NOTIFICATION IN NO.NAE 148 MLR
2020, DATED 05.03.2021 ISSUED BY THE 1ST AND 2ND
RESPONDENT BY NOTIFYING THE GRAMA PANCHAYAT
AREA OF VEMGAL AND KURGAL, I.E., 4TH RESPONDENT
INCLUDING PURAHALLI VILLAGE OF SHETTYHALLY
GRAMA     PANCHAYAT      AND    KALAVA    MANJALI,
CHIKKAVALLABI AND BETTAHOSAPURA VILLAGES OF
CHOWDENAHALLI GRAMA PANCHAYATS OF KOLAR TALUK,
KOLAR DISTRICT AS A THE TRANSITIONAL AREA VIDE
ANNEXURE-G.
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    THIS PETITION HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY ARAVIND KUMAR J, MADE THE
FOLLOWING:
                                 ORDER

The Notification bearing No.NAE 148 MLR 2020

dated 05.03.2021 (Annexure-G) issued by first and

second respondent by notifying the Gram Panchayat

area of Vemagal and Kurugal, Kolar District including

the Purahalli Village of Shettihalli Gram Panchayat and

Kalva, Manjali, Chikkavallabhi and Bettahosapura

Villages of Chowdenahalli Grama Panchayat of Kolar

Taluk, Kolar District, as transitional area has been

called in question.

2. This Court while ordering notice to

respondents by order dated 05.04.2021 had directed the

learned AGA to secure the original records and they were

also directed not to take any further precipitative action

pursuant to impugned notification. For vacating the

said order, I.A.No.2/2021 has been filed by the

respondents/State. State who is defending the

impugned notification has filed its statement of

objections. Learned Advocates appearing for parties in

chorus agreed that hearing of the interlocutory

application for vacating interim order of stay is as good

as hearing the writ petition on merits and as such they

requested for matter being taken up for final disposal.

Hence by consent of learned Advocates appearing for

parties, matter is taken up for final disposal.

3. We have heard Sri.Y.R.Sadashiva Reddy,

learned Senior Counsel appearing for petitioners and

Sri.Dhyan Chinnapa, learned Additional Advocate

General appearing on behalf of Sri.Shashikumar along

with Smt. Prathima Honnur, learned Additional

Government Advocates for respondents. Perused the

case papers as well as original file, which has been made

available by the learned Additional Advocate General.

4. Petitioners are the villagers of 'Kurugal Gram

Panchayat' and have filed this Public Interest Litigation

on behalf of villagers and also on behalf of themselves

calling in question the validity of the Notification dated

05.03.2021 (Annexure-G).

5. The sum and substance of the contentions

raised by the petitioners interalia are:

(i) 90% of the villagers of Kurugal Panchayat are agriculturists and having lands, dairy, silk and dependent on this for their livelihood;

(ii) If Kurugal Panchayat is declared as a transitional area/pattana Panchayat along with Vemagal, people residing n Kurugal Panchayat will lose benefits they are getting hitherto;

(iii) The provisions of Section 3 of Karnataka Municipalities Act, 1964 (for short 'Act') has not been followed;

(iv) The provisions of Section 9 of the Act has not be followed.

