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CASE NO.:

Appeal (civil) 1296-1297 of 2003

PETITIONER:

State of Maharashtra & Ors.

RESPONDENT:

Jalgaon Municipal Council & Ors.

DATE OF JUDGMENT: 14/02/2003

BENCH:

R.C. LAHOTI & BRIJESH KUMAR.

JUDGMENT:

JUDGMENT

(Arising out of SLP(C) Nos.1690-1691/2002)

R.C. Lahoti, J.

Leave granted in both the SLPs.

In the year 2001, Jalgaon, a city situated in the State of Maharashtra,

was an urban area administered by a Municipal Council constituted under

the provisions of the Maharashtra Municipal Council Nagar Panchayat and

Industrial Townships Act 1965 (hereinafter, 'the M.R. Municipal Council

Act', for short). The term of the Municipal Council as existing then was to

end on 16th December, 2001.

In this judgment we would also be making reference to the

provisions of the Bombay Provincial Municipal Corporation Act 1949

which for the sake of convenience and brevity will be referred to as B.P.

Municipal Corporation Act.

Part IXA came to be inserted into the Constitution of India by

Seventy Fourth Amendment w.e.f. 1.6.1993. This Part contemplates

constitution of Nagar Panchayats, Municipal Councils and Municipal

Corporations in every State. The three tools of local self government are

contemplated by the Constitution to administer a transitional area, a smaller

urban area and a larger urban area respectively. Article 243Q(2) defines

these three areas to mean such areas 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 the

Governor may deem fit specify by public notification for the purpose of

Part IXA. We are concerned with smaller or larger urban areas based

whereon a Municipal Council or a Municipal Corporation, respectively,

shall be constituted. It is not disputed that so far as the factor of

population

is concerned, the bench mark dividing the areas to be administered by

Municipal Council or by Municipal Corporation, as the case may be, is the

population of three lakhs. The urban area having population less than three

lakhs is a smaller urban area to be administered by Municipal Council and

an urban area having a population of not less than three lakhs is a larger

urban area to be administered by a Municipal Corporation.

On 13.8.2001, the Directorate of Census Operations, Maharashtra,

published Census of India 2001, Series 28 Maharashtra, Provisional

Population Totals, Paper-2 of 2001, Rural Urban Distribution of

Populations. According to the Census 2001, the urban population of

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Jalgaon, the city having the status of Municipal Council, was 3,68,579

persons. The Census also classifies the said total figure of persons by

reference to age groups and literacy levels with which we are not

concerned. The factum of publication of population totals as on 13.8.2001

and the correctness of the figure of population is not disputed by any of the

parties.

The proposal for converting the constitution of Jalgaon city from

Municipal Council into a Municipal Corporation was under consideration

of the State Government for quite some time. According to the appellant

State of Maharashtra, ever since 1997 the thought was receiving

consideration of the State Government that looking to all the relevant

factors Jalgaon was appropriately suited to be upgraded to the status of a

Municipal Corporation. Consultation in that behalf with the Municipal

Council of Jalgaon by the State Government had been going on since 1993

but did not materialize as the official figures of population of Jalgaon urban

area, as evidenced by the preceding Census of 1991, had not touched the

bench mark of three lakhs.

On 16th October, 2001, the State Government published two

proclamations, respectively under the provisions of the B.P. Municipal

Corporations Act and M.R. Municipal Council Act reproduced as under:-

"NOTIFICATION

Urban Development Department

Mantralaya, MUMBAI 400 032.

Dated the 16th October 2001

Bombay Provincial Municipal Corporation Act, 1949

No. GEN 1596/194/C.R. 126/96/UD-24 __ The

following draft of notification, which the Government

of Maharashtra proposes to make in exercise of the

powers conferred by sub-Section (2) of Section 3 of

the Bombay Provincial Municipal Corporation Act,

1949 (Bom. LIX of 1949), is hereby published, as

required by sub-Section (4) of said Section 3 of the

said Act, for the information of all persons likely to be

affected thereby and notice is hereby given that the

said draft will be taken into consideration by the

Government of Maharashtra on or after day of 18th

December, 2001.

2. Any objection or suggestion, which may be

received by the Collector of the District of Jalgaon,

from any person with respect to the aforesaid draft,

before the aforesaid date will be considered by the

Government.

NOTIFICATION

No. GEN 1596/194/C.R. 126/96/UD-24 Whereas the

total population of the Jalgaon Municipal Council

comprising Jalgaon smaller urban area, District

Jalgaon, is according to the provisional figures of the

Census of the year 2001, is 3,68,579;

And whereas, the Government of Maharashtra

having regard to the factors mentioned in clause (2) of

Article 243-Q of the Constitution of India considers it

expedient to declare, under sub-Section (2) of Section

3 of the Bombay Provincial Municipal Corporations

Act, 1949 (Bom. LIX of 1949), (hereinafter referred to

as "the said Act"), the said Jalgaon smaller urban area

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of the Jalgaon Municipal Council to be larger urban

area;

Now, therefore, in exercise of the powers

conferred by sub-Section (2) read with sub-Section

(2A) of Section 3 of the said Act, and after previous

publication of the draft notification as required by sub-

Section (4) of said Section 3, the Government of

Maharashtra hereby specifies the 18th December, 2001

to be the date from which the area specified in the

Schedule appended hereto, which comprises of the

whole of the Jalgaon smaller urban area in District

Jalgaon, shall be Jalgaon larger urban area, which shall

form a city, having a Corporation to be known by the

name of "Municipal Corporation of the City of

Jalgaon" for the purpose of the said Act.

SCHEDULE

Area, which shall form the Jalgaon larger urban area,

which shall form a city, having a Corporation to be

known by the name of "Municipal Corporation of the

City of Jalgaon"

"Jalgaon smaller urban area Dist. Jalgaon"

By Order and in the name of the Governor of

Maharashtra.

Sd/-

(Ramanand Tiwari)

Principal Secretary to Governmment

. . . . . . . .

PROCLAMATION

Urban Development Department

Mantralaya, Mumbai 400 032

Dated the 16th October 2001

Maharashtra Municipal Councils, Nagar Panchayats

and

Industrial Townships Act, 1965.

No. GEN 1596/194/C.R. 126/96/UD-24: Whereas by

Government Notification, Urban Development

Department No. GEN 1596/194/C.R. 126/96/U.D.-24,

dated the 16th October 2001, issued in exercise of the

powers conferred by sub-Section (2) of Section 3 of

the Bombay Provincial Municipal Corporations Act,

1949 (Bom. LIX of 1949), the Government of

Maharashtra has announced its intention to declare the

Jalgaon smaller urban area in the Jalgaon District to be

a larger urban area which shall form a city and shall

have a corporation by the name "Municipal

Corporation of the City of Jalgaon".