6. Sri.Y.R.Sadashiva Reddy, learned Senior

Counsel appearing for petitioners by elaborating

aforesaid points has vehemently contended that fourth

respondent-Panchayat consists of 9 villages and the

villagers of Kurugal Gram Panchayat are all

agriculturists and meager taxes is being imposed to the

houses in the villages not only in Kurugal village but

also other eight (8) villages coming within the

jurisdiction of fourth respondent and all these villagers

are getting the benefit of electricity of minimum payment

and water supply is being extended by the Panchayat

free of cost. He would submit that students who study

upto 10th standard in Kurugal village are prosecuting

their higher studies at Kolar and nearest pre-university

college is in Vemagal. A degree college is not available

even at Vemagal. Hence, contending that Kurugal

Panchayat if declared as a Transitional Area/Pattana

Panchayat along with Vemagal, the people who are

residing in Kurugal Panchayat will lose all the benefits

which are extended to them. He would submit that

procedure as contemplated under Section 9 of the Act

has not been complied at the time of issuing impugned

notification and the Director of Municipal Administration

has to receive all such objections received with regard to

notification issued declaring any local area of altering

the limits of such area and thereafter he is required to

forward every such objection to the Governor and the

Governor, if in his opinion finds that such objections

raised to the proposed alteration or declaration are

insufficient or invalid, then notification would issue. He

would submit that in the instant case objections have

been submitted by the petitioners to the Director of

Municipal Administration, vide Annexures-C to C17 and

said objections came to be forwarded to the Deputy

Commissioner instead of Governor which procedure is

not prescribed under the Act and based on the inputs

given by the Deputy Commissioner, the Governor has

given approval without even recording opinion as to

whether said objections are unsustainable and

impugned notification has been issued mechanically and

hence, same being contrary to the rigour of provisions of

the Act, it is liable to be quashed. In support of his

submissions, he has relied upon the judgment of the

Coordinate Bench rendered in W.P.Nos.40686-690/2017

c/w W.P.No.36540/2017 dated 20.11.2017 and prays

for allowing the writ petition.

7. Sri. Dhyan Chinnappa, learned Additional

Advocate General appearing for the respondents/State

would defend the impugned notification by contending

under preliminary notification or proclamation dated

02.12.2020 (Annexure-B) issued for altering village

panchayat areas, objections were called for by following

the procedure prescribed under Section 9 and there is

no infirmity, whatsoever, in this regard. He would also

submit that said notification has been issued

considering the population of the area, density of

population and percentage of population involved in non

agricultural activities, which is not less than 50% and

said notification was issued on the basis of report of the

Deputy Commissioner clarifying the population of such

area and the report of Deputy Commissioner also specify

the percentage of employment in non agricultural

activities which is not less than 50% of the total

employment and by relying upon the report of the

Deputy Commissioner forwarded by the Director of

Municipal Administration dated 27.10.2020 and

03.11.2020 (Annexures-R1 and R2) respectively,

impugned notification came to be issued. He defends

the impugned notification. He would submit that

objections from various persons had been received by

the Deputy Commissioner and also Director of Municipal

Administration including the objections filed by the

petitioners and sum and substance of the said

objections was to the effect that petitioners would be

deprived of opportunity of working under MGNREGA

Scheme of which they are dependent and they would be

deprived of rural weightage, which has been given to the

said Villages. He would further elaborate his

submission by contending that objections raised by the

petitioners came to be considered by the Deputy

Commissioner and reports dated 04.02.2021 and

18.02.2021 (Annexures-R3 and R4) respectively

forwarded to Director of Municipal Administration would

clearly indicate there has been consideration of

objections raised by the petitioners and clarification

issued in submission note as to how the upgradation of

the Panchayat limits of the transitional area will benefit

the local people including the petitioners as a result of it,

are enumerated which includes benefit of Government

schemes and Government work would also increase in

the transitional area and the amount to be paid to the

workers would also correspondingly increase in such

local bodies works, which would definitely be more than

what was being paid under the MGNREGA Scheme. He

would also submit objections raised by the petitioners in

the writ petitions are untenable and it would not stand

in the way for upgradation of any area into smaller

urban area or transitional area and such upgradation is

a policy decision of the State.

8. Sri. Dhyan Chinnappa, learned Additional

Advocate General has further contended that in the

instant case records would disclose that approval had

been granted on 27.11.2020 by the State Cabinet, based

upon which, submission note had been placed before

the Governor and on perusal of said submission note,

the Governor had accorded approval for issuance of

notification on 27.11.2020 and as such it has to be

necessarily inferred that there is subjective satisfaction

recorded by the Governor as contemplated under

Section 9 of the Act. By relying upon the judgments of

Coordinate Bench in the matter of M.KEMPANNA AND

OTHERS v. STATE OF KARNATAKA AND OTHERS

reported in (1999) 4 KLJ 539, AMALPUR GRAM

PANCHAYAT v. STATE OF KARNATAKA AND OTHERS

reported in ILR 1997 KAR 2078 and in the case of

SHAMSHER SINGH & ANR v. STATE OF PUNJAB

reported in AIR 1974 SC 2192 in support of his

submissions. Hence, he has prayed for dismissal of the

writ petition.