Now, therefore, in pursuance of the provisions

of sub-Section (3) of Section 3 read with sub-Section

(2) of Section 6 of the Maharashtra Municipal

Councils, Nagar Panchayats and Industrial Townships

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Act, 1965 (Mah. XL of 1965) (hereinafter referred to

as "the Municipal Councils Act"), the Government of

Maharashtra hereby announces its intention to issue a

notification under clause (d) of sub-Section (1) of

Section 6 of the Municipal Councils Act that the

existing Jalgaon smaller urban area of the Jalgaon

Municipal Council shall cease to be a municipal area

within effect from the date of coming into force of the

notification issued under sub-Section (2) of Section 3

of the Bombay Provincial Municipal Corporations Act,

1949 (Bom. LIX of 1949), specifying Jalgaon larger

urban area, which shall form a city and shall have a

Municipal Corporation known by the name "Municipal

Corporation of the City of Jalgaon".

2. All persons who entertain any objections to the

said proposal are required to submit the same, with

reasons therefore in writing to the Collector of the

District of Jalgaon within two months from the date of

publication of this Proclamation in the Official

Gazette.

By Order and in the name of the Governor of

Maharashtra.

Sd/-

(Ramanand Tiwari)

Principal Secretary to Government"

On 15th November 2001, another two proclamations were issued

under the said two acts respectively and by reference to the provisions

mentioned therein, which are reproduced hereunder:

PROCLAMATION

Urban Development Department

Mantralaya, Mumbai 400 032

Dated the 15th November 2001

Maharashtra Municipal Councils, Nagar Panchayats

and

Industrial Townships Act, 1965

No. GEN 1596/194/CR-126/96/UD-24:

Whereas by Government proclamation, Urban

Development Department No. GEN 1596/194/CR-

126/96/UD-24 dated the 16th October, 2001, issued in

exercise of the powers conferred by sub-Section (3) of

Section 3 read with sub-Section (2) of Section 6 of the

Maharashtra Municipal Councils, Nagar Panchayats

and Industrial Townships Act, 1965 (Mah. XL of 1965

(hereinafter referred to as "Municipal Councils Act"),

the Government of Maharashtra invited objections

within two months to its proposal to notify that the

Jalgaon smaller urban area of Jalgaon Municipal

Council shall cease to be a Municipal area within the

meaning of the Municipal Councils Act;

And whereas the provisions of sub-Section (3)

of the Municipal Councils Act having been

retrospectively amended with effect from the 16th

October, 2001, by the Maharashtra Municipal

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Councils, Nagar Panchayats and Industrial Townships

(Second Amendment) Ordinance, 2001 (Mah. Ord.

XXXVII of 2001), with a view to provide that the

objection to the proposal shall be entertained within a

period of thirty days on such other period not less than

thirty days as may be specified by the State

Government by a notification in the Official Gazette.

Now, therefore, in exercise of the powers

conferred by sub-section (3) of Section 3 of the

Municipal Councils Act as amended by the

Maharashtra Municipal Councils, Nagar Panchayats

and Industrial Townships (Second Amendment)

Ordinance, 2001, the Government of Maharashtra

hereby specifies the 21st November, 2001 to be the

date on or before which the objections pursuant to the

said proclamation shall be entertained.

By Order and in the name of the Governor of

Maharashtra.

Sd/-

(Ramanand Tiwari)

Principal Secretary to Government"

"NOTIFICATION

Urban Development Department

Mantralaya, Mumbai 400 032.

Dated the 15th November 2001

Bombay Provincial Municipal Corporation Act, 1949

No. GEN 1596/194/C.R. 126/96/UD-24:-

In exercise of the powers conferred by sub-

section (2) of Section 3 read with sub-Section (4)

thereof of the Bombay Provincial Municipal

Corporations Act, 1949 (Bom. LIX of 1949), and of all

other powers enabling it in that behalf, the

Government of Maharashtra hereby appoints 21st

November, 2001 to be the date on or before which the

objections or suggestions in pursuance of the

Government Notification Urban Development No.

GEN 1596/194/C.R. 126/96/UD-24 dated the 16th

October, 2001 shall be received and for that purpose,

amends the said notification as follows, namely:-

In the said notification, for the words and

figures "18th day of December 2001", wherever it

occurs the words and figures "21st November 2001"

shall be substituted.

By Order and in the name of the Governor of

Maharashtra.

Sd/-

(Ramanand Tiwari)

Principal Secretary to Government"

Digressing a little from narration of events, it would be appropriate

to notice the relevant Constitutional and statutory provisions as the same

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would facilitate the appreciation of relevant events which followed. So far

as the Constitution is concerned, the following are the relevant articles

contained in Part IXA of the Constitution:-

243P. Definitions.__ In this Part, unless the context

otherwise requires, __

xxx xxx xxx xxx

xxx xxx xxx xxx

(d) 'Municipal area' means the territorial area of a

Municipality as is notified by the Governor;

(e) 'Municipality' means an institution of self-

government constituted under article 243Q;

xxx xxx xxx xxx

xxx xxx xxx xxx

(g) 'population' means the population as

ascertained at the last preceding census of

which the relevant figures have been published.

243Q. 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 intransition 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 regarded 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.

xxx xxx xxx xxx

xxx xxx xxx xxx

243U. Duration of Municipalities, etc. __ (1) Every

Municipality, unless sooner dissolved under any law

for the time being in force, shall continue for five years

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from the date appointed for its first meeting and no

longer:

Provided that a Municipality shall be given a

reasonable opportunity of being heard before its

dissolution.

(2) No amendment of any law for the time

being in force shall have the effect of causing

dissolution of a Municipality at any level, which is

functioning immediately before such amendment, till

the expiration of its duration specified in clause (1).

(3) An election to constitute a Municipality

shall be completed, __

(a) before the expiry of its duration specified in

clause (1);

(b) before the expiration of a period of six

months from the date of its dissolution:

Provided that where the remainder of the period

for which the dissolved Municipality would have

continued is less than six months, it shall not be

necessary to hold any election under this clause for

constituting the Municipality for such period.

(4) A Municipality constituted upon the

dissolution of a Municipality before the expiration of

its duration shall continue only for the remainder of the

period for which the dissolved Municipality would

have continued under clause (1) had it not been so

dissolved."

On 15th November, 2001, the Governor of Maharashtra promulgated

Maharashtra Ordinance No. 37 of 2001. The text of the Ordinance is brief

and it would be useful to set out the same in its entirety as under:-

"MAHARASHTRA GOVERNMENT GAZETTE

URBAN DEVELOPMENT DEPARTMENT

MANTRALAYA, MUMBAI 400 032,

DATED 15TH NOVEMBER, 2001

MAHARASHTRA ORDINANCE NO. XXXVII OF

2001

AN ORDINANCE

Further to amend the Maharashtra Municipal Councils,

Nagar Panchayats and Industrial Townships Act, 1965

WHEREAS both Houses of the State Legislature are

not in session;

AND WHERAS the Governor of Maharashtra is

satisfied that circumstances exist which render it

necessary for him to take immediate action further to

amend the Maharashtra Municipal Councils, Nagar

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Panchayats and Industrial Townships Act, 1965, for

the purposes hereinafter appearing;

NOW, THEREFORE, in exercise of the powers

conferred by clause (1) of article 213 of the

Constitution of India, the Governor of Maharashtra is

hereby pleased to promulgate the following Ordinance,

namely:

1. Short title and commencement (1) This

Ordinance may be called the Maharashtra Municipal

Councils, Nagar Panchayats and Industrial Townships

(Second Amendment) Ordinance, 2001.

(2) It shall be deemed to have come into force

on the 16th October, 2001.

2. Amendment of section 3 of Maharashtra XI of

1965 In section 3 of the Maharashtra Municipal

Councils, Nagar Panchayats and Industrial Townships

Act, 1965 (hereinafter referred to as "the Municipal

Council Act") in sub section (3) for the words "two

months" the words "not less than thirty days" shall be

substituted.

3. Removal of doubt For the removal of doubt it

is hereby declared that sub-section (3) of Section 3 of

the Municipal Councils Act having been amended

retrospectively, with effect from the 16th October, 2001

by the Maharashtra Municipal Councils, Nagar

Panchayats and Industrial Townships (Second

Amendment) Ordinance, 2001 (hereinafter, in this

section, referred to as "the said Ordinance") and

accordingly

(i) any Government Proclamation Notification

Order or Instrument issued or purported to have

been issued in exercise or in pursuance of the

provisions of sub-section (3) of section 3 read

with sub-section (2) of section 6 of the

Municipal Councils Act on or after the 16th

October, 2001 till the date of publication of the

said Ordinance, shall be and shall be deemed to

have been issued under the said sub-section (3)

as amended by the said Ordinance (hereinafter,

referred to as "the amended sub-section(3)");

and

(ii) the two months period specified for

entertaining any objections to a proposal

contained in such Government Proclamation,

Notification, Order or Instrument shall be read

and shall always be read as a period being not

less than the period of thirty days as specified or

may be specified under the amended sub-

section (3), in such Proclamation, Notification,

Order or Instrument, as the case may be, for the

date of publication of such Proclamation,

Notification, Order or Instrument in this

Official Gazette; and

(iii) it shall be lawful for the State Government

to consider any objections that might have been

received within the period or amended period as

specified in such Proclamation, Notification,

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Order or Instrument, as the case may be, from

the date of publication of such Proclamation,

Notification, Order or Instrument in the Official

Gazette, and thereafter after considering the

same, issue the final Notification, Order or

Instrument, in respect of the same, as the State

Government may deem fit; and

(iv) no such final Notification, Order or

Instrument issued by the State Government after

considering any such objection after the said

period, shall be called in question or deemed to

be invalid only on the ground that the State

Government had issued such final Notification,

Order or Instrument, before the expiry of the

period specified for entertaining any objections

in any such Government Proclamation,

Notification, Order or Instrument, before its

amendment as provided by section 2."

The Ordinance is accompanied by a statement, parts 2 and 3 whereof are

relevant and hence are extracted and reproduced hereunder:-

"2. Sub section (2) of section 3 of the Bombay

Provincial Municipal Corporations Act, 1949,

empowers the State Government to specify, by

notification in the Official Gazette, any urban area

with a population of not less than three lakhs as a

larger urban area which shall be a city and shall have a

Municipal Corporation under the said Act. The

provincial census figures for the census held in the

year 2001 shows that the population of the Municipal

Councils of Mira Bhayandar, Bhivandi Nijampur,

Malegaon, Ahmednagar, Dhule and Jalgaon is more

than three lakhs. Therefore, as provided in sub-section

(2) of section 3 of the said Act, the Government has

decided to constitute a Municipal Corporation for each

such area and therefore has issued six different

preliminary notifications on the 16th October, 2001

inviting objections within a period of two months from

the publication of the proposal to constitute Municipal

Corporations for those areas. The said period would

therefore, expire on the 15th December, 2001.

3. The general elections to four out of the said

Municipal Councils, that is to say to the Municipal

Councils of Bhivandi-Nijampur, Malegaon,

Ahmednagar and Jalgaon, are scheduled to be held in

the first week of December, 2001. If the proposal of

the Government to establish Municipal Corporations in

those four areas is finalized in the meanwhile, the

expenditure for holding the elections of those four

Municipal Councils would be an avoidable

expenditure of public money, and avoidable wastage

of time and energy of Government machinery. The

Government, therefore, considers it expedient to

provide that the period within which objections to the

issuance of a notification shall be entertained should

be curtailed from a period of two months to such

period being not less than thirty days, by suitably

amending the relevant provision of the Municipal

Councils Act. Such amendment is aimed at enabling

the Government not to be compelled to hold the

ensuring elections of the said Municipal Councils and

thereby stop the wasteful expenditure on holding of

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two elections that is to say of the said Municipal

Councils, and then for Corporations."

It is not disputed that the two proclamations dated 15th November,

2001 extracted and reproduced hereinabove were published in the

Government Gazette dated 15th November, 2001. However, in the

newspaper the proclamations were published only on 19th November, 2001.

The time prescribed for preferring the objections came to an end on 21st

November, 2001.

The Ordinance was repealed and replaced by an Act in due course of

time. The provisions of the Act are the same as that of the Ordinance.

As soon as the proclamations setting out the intention of the State

Government to constitute a Municipal Corporation replacing the Municipal

Council for the city of Jalgaon came to the notice of Jalgaon Municipal

Council, a meeting of the Municipal Council was convened to be held on

21.10.2001. It appears that several corporators had invited the attention of

the Municipal Council to consider the issue so as to place on record

suggestions and objections of the Municipal Council as regards the

proposed change and forward the resolution for the consideration of the

State Government. Resolution No.429A dated 21.10.2001, unanimously

passed by majority of the Councillors voting for the resolution, is a long

one which need not be reproduced in extenso. Suffice it to state that the

resolution displays conscious consideration of the Municipal Council of the

factors like: (i) population, (ii) area and development of the city, (iii)

financial aspect, (iv) administrative aspect, (v) Government schemes, (vi)

educational requirements of population, and (vii) development works in

progress, etc. The gist of the opinion, as recorded in the resolution, is that

the Municipal Council was working well, had successfully augmented its

resources so as to be financially in surplus, was well administered and if on

account of conversion into Municipal Corporation, the government aid so

far enjoyed by the Municipal Council is discontinued, it will not be good

for such educational institution schemes and activities as are depending on

the financial support of the government. In particular it is stated that the

Municipal Council had undertaken several development works for the

welfare of the community which will suffer an adverse impact on account

of the change. At the end there is a passing reference without any

particulars that the decision of conversion into a Corporation was taken in

"political interest" and under pressure of "some political leader". Two

points need to be noted: firstly, the resolution does not dispute the

population of Jalgaon urban area having crossed the bench mark of three

lakhs. and secondly, the resolution does not also dispute the availability of

anyone of the relevant factors referred to in sub-Article (2) of Article 243Q

of the Constitution, the factors on the availability whereof depends the

decision of the Governor to classify an area into "a transitional area", "a

smaller urban area" or "a larger urban area".