FINDINGS ON AFORESAID CONTENTIONS:

9. Respondent Nos.1 and 2 issued a notification

bearing No.UDD148 MLR 2020 dated 02.12.2020 in

exercise of the powers confirmed by Section 3 read with

Sections 9, 349, 351 and 355B of the Karnataka

Municipalities Act, 1964, whereunder the Grama

Panchayat area of Vemgal and Kurugal including

Purahalli Village of Shettyhalli Grama Panchayat and

Kalava, Majali, Chikkavallabhi and Bettahosapura

Villages of Chowdenahalli Grama Panchayat of Kolar

Taluk, Kolar District mentioned in the Schedule A

thereunder along with boundaries mentioned in

Schedule B were proposed to be declared as transitional

area of Vemgal and Kurugal and further specified as

town panchayat area of Vemgal and Kurugal of Kolar

Taluk, Kolar District.

10. Section 349 of the Act prescribe that

Governor may, having regard to the factors mentioned in

Clauses (a) to (f) of sub-section (1) of Section 3 and

subject to the provisions of Section 9 specify, by

notification any area to be a transitional area. Proviso

thereto would indicate that no such area shall be so

specified as a transitional area unless:

(1) Such area contains a population of not

less than ten thousand but less than

twenty thousand;

(2) The density of population in such area is

not less than four hundred inhabitants to

one square kilometer of area;

(3) The percentage of employment in non-

agricultural activities is not less than fifty

percent of the total employment.

Second proviso provides that if a Taluk Head Quarters is

situated in such area, the Governor may, specify, such

area to be a transitional area even though it contains

population of less than ten thousand.

10.1. Section 3 of the Act reads:

"[3. Specification of smaller urban area.--(1) The Governor may subject to the provisions of Section 9 and having regard to,--

(a) the population of any area;

(b) the density of population of such area;

(c) the revenue generated for the local administration of such area;

(d) the percentage of employment in non-agricultural activities in such area;

        (e) the economic importance of such
            area; and

        (f)     such other factors as may be
                prescribed,

specify, by notification, such area to be a smaller urban area and such smaller urban area shall be deemed to be a municipal area:

Provided that no such area shall be so specified as a smaller urban area unless,--

(i) the population of such area is not less than twenty thousand and not more than three lakhs;

(ii) the density of population in such area is not less than one thousand

five hundred inhabitants to one square kilometer of area;

(iii) the revenue generated for local administration from such area from tax and non-tax sources in the year of the last preceding census is not less than rupees nine lakhs per annum or a sum calculated at the rate of rupees forty-five per capita per annum, whichever is higher;

(iv) the percentage of employment in non-agricultural activities is not less than fifty per cent of the total employment:

[*****]"

Any area can be specified to be a smaller urban area

which shall be deemed to be a municipal area by

specifying so in the notification having regard to factors

enumerated in Clause (a) to (f) Section 3 and subject to

the provision of Section 9.