It is also not disputed that within the period appointed for preferring

the objections by virtue of the two sets of proclamations read together, i.e.

between 16.10.2001 and 21.11.2001, 239 objections were received. The

objections in substance highlighted only two issues: firstly, that the

development activities in progress and undertaken by the Municipal

Council will be hampered by switching over to constitution of a Municipal

Corporation and secondly, the constitution of Municipal Corporation would

result in imposition of newer and higher taxes casting additional financial

burden on the inhabitants of the area. Here again it is pertinent to mention

that none of the 239 objections disputes the correctness of the figure of

population having crossed the bench mark of three lakhs or the availability

of any of the relevant factors contemplated by Article 243Q(2).

There were seven urban areas including Jalgaon which were sought

to be upgraded by the State Government from Municipal Council to

Municipal Corporation. While the final notification was yet to be issued,

several writ petitions came to be filed in the High Court laying challenge to

the proposal of the State Government. We are told that the writ petition

relating to Jalgaon Municipal Council has been disposed of by the High

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Court vide the impugned judgment and so far as the other writ petitions are

concerned they are pending in the High Court presumably awaiting the

outcome of the present appeal. So far as the case at hand is concerned, the

writ petition was to be filed on 20th November, 2001. By an interim order

made on 21.11.2001, the High Court directed rule to issue and hearing to

take place peremptorily on 27th November 2001 as the first item on board.

The pleadings were directed to be completed on or before 26th November,

2001. The High Court also directed:-

"xxx xxx xxx xxx

3. The Authority who has invited objections pursuant

to the notification issued under section 3 of the

Bombay Provincial Municipal Corporations Act, 1948,

shall give hearing to all the objectors. After hearing all

the objections (who remain present and willing to

appear before the Authority on the date given), it is

understood that hearing of objections need not be

adjourned on any count. In case the hearing of

objection is concluded on 26th November, 2001, the

authority concerned shall not take any decision.

4. Petition is to be heard finally on 27th November,

2001.

xxx xxx xxx xxx

6. All further actions in the matter, will be subject

to final outcome of this petition."

In view of the abovesaid interim order passed by the High Court, the

State Government has not taken any final decision in the matter. The

process of constitution of Municipal Corporation was therefore stalled.

However in-between the State Election Commission had announced

elections for the constitution of the next Municipal Council being held on

9th December, 2001, which elections were held as announced and the newly

elected Municipal Council has assumed office on 17.12.2001, soon on the

expiry of the term of the preceding Municipal Council and such new

Municipal Council is in place as on the day.

The writ petition was heard by a division Bench of the High Court

and disposed of by the impugned judgment dated 10/11.12.2001. The writ

petition has been allowed and the two sets of notifications/proclamations

dated 16.10.2001 and 15.11.2001 in respect of the Municipal Council,

Jalgaon have been directed to be quashed and set aside. Soon on the

pronouncement of judgment, the learned counsel for the State of

Maharashtra made an oral application for staying the operation of the

judgment which prayer was refused by the High Court on the ground that

the election to the Municipal Council, Jalgaon had already been held, the

results announced and the elected body was scheduled to assume office on

17.12.2001 and therefore there was no justification for staying the operation

of the judgment.

A perusal of the judgment of the High Court shows that in substance

four grounds have prevailed with the High Court for granting the relief to

the writ petitioners: firstly, that the constitutional scheme of Part IXA of the

Constitution contemplates the Municipal Council being taken over and

succeeded by a Municipal Corporation without any hiatus in-between and

as the term of the then existing Municipal Council was coming to an end on

16.12.2001 while the State Government/State Election Commission had not

taken any steps for constitution of new Municipal Corporation so as to be

in place and in existence ready to take over from the Municipal Council as

its successor, the same was subversive of the spirit of Part IXA of the

Constitution which contemplates the areas being administered by a

Municipality (as defined in clause (e) of Article 243P as an institution of

self government constituted under Article 243Q); the hiatus would result in

administrator necessarily and per force of the events stepping in and taking

over the Municipal Council; secondly, the census figure of August, 2001 on

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which was founded the action of the State Government were only

"provisional" and not final and hence the action was premature; thirdly, the

population of the area was denied an effective opportunity of raising

objections in view of the set of proclamations dated 15.11.2001 curtailing

the period appointed by set of proclamations dated 16.10.2001; the action

was vitiated by throttling of the principles of natural justice, the observance

whereof was statutorily mandated, and lastly, there was no consultation

with Municipal Council as contemplated by proviso to sub-Section (1) of

Section 6 of M.R. Municipal Councils Act.

The submissions before this Court made with forensic ability and

precision by the learned senior counsel and counsel for the parties centered

around the four issues projecting from the abovesaid four findings of the

High Court. We would take up each one of the said issues seriatim for

consideration. Let the relevant statutory provisions, which shall be required

to be referred to, be now set out:

The Maharashtra Municipal Council Act, 1965

"2. Definitions.

In this Act, unless the context otherwise

requires,__

xxx xxx xxx xxx

(24) "municipal area" means the territorial area

of a Council or a Nagar Panchayat.

3. Specification of areas as smaller urban areas.

(1) A Council for every municipal area existing

on the date of coming into force of the Maharashtra

Municipal Corporations and Municipal Councils

(Amendment) Act, 1994 specified as a smaller urban

area in a notification issued under clause (2) of article

243-Q of the Constitution of India in respect thereof,

shall be deemed to be a duly constituted Municipal

Council known by the name .

Municipal Council.

(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 local area as a smaller urban area:

Provided that no such area shall be so specified

as a smaller urban area unless the State Government,

after making such inquiry as it may deem fit, is

satisfied that,__

(a) the population of such area is not less than

25,000; and

(b) the percentage of employment in non-

agricultural activities in such area is not less than

thirty-five per cent.

(2A) For every smaller urban area so specified

by the State Government under sub-section (2), there

shall be constituted a Municipal Council known by the

name . Municipal Council;

(3) Before the publication of a notification

under sub-section (2), the State Government shall

cause to be published in the Official Gazette, and also

in at least one newspaper circulating in the area to be

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specified in the notification, a proclamation

announcing the intention of Government to issue such

notification, and inviting all persons who entertain any

objection to the said proposal to submit the same in

writing with the reasons therefor to the Collector of the

District within two months from the date of the

publication of the proclamation in the Official Gazette.

Copies of the proclamation in Marathi shall also

be posted in conspicuous places in the area proposed to

be declared as a municipal area.

(4) The Collector shall, with all reasonable

despatch, forward any objection so submitted to the

State Government.

(5) No such notification as aforesaid shall be

issued by the State Government unless the objections,

if any, so submitted are in its opinion insufficient or

invalid.