11. Section 9 of the Act prescribes the procedure

for constitution, abolition, etc., of smaller urban areas

and it reads:

"9. Procedure for constitution, abolition, etc., of [smaller urban areas].-- Not less than [thirty days] before the publication of any notification declaring

any local area to be a [smaller urban area], or altering the limits of any such [smaller urban area] or declaring that any local area shall cease to be [smaller urban area], the [Governor] shall cause to be published in the official Gazette, in English and Kannada, and to be posted up in conspicuous places in the said local area in Kannada, a proclamation announcing that it is proposed to constitute the local area to be [smaller urban area], or to alter the limits of the [smaller urban area] in a certain manner, or to declare that the local area shall cease to be a [smaller urban area], as the case may be, and requiring all persons who entertain any objection to the said proposal to submit the same, with the reasons therefor, in writing to the [Director of Municipal Administration] within [thirty days] from the date of the said proclamation, and whenever it is proposed to add to or exclude from a [smaller urban area] any inhabited area, it shall be duty of the municipal council also to cause a copy of such proclamation to be posted up in conspicuous places in such area. The [Director of Municipal Administration] shall, with all reasonable despatch, forward every objection so submitted to the [Governor].

No such notification as aforesaid shall be issued by the [Governor] unless the objections, if any, so submitted are in [his] opinion insufficient or invalid."

12. A plain reading of Section 9 of the Act would

clearly indicate that before publication of any

notification declaring any local area to be smaller urban

area or altering limits of any such smaller urban area,

the Governor should cause publication of a proclamation

in the official Gazette in English and Kannada requiring

all persons who entertain any objection to the said

proposal to submit the same to the Director of Municipal

Administration within thirty days from the date of such

proclamation. The objections, so submitted in writing is

required to be forwarded to the Governor within

reasonable time by the Director of Municipal

Administration. No such notification would be issued by

the Governor unless the objections, if any, so submitted

are in his opinion insufficient or invalid.

13. The expression "Director of Municipal

Administration" and "Governor" as found in Section 9

came to be substituted by "Act 31 of 2003" and "Act 36

of 1994" respectively for the words and expression

"Commissioner" and "Government". Thus, it would

emerge from Section 9 that objections for the proposal

received on publication of proclamation, would be

received by the Director of Municipal Administration and

he in-turn would forward with all reasonable despatch,

every objections so submitted to the Governor. The

Governor would not issue notification under Section 3

unless the objections, if any, so submitted are in his

opinion insufficient or invalid. Thus, at the first

instance it requires to be noticed that it is the Director of

Municipal Administration alone, who is empowered to

receive the objections and on receipt of such objections,

he would with all reasonable despatch, forward every

objection so received by him to the Governor. No such

notification as indicated in Section 3 of the Act would be

issued by the Governor unless the objections, if any, so

submitted or in his opinion insufficient or invalid.

14. It is no doubt true in the instant case prior to

issuance of impugned notification a proclamation came

to be issued on 02.12.2020 (Annexure-B) as

contemplated under Section 9 and draft of said

proclamation had been approved by the State Cabinet

on 27.11.2020 followed by placing a submission note to

the Governor on 27.11.2020 and it was approved by the

Governor on same day i.e., 27.11.2020.

15. Petitioners and similarly placed persons have

filed their objections vide Annexures-C to C17 to said

proclamation contending interalia that they have been

registered under the MGNREGA Scheme and carrying on

unskilled coolie work and are opposed upgrading fourth

respondent as town Panchayat along with other villages.

Said objections have been filed before the Director of

Municipal Administration - third respondent herein and

he in turn has forwarded the said objections to the

Deputy Commissioner vide communication dated

31.12.2020 (Annexure-E) whereunder he has sought for

opinion of the Deputy Commissioner. The Deputy

Commissioner, Kolar, in turn has forwarded a report on

04.02.2021 (Annexure-F) to the Director, Municipal

Administration assigning the reasons for issuance of

notification. It would be relevant to note at this juncture

itself that Section 9 of the Act does not contemplate any

such procedure. To put it differently, the Director of

Municipal Administration on receipt of said objections,

was required to despatch with all reasonable time every

such objection received to the Governor for his

consideration. However, this course of action was not

undertaken by the Director, Municipal Administration.