6. Alteration of the limits of a municipal area.

(1) Subject to the provisions of sub-section (2)

of section 3, the State Government may by notification

in the Official Gazette__

(a) alter the limits of a municipal area so as

to include therein or to exclude therefrom such

local area as may be specified in the

notification;

(b) amalgamate two or more municipal areas

so as to form one municipal area;

(c) split up any municipal area into two or

more municipal areas;

(d) declare that the whole of any local area

comprising a municipal area shall cease to be a

municipal area;

Provided that, no such notification shall be

issued by the State Government under any of the

clauses of this sub-section without consulting the

Municipal Council or Councils and other local

authorities concerned.

(2) Prior to the publication of a notification

under sub-section (1), the procedure prescribed in sub-

sections (3) (4) and (5) of section 3 shall mutatis

mutandis be followed."

Bombay Provincial Municipal Corporations Act, 1949

"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 (2) 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

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"The Municipal Corporation of the City of . . . . . . . .";

(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 provisions 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, bye-laws or

forms made, issued, imposed or granted under this Act

or any other law, 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 condition of previous

publication.

5. Constitution of Corporation.

(1) Every Corporation shall, by the name of "The

Municipal Corporation of the City of . . . . . . . . .", be a

body corporate and have perpetual succession and a

common seal and by such name may sue and be sued.

(2) Each Corporation shall consist of, __

(a) such number of councillors, elected directly at

ward elections, as is specified in the table

below:-

TABLE

Population

Number of Councillors

(i)

Above 3 lakhs and

upto 6 lakhs

The minimum number of

elected councillors shall be 65.

For every additional population

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of 15,000 above 3 lakhs, one

additional councillor shall be

provided, so however that the

maximum number of elected

councillors shall not exceed 85.

(ii)

Above 6 lakhs and

upto 12 lakhs

The minimum number of

elected councillors shall be 85.

For every additional population

of 20,000 above 6 lakhs, one

additional councillor shall be

provided, so however, that the

maximum number of elected

counsillors shall not exceed

115.

(iii)

Above 12 lakhs and

upto 24 lakhs

The minimum number of

elected councillors shall be 115.

For every additional population

of 40,000 above 12 lakhs, one

additional councillor shall be

provided, so however, that the

maximum number of elected

counsillors shall not exceed

145.

(iv)

Above 24 lakhs

The minimum number of

elected councillors shall be 145.

For every additional population

of 1 lakh, one additional

councillor shall be provided so

that the maximum number of

elected counsillors shall be 221.

(b) such number of nominated councillors not

exceeding five, having special knowledge or

experience in Municipal Administration to be

nominated by the Corporation in such manner

as may be prescribed;

(3) The State Election Commission shall, from time

to time, by notification in the Official Gazette, specify

for each City the number and boundaries of the wards

into which such City shall be divided for the purpose

of the ward election of councillors so that, as far as

practicable, all wards shall be compact areas and the

number of persons in each ward according to the latest

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census figures shall approximately be the same. Each

of the wards shall elect only one councillor:

Provided that, no notification issued under sub-

section (3), whether before or after the commencement

of the Maharashtra Municipal Corporations, Municipal

Councils, Nagar Panchayats and Industrial Townships

(Third Amendment) Act, 1995, shall have effect

except for the general election held next after the date

thereof and for subsequent elections.

Provided also that, before any notification is

issued under sub-section (3), a draft thereof shall be

published in the Official Gazette, and in such other

manner as in the opinion of the State Election

Commissioner is best calculated to bring the

information to the notice of all persons likely to be

affected thereby, together, with a notice specifying the

date on or before which any objections or suggestions

will be received, and the date after which the draft will

be taken into consideration."

Q.1. Whether any hiatus between abolition of Municipal Council and

constitution of Municipal Corporation is violative of Constitution Part

IXA?

The High Court has held that keeping in view the object and purpose

of enacting Parts IX and IXA of the Constitution which intended to achieve

the Gandhian dream of local self-government it is necessary that before the

term of Municipal Council comes to an end the Municipal Corporation

should be available and in existence so as to take over the administration of

the urban area from the Municipal Council. There should be no

interregnum or hiatus between the dissolution of the Municipal Council

and the date of Municipal Corporation coming into existence; for such

hiatus would necessarily involve a government officer being appointed an

administrator and that will be subversive of the principles of democracy

and local self-governance. The learned counsel for the writ petitioner-

respondents placed reliance on the provisions of Article 243U (3)(a) which

mandates that an election to constitute a 'municipality' shall be completed

before the expiry of its duration specified in clause (1) of Article 243U

which is 5 years from the date appointed for its first meeting and no longer.

A municipality for the purpose of Part IXA is defined by clause (e) of

Article 243P as meaning an institution of self-government constituted under

Article 243Q. Article 243Q speaks of such three institutions, namely,

Nagar Panchayat, Municipal Council and Municipal Corporation. All the

three are included within the definition of 'municipality'. The learned

counsel for the respondents submitted that the steps for constitution of

Municipal Corporation should be planned and scheduled, well in advance

of time of the date by which the term of existing Municipal Council is

coming to an end so as to see that successor municipality, i.e. Municipal

Corporation proposed to be constituted, is ready to take over from the

municipality, i.e. Municipal Council proposed to be abolished without there

being any hiatus in-between necessitating the appointment of an

administrator to take charge in the interregnum of the two events. The

learned counsel for the appellants submitted on the other hand that the

process of conversion of an area from Municipal Council to Municipal

Corporation would necessarily involve a hiatus which is an unavoidable

necessity. Both the learned counsel read out several provisions of Part IXA

of the Constitution and the two relevant statutes trying to cull out the

underlying scheme each in support of their respective submissions.

Having heard the learned counsel for the parties at length on this

aspect we are of the opinion that the said hiatus is an unavoidable event

which must take place in the process of conversion of Municipal Council

into a Municipal Corporation. Reliance on Article 243U by the learned

counsel for the respondents in this context is misconceived. The use of

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expression 'a municipality' in sub-Article (3) of Article 243U in the

context and in the setting in which it is employed suggests and means the

duration of the same type of municipality coming to an end and the same

type of successor municipality taking over as a consequence of term of the

previous municipality coming to an end. Article 243U cannot be applied to

a case where the area of one description is converted into an area of another

description and one description of municipality is ceased by constituting

another municipality of a better description. Article 243U(3) cannot be

pressed into service to base a submission on that an election to constitute a

municipal corporation is required to be completed before the expiry of

duration of a municipal council.

The constitution of Municipal Corporation would require

notification of larger urban area and a Municipal Corporation to govern it.

The area shall have to be divided into wards with the number of corporators

specified and reservations made. The Corporation would need to nominate

councillors. The territorial limits may need to be altered. The State

Election Commission cannot conduct election without specifying numbers

and boundaries of wards. New rules, bye-laws etc. shall need to be framed

and municipal tax structure may need to be recast. The statutory provisions

do not contemplate a situation where the same area may be called a smaller

and larger area simultaneously and process of constitution of Municipal

Corporation being commenced and completed though the Municipal

Council continues to exist. Such an action would result in anomaly and

confusion if not chaos. Care has been taken by the Legislature by

engrafting Section 452A into the body of BMPC Act by Bombay Provincial

Municipal Corporations (Amendment and Validation) Act, 1995 (at

Maharashra Act 4 of 1995) which reads as under:-

"452A. Power of State Government to appoint

Government officer or officers to exercise

powers and perform functions and duties of

Corporation.