16. It is trite law that consideration of objections

is to be on the basis of objective assessment and

subjective satisfaction. It need not be stated in the order

of approval granted by the Hon'ble Governor that each

and every such objection has been examined or

considered. Even if the submission note prepared by the

Director of Municipal Administration forwarding every

such objection along with objections so received and

placed before the Governor would disclose that same has

been considered, it would suffice. However, the

objections so received by the Director of Municipal

Administration for the proclamation has to be forwarded

to the Governor and there is no intermediary role

required to be played by the Deputy Commissioner.

17. In the instant case, a submission note was

put up by the Principal Secretary to the Governor for

issuance of notification under Section 3 by noting the

report of the Deputy Commissioner. Said submission

note dated 03.03.2021 is perused by us and it reads:

"Objections/suggestions received within the stipulated period were examined and placed in the file for perusal. As per the report of the Deputy Commissioner, Kolar District and the Director, Directorate of Municipal Administration, Bengaluru final Notification has to be notified for converting Grama Panchayat Area of Vemagal and Kurugal including Purahalli Village of Shettihalli Gram Panchayat and Kalva, Manjali, Chikkavallabhi and Bettahosapura Villages of Chowdadenahalli Grama Panchayat of Kolar Taluk, Kolar District as a Transitional area as mentioned in Schedule-A along with boundaries mentioned in Schedule - B, as a "Town Panchayat area" of Vemagal and Kurugal. Accordingly, the Final Notification is annexed herewith.

In view of the above facts, approval of His Excellency, the Governor of Karnataka is solicited to issue final Notification, which is annexed herewith as per Section 3, 9, 349, 351 and 355(B) of the Karnataka Municipalities Act 1964 for notifying Grama Panchayat Area of Vemagal and Kurugal including Purahalli Village of Shettihalli Gram Panchayat and Kalva, Manjali, Chikkavallabhi and Bettahosapura Villages of Chodadenahalli Grama Panchayat of Kolar Taluk, Kolar District as mentioned in Schedule - A, along with boundaries mentioned in Schedule - B, as a Transitional Area and further specifying it as a "Town Panchayat Area" of Vemagal and Kurugal."

18. It requires to be noticed from the aforesaid

submission note that there is no reason assigned as to

why said objections are to be over ruled. In other words,

submission note placed before the Governor does not

indicate as to why objections so received have to be held

as insufficient or invalid. That apart, judgment of the

Coordinate Bench, which has been pressed into service

by the learned Additional Advocate General in

Kempanna's case referred to herein supra, would

indicate that in the facts obtained in said case, the

records disclosed that objections received were

considered by the State Government and a detail note on

the objections was prepared and submitted to the

Governor. The Division Bench while affirming the view

taken by learned Single Judge has noticed that

observation made by the learned Single was to the

following effect:

"Learned Government Advocate has made available the records relating to the impugned notification. From the records it is seen that all the objections received in respect of both the Municipal Councils were considered by the State Government and detail note on the

objections was prepared and submitted to the Governor."

(emphasis supplied by us)

19. Taking cue from the observations made by

the learned Single Judge as affirmed by the Division

Bench, Sri.Dhyan Chinnappa has made a valiant

attempt to contend that at the stage of issuing

preliminary notification or proclamation itself approval

of the Governor had been taken and submission note

which had been placed by the State Government before

Governor had been examined, considered and approved

by the Governor and this was also preceded by approval

accorded by the Cabinet on 27.11.2020 and as such

there is no infirmity in the procedure contemplated

under Section 9 of the Act. There is no dispute to the

fact that prior to issuance of impugned notification

dated 02.12.2020, Cabinet has approved the issuance of

proclamation or preliminary notification dated

27.11.2020 and Governor had also approved the same.