(1) For every Municipal Corporation deemed to

have been constituted or constituted for a larger urban area

under sub-section (1) or sub-section (2) as the case may be, of

section 3, the State Government may appoint a Government

officer or officers to exercise all the powers and to perform all

the functions and duties of a Corporation under this Act :

Provided that an Administrator appointed by the State

Government before the 31st May 1994 under the provisions of

this Act, as it existed immediately before the 31st May 1994,

for a Municipal Corporation deemed to have been constituted

for a larger urban area under sub-section (1) of section 3 who

is in office on the said date, shall be deemed to be the

Government officer appointed under this sub-section to

exercise all the powers and perform all the functions and

duties of the said Corporation under this Act.

(2) The officer or officers appointed under sub-

section (1) shall hold office until the first meeting of the

Corporation or for a period of six months from the date of

specification of an area as a larger urban area, under sub-

section (2) of section 3, whichever is earlier :

Provided that the Administrator deemed to have been

appointed as the Government officer under sub-section (1)

shall hold office until the first meeting of the Corporation.

(3) The officer or officers appointed or deemed to

have been appointed under sub-section (1) shall receive from

the Municipal Fund such pay and allowances as may be

determined, from time to time, by the State Government."

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The abovesaid provision was engrafted based on an experience

learnt by the State Government from the stalemate created in the city of

Kalyan where the administrator had already continued to be in office for

more than the permissible period and the Municipal Corporation of the city

of Kalyan was yet to be constituted. The State Legislature also kept in

view the provisions of Part IXA of the Constitution and utilized the

opportunity for drafting Section 452A in such manner as would take care of

the stalemate created in the city of Kalyan and also of situation which was

likely to creep in in any area sought to be converted from Municipal

Council into a Municipal Corporation. We are not herein concerned with

the city of Kalyan. The relevant part of Statement of Objects and Reasons

is extracted and reproduced hereunder:

"3. The said Act, as amended by the Maharashtra

Municipal Corporations and Municipal Councils

(Amendment) Act, 1994 (Mah. XVI of 1994), for giving

effect to the provisions of Part-IXA of the Constitution of

India incorporated in the Constitution, by the Constitution

(Seventy-fourth Amendment) Act, 1992, -

(a) does not provide for appointment or

continuance of an Administrator after the expiry of the

normal term of office of Councillors; and

(b) provides for constitution of duly elected

corporation in consonance with the said Constitutional

provisions relating to composition, reservation, etc.

and further provides that the elections to the Municipal

Corporations shall be conducted in the prescribed

manner by the State Election Commissioner appointed

under Article 243-K of the Constitution.

4. The requisite reservation rules prescribing the

number of seats to be reserved for the Scheduled Castes,

Scheduled Tribes, Other Backward Classes and Women and

the manner of rotation of such reserved seats for holding

elections to the Municipal Corporation were framed by the

State Government in consonance with the Constitutional

provisions. However, pending holding of election for the

Corporations whose terms had already expired and where, the

Administrator appointed had been continued, it was necessary

to take power to the State Government to resolve the legal

and the procedural stalemate. The Government of

Maharashtra therefore considered it expedient to suitably

amend the Bombay Provincial Municipal Corporations Act,

1949, providing for appointment of Government officer or

officers to exercise the powers and to perform all the

functions and duties of the Corporation until the first meeting

of the duly elected and constituted Corporation or for a period

of six months from the 31st May, 1994, whichever was earlier.

It was also considered expedient to make a deeming provision

providing for continuance of an Administrator appointed for a

Municipal Corporation who was in office on the 31st May,

1994, as the officer appointed under this Act for managing the

affairs of the Corporation till the first meeting of such

Corporation as well as for validating the acts or things done

by the Administrator who was continued in the office to

manage the affairs of the Municipal Corporation of the City

of Kalyan, during the period commencing from the date on

which the aggregate period of ten years of his appointment

expired and ending on the 31st May, 1994."

(See Maharashtra Gazette dated March 30, 1995 Part V pages

11-13)

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Initially an Ordinance was promulgated on the 15th December, 1994

and replaced by the Amendment Act which was published in the

Maharashtra Gazette dated April 20, 1995 (Part IV, pp. 83-85).

We do not see any merit in the submission that the Administrator

once appointed shall continue to stretch and unreasonably extend his term

of office and may be instrumental in obstructing the elections being held.

The law does not permit holding of an office as an Administrator by any

officer/officers beyond the first meeting of the Corporation or a period of

six months from the date of specification of an area as a larger urban area.

Thus, the maximum period for which an Administrator may be in office

shall be six months and within this much period the State Government and

the State Election Commission shall positively bring the Municipal

Corporation in existence so as to take over the administration from the

Administrator.

Q.2 The affect of census figures published being called 'provisional'?

We see no merit in the submission of the learned counsel for the writ

petitioners-respondents that the figures of census published on 13.8.2001

by the Director of Census Operation, Maharashtra were only provisional

and could not have been acted upon unless the final population totals were

published. A decision of constituting a Municipal Corporation so as to

replace a Municipal Council is dependent on the figure of population of the

urban area. Neither the Constitution nor any other relevant provision of

any statute prescribes or defines the source or material wherefrom the State

Government shall form an opinion as to the population existing in any

urban area. The only requirement is of the population crossing the bench

mark of three lakhs. The correctness of the figure of population in Jalgaon

urban area having reached the figure of 3,68,579 as on 13.8.2001 as

published by the Director of Census Operation Maharashtra in the

document 'Provisional Population Totals' is not disputed by anyone. So

long as the correctness of the fact that the population had crossed the bench

mark of three lakhs __and thereby provided the requisite foundation for the

State Government to take a decision of constitution a Municipal

Corporation by treating Jalgaon as a larger urban area __ cannot be disputed

much less doubted. So also no act, rule or any instruction issued by the

Government of India or any competent authority has been brought to our

notice which contemplates a 'Final Population Total' being published after

the publication of the so-called provisional list. The submission that the

State Government should have awaited for the publication of a 'Final

Population Totals' and should not have acted on provisional totals is wholly

devoid of any merit and the High Court should not have upheld the

submission to find fault with the decision of the State Government.

Q.3. Whether the population of Jalgaon was denied an effective

opportunity of raising objections and hence the principles of natural justice

were violated?

In the opinion of the High Court, the notifications dated 16.10.2001

appointed a period of 60 days for preferring objections against the proposed

constitution of Municipal Corporation in place of Municipal Council. This

period of 60 days would have expired on 15th December, 2001. However,

in between, on 15.11.2001 when a period of only 30 days had expired, an

ordinance was promulgated whereby the period of 60 days appointed under

Section 6(1)(d) of the Act was reduced from 60 days to 30 days. The

ordinance was followed by two notifications amending the earlier

notifications dated 16.10.2001 and limiting the period for preferring the

objections upto 21.11.2001. The notification is required to be published not

only in the Official Gazette but also in the local newspaper. Though the

notification was published in the Official Gazette dated 15.11.2001,

however, in the local newspaper the publication took place on 19.11.2001

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and the time for preferring the objections expired on 21.11.2001. The High

Court held that the opportunity of hearing statutorily mandated to be

afforded to the people of Jalgaon was drastically curtailed, and in the light

of the subsequent notification, for all practical purposes the effective

opportunity available was just two days, i.e. commencing 19.11.2001 and

expiring 21.11.2001 which cannot, in the facts and circumstances of the

cases, be said to be effective opportunity and, therefore, the mandate

spelled out by unamended sub-Section (3) of Section 3 of MRMC Act was

violated.

The finding as to violation of principles of natural justice arrived at

by the High Court is founded on two bases: (i) the time of 60 days

originally appointed for preferring the objections could not have been

curtailed; (ii) looking at the drastic consequences involved on the

population of the urban area, by converting the Municipal Council into a

Municipal Corporation, the effective opportunity for preferring objections

having been made available only for two days i.e. between 19th and 21st

November, 2001 was in fact no opportunity in the eye of law. The

submission on which these findings are based appears to be attractive but

on a little probe and tested in the correct perspective the fallacy in the

submission is exposed.

The requirement of inviting all persons who entertained any

objection to the proposal of a municipal area ceasing to be so and being

classified as a larger urban area to be administered by a Municipal

Corporation as required by sub-Section (3) of Section 3 read with Section 6

of the MRMC Act has to be complied with for two reasons: firstly, it is

recognition by statute of the principles of natural justice and, secondly, it is

mandatory procedural requirement which must be satisfied as a pre-

condition for the validity of subsequent final decision on the principle that

if the statute requires a particular thing to be done in a particular manner

then it shall be done either in that manner or not at all.

It is a fundamental principle of fair hearing incorporated in the

doctrine of natural justice and as a rule of universal obligation that all

administrative acts or decisions affecting rights of individuals must comply

with the principles of natural justice and the person or persons sought to be

affected adversely must be afforded not only an opportunity of hearing but

a fair opportunity of hearing. The State must act fairly just the same as

anyone else legitimately expected to do and where the State action fails to

satisfy the test it is liable to be struck down by the Courts in exercise of

their judicial review jurisdiction. However, warns Prof. H.W.R. Wade that

the principle is flexible. "The judges, anxious as always to preserve some

freedom of manoeuvre, emphasise that 'it is not possible to lay down rigid

rules as to when the principles of natural justice are to apply: nor as to their

scope and extent. Everything depends on the subject-matter'. Their

application, resting as it does upon statutory implication, must always be in

conformity with the scheme of the Act and with the subject-matter of the

case. 'In the application of the concept of fair play there must be real

flexibility'. There must also have been some real prejudice to the

complainant: there is no such thing as a merely technical infringement of

natural justice." (Administrative Law, Wade & Forsyth, Eighth Edition,

2000, pp.491-492).

The learned authors quote from two authorities in support of

preserving flexibility. In Russell Vs. Duke of Norfolk, [1949] 1 All ER

109, 118, Tucker LJ opined, "the requirement of natural justice must

depend on the circumstances of the case, the nature of the inquiry, the rules

under which the tribunal is acting, the subject-matter to be dealt with, and

so forth". In Lloyd Vs. McMahon, [1987] AC 625, 702, Lord Bridge stated

in his speech, "the so-called rules of natural justice are not engraved on

tablets of stone. To use the phrase which better expresses the underlying

concept, what the requirements of fairness demand when any body,

domestic, administrative or judicial, has to make a decision which will

affect the rights of individuals depends on the character of the decision-

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making body, the kind of decision it has to make and statutory or other

framework in which it operates. In particular, it is well-established that

when a statute has conferred on anybody the power to make decisions

affecting individuals, the courts will not only require the procedure

prescribed by the statute to be followed, but will readily imply so much and

no more to be introduced by way of additional procedural safeguards as

will ensure the attainment of fairness." (Administrative Law, ibid, at p.493)

The caution of associating rules of natural justice with the flavour of

flexibilities would not permit the Courts applying different standards of

procedural justice in different cases depending on the whims or personal

philosophy of the decision maker. The basic principles remain the same;

they are to be moulded in their application to suit the peculiar situations of

a given case, for the variety and complexity of situations defies narration.

That is flexibility. Some of the relevant factors which enter the judicial

process of thinking for determining the extent of moulding the nature and

scope of fair hearing and may reach to the extent of right to hearing being

excluded are: (i) the nature of the subject-matter, and (ii) exceptional

situations. Such exceptionality may be spelled out by (i) need to take

urgent action for safeguarding public health or safety or public interest, (ii)

the absence of legitimate exceptions, (iii) by refusal of remedies in

discretion, (iv) doctrine of pleasure such as the power to dismiss an

employee at pleasure, (v) express legislation. There is also a situation

which Prof. Wade & Forsyth terms as "dubious doctrine" that right to a fair

hearing may stand excluded where the Court forms an opinion that a

hearing would make no difference. Utter caution is needed before bringing

the last exception into play. (Administrative Law, ibid, at pp.543-544)

It is true that sub-Section (3) of Section 3 of MRMC Act prescribes

for inviting objections by affording two months' time and that was done on

16.10.2001. However, the statutory provision was amended by Ordinance

and the period of 'two months' stood substituted by a period of 'not less

than 30 days'. The statutory provision has to be read as amended. The

petitions filed before the High Court did not lay any challenge to the vires

of the ordinance either on the ground of un-reasonability or on the possible

ground of curtailing a vested right to prefer objections or on the ground of

un-reasonability. In the absence of any challenge having been laid, the

constitutional validity of the amendment cannot be gone into. The validity

of the action i.e. the notice inviting objections has to be tested in the light

of

the statutory requirement that the period of notice statutorily prescribed is

of a duration of 'not less than 30 days' which in the case at hand it is. Thus

the notification dated 16.10.2001, as amended by the subsequent

notification dated 15.11.2001, satisfies the requirement of the principles of

natural justice as also of the procedure statutorily prescribed.

The date on which the subsequent notification dated 15.11.2001 was

published in the government gazette and on 19.11.2001 when the same was

published in local newspaper, a period of 30 days or more than 30 days had

already elapsed and still some time i.e. a period of 6 days by reference to

gazette publication dated 15.11.2001 and 2 days by reference to newspaper

publication dated 21.11.2001 was still available for preferring objections.