It is only thereafter Section 9 of the Act would step in

namely, Section 9 of the Act would operate for issuance

of notification under Section 3 of the Act to declare any

local area to be a smaller urban area or altering the

limits of any such smaller urban area or declaring any

local area shall cease to be smaller urban area. The

legislative intent under Section 9 is clear and

unambiguous namely, a statutory duty is cast on the

Governor to cause publication of proclamation in

English and Kannada in Official Gazette by giving not

less than thirty (30) days before publication of any such

notification by calling for objections, which in the

instant case was called for after the issuance of

notification on 02.12.2020 and objections have been

received on 29.12.2020 Annexure-'C' series and it was

this objection which was required to be forwarded by the

Director of Municipal Administration for being placed

before the Governor, who in turn was required to have

recorded his satisfaction of either the objections so

raised being insufficient or invalid or rejected the same

as being insufficient and invalid and ordered for

issuance of notification. In the instant case, as already

noticed by us hereinabove, neither the submission note

nor the note put up before the Governor would indicate

of such an exercise having been undertaken. On the

other hand, report of the Deputy Commissioner has

been placed along with communication dated

31.12.2020 forwarded by the Director of Municipal

Administration for perusal and approval to be granted

by the Governor and approval so granted do not indicate

about objections having been considered and as such,

said contention cannot be accepted and it stands

rejected.

20. Learned Additional Advocate General

appearing for the State has vehemently contended that

mere preparation of a report by the Deputy

Commissioner would not vitiate the proceedings which

culminates in issuance of impugned notification , is an

argument which cannot be accepted, inasmuch as,

there cannot be any infraction of the mandatory

procedure as prescribed under Section 9 of the Act. As

noticed hereinabove, in the instant case, objections

have been received by the Director of Municipal

Administration - third respondent and he could have

forwarded every such objection with all reasonable

despatch, to the Governor for being considered. The

original records, which has been made available by the

learned AGA, has been perused and communication

dated 18.02.2021 forwarded by the Director, Municipal

Administration to the Principal Secretary, Urban

Development Department disclose that based on the

report of the Deputy Commissioner he has

recommended for accepting same and based on said

recommendation, submission note has been placed

before the Governor by the Principal Secretary to

Government, Urban Development Department.

21. At the outset, it requires to be noticed that

report of the Deputy Commissioner is the basis on which

the submission note has been forwarded to the

Governor. The procedure prescribed under Section 9

does not indicate of any role required to be played by the

Deputy Commissioner either in receiving the objections

or said report of Deputy Commissioner being forwarded

to the Governor. There is neither reference to the nature

of objections in the submission note placed before the

Governor namely, as to what is the nature of objections

or why said objections to the proposed notification is

insufficient or invalid. The submission note which is

prepared by the Principal Secretary to the Government,

Urban Development Department, do not disclose the

details of those objections for being considered by the

Governor either for being accepted or rejected. In other

words, submission note does not disclose as to whether

objection has been considered objectively or subjective

satisfaction having been arrived at either by the Deputy

Commissioner or Director, Municipal Administration

and Governor on the basis of said submission note

placed before him and Governor having found objections

are insufficient or invalid.

22. The mandate of Section 9 of the Act being

that Governor should form an opinion that objections to

the proposed notification being insufficient or invalid,

would alone qualify for notification being issued under

Section 3 of the Act as otherwise not. The consideration

of objections by the Governor is not discernable from the

file or submission note and there is no material

available to hold that on the basis of submission note,

the Governor has recorded his subjective satisfaction.

23. As already noticed hereinabove, even

submission note does not disclose or indicate with

regard to nature of the objections and its consideration

thereof by the Urban Development Department which

crystallized into submission note so as to arrive at a

conclusion that submission note prepared and placed

before Governor itself disclosed that consideration of

objections being there for presuming that Governor had

arrived at a subjective satisfaction on an objective

assessment of such submission note. In the absence of

these facts forthcoming from the file placed before the

Governor, the irresistible conclusion which will have to

be drawn is there is non compliance of mandatory

provision of Section 9 of the Act.

For the reasons aforestated, we proceed to pass the

following:

ORDER

(i) Writ petition is allowed.

(ii) Notification bearing No.NAE 148 MLR 2020

dated 05.03.2021 (Annexure-G) is

quashed.

(iii) Liberty is reserved to the State Government

to proceed from the stage of consideration

of objections received opposing constitution

of transitional area.