Let a totality of the situation be assessed in the backdrop of the facts and

circumstances of the case. The Municipal Council, representative of the

entire population of Jalgaon municipal area had collected and consciously

discussed the likely objections against the proposal and forwarded the same

for the consideration of the State Government. In addition, 239 objections

had already been preferred and reached the State Government. There is no

grievance raised before the High Court by anyone that there is yet another

objection to the proposal which could have been raised but could not be

raised on account of curtailment in the period inviting objections. Not one

person has come forward to say that he proposed to prefer an objection but

was denied the opportunity of preferring objection on account of the period

having been abruptly curtailed. There is not one objection which may not

have received consideration at the hands of the State Government solely

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because it was preferred within 60 days calculated from 15.11.2001 but

beyond 21.11.2001.

So far as the objections preferred by the Municipal Council

collectively and the individual 239 objectors are concerned, no one has

alleged that anyone of the factors contemplated as relevant by Article 243-

Q proviso of the Constitution was absent or non-existent. None has

disputed the correctness of the population figure as totalled by the census.

The contentions raised are that the development works initiated by the

Municipal Council may be adversely affected or that the taxes would

increase while the quantum of State's financial aid or grant may be reduced.

Though it is for the State Government to apply its mind to the relevance

and weight of the objections preferred still we may note the submissions

made by the learned counsel for the appellant-State Government that a mere

change in the constitution of the local self-government does not necessarily

entail discontinuance of development projects and there is no reason to

apprehend, that they would not be continued. A change in governance is

involved at every election though the administration continues with

Municipal Council. At the time of an election certain development works

would be pending in progress which would naturally be taken over by the

successor Municipal Council. Just as any new Municipal Council would

take over the on-going projects initiated by the predecessor Municipal

Council so also a Municipal Corporation newly brought into being shall

take over the continuing projects of previous Municipal Council. Every

change in mode of governance needs some readjustments. Need for

switching over from Municipal Council to Municipal Corporation mode of

administration is occasioned by growth of population and prosperity in any

particular urban area. People share the prosperity and so must be prepared

to pay the additional price by way of additional taxes, submitted the learned

counsel for the State Government and we found substance therein.

Whosoever wished to prefer the objections would not necessarily

wait for the last day though he has a right to do so. The amendment

ordinance and the notifications dated 15.11.2001 issued thereunder did not

abruptly close the invitation to objections, only the period was shortened.

Those, over and above the 239 who had already preferred objections, could

still have preferred the objections if they intended to do so. On the totality

of the facts and circumstances of the case, we are of the opinion that neither

the principles of natural justice have been violated nor is there any breach

committed of the procedural requirements prescribed by Section 3(3) read

with Section 6 of the MRMC Act as amended by the ordinance.

The statement accompanying the Ordinance spells out the need for

its promulgation. General elections to four (including Jalgaon) out of the

seven Municipal Councils were scheduled to be held in the first week of

December, 2001. The term of those Municipal Councils was coming to an

end in the month of December 2001 itself. The new Municipal Councils

were mandatorily required to be constituted before the expiry of the term of

the existing Councils. If the proposal of the Government to establish

Municipal Corporations in those four areas was not finalized before the

expiry of the said term of the existing Councils the State Government

would have been required to undertake the elections which would have

been involved substantial expenditure of public money and wastage of time

and energy of government machinery all avoidable. It was this

consideration of public interest which persuaded the State Government to

curtail the period of two months to such period not being less than 30 days

so that decision on constitution of Municipal Corporation, either way but

finally could be taken earlier and at an appropriate time and to proceed

thereafter either with Municipal Council elections or the process of

constituting Municipal Corporation consistently with the decision taken.

One of the principles of good governance in a democratic society is that

smaller interest must always give way to larger pubic interest in case of

conflict. The amendment resulting into curtailing of the period appointed

for inviting objections though restricted the period, by shortening it to the

extent necessary in the then circumstances, it was done only for achieving

larger public interest. No fault can be found therewith. The period

allowed for inviting objections conforms to the statutory provision and is

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not shown to have caused any prejudice to any one.

Q.4. Want of consultation with Municipal Council __ effect?

The learned counsel for the appellants submitted that steps for

constitution of Municipal Corporation fell within the purview of Section 3

of BPMC Act which requires the specification of larger urban area, and

constitution of Municipal Corporation therein, to be preceded by a

notification subject to the condition of previous publication. Consultation

is not one of the requirements of Section 3 and therefore the High Court

went wrong in holding that for want of consultation, the process of

constitution of Municipal Corporation of the city of Jalgaon was vitiated.

With this submission we do not agree. The Jalgaon Municipal Council was

already in existence, Jalgaon being smaller urban area. It was proposed to

be converted into a larger urban area. This process would involve abolition

of 'municipal area' as defined in within the clause (24) of Section 2 of M.R.

Municipal Council Act. Any of the events provided by clauses (a) ,(b), (c)

and (d) of sub-Section (1) of Section 6 must satisfy the requirement of

consulting the Municipal Council provided for by provisio to sub-Section

(1) before issuing the notification and before that, notification should also

follow the procedure prescribed by Section 3 mutatis mutandis. Section

6(1)(d) covers within its scope any event, the declaration whereof has the

effect of the whole of any area comprising a municipal area ceasing to be a

municipal area. Thus conversion of Jalgaon Municipal Council to

Municipal Corporation involves not only specification of large urban area

and constitution of Municipal Corporation of the city of Jalgaon, it also

involves the whole of the local area comprising the municipal area of

Jalgaon ceasing to be a municipal area with effect from the date of change.

Therefore consulting the Municipal Council is mandatory.

However, no provision of law has been brought to our notice which

requires even a proposal for constitution of Municipal Corporation cannot

be published without consultation. Consultation must take place at any one

stage before the finalisation of the proposal. By the time the writ petitions

came to be filed before the High Court all that had taken place was the

publication of notification proposing to constitute Municipal Corporation of

the city of Jalgaon. Objections were invited. The final decision was yet to

be taken which was stayed by the High Court. The requirement of

consultation could have been satisfied at any time before publishing the

final notification. The High Court was not right in finding fault with the

process of constitution of the Municipal Corporation of the city of Jalgaon

for want of consultation at the stage to which it had reached when the writ

petitions came to be filed in High Court.

For the foregoing reasons we are of the opinion that the judgment of

the High Court cannot be sustained on any of the grounds upheld by it.

It is unfortunate that the litigation stalled the process of Municipal

Corporation of the city of Jalgaon being constituted. The expenditure, the

time and the energy of State machinery which was intended to be avoided

by the State Government came to be wasted and the elections had to be held

for constituting the successor Municipal Council. As on the day the

Municipal Council is in place. Inasmuch as it has been held that the

process for constituting the Municipal Corporation of the city of Jalgaon in

place of Municipal Council does not suffer from any infirmity upto the

stage to which it has proceeded, the State Government may now take a final

decision and issue final notification depending on the formation of its

opinion. The process of consultation within the meaning of proviso to

Section 6(1) of M.R. Municipal Council Act shall now be completed if not

already done. Needless to say the objections preferred by the Municipal

Council of Jalgaon and 239 other objections shall be considered and

disposed of in accordance with law if not already done.

The appeals are allowed. The impugned judgment of the High Court

is set aside. The writ petitions filed before the High Court are directed to be

dismissed.