Madhya Pradesh High Court
Rahul Sen vs The State Of Madhya Pradesh on 26 October, 2018
1
WP-25205-2018
THE HIGH COURT OF MADHYA PRADESH
WP-25205-2018
(Rahul Sen vs The State of Madhya Pradesh)
JABALPUR, DATED: 26-10-2018
Ms. Vandana Tripathi, Advocate for the petitioner.
Mr. Amit Seth, Government Advocate for the respondent/State.
The grievance of the petitioner is that the State Government has published draft Notification for carving out new District Niwari out of District Tikamgarh, when the proposal thereof was published in the Gazette on 13.07.2018. But, the objections received were not considered. Therefore, publication of the Notification carving out new district is illegal.
We do not find any merit in the argument raised.
The carving out of a district is a legislative act. In respect of legislative act, the pre-conditions for publication of the notification are required to be complied with. It is not an administrative decision which requires an order to be passed.
Similar question has been examined by this Court in Gyan Prakash Patel vs State of M.P. reported as 2018(2) M.P.L.J. 574, wherein it has been held :
18. In view of the above, it can be held that a legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases, whereas an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy. Legislation is the process usually operating in future, administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases. An adjudication, on the other hand, applies to specific individuals or situations. But, these are only a broad distinctions. The object of the rule, the reach of its 2 WP-25205-2018 application, the rights and obligations arising out of it, its intended effect on past, present and future events, its form, the manner of its promulgation are some factors which may help in drawing the line between legislative and non-legislative acts. The said factors have been applied for holding that the fixation of price under the provisions of the Essential Commodities Act or tariff under the Electricity Act, 2003, are legislative in nature. Such principles have been applied even in respect of the constitution of the Municipality or extension of its limits, the reference to such judgments is made hereinafter. The Hon'ble Supreme Court judgment in Tulsipur Sugar Co. Ltd. v. Notified Area Committee, (1980) 2 SCC 295, to return a finding that challenge to the creation of Notified Area Town Area on the ground that it was done without affording opportunity of hearing or filing of objections, is not sustainable. In the aforesaid case a Notified Area Committee was constituted in terms of Section 241 of the Punjab Municipal Act, 1911, which does not provide for any opportunity of hearing as is provided in Sections 4 to 7 of the Act.
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21. Thus, we are of the considered opinion that constitution of a Municipal Council and Nagar Parishad is a legislative function and the principles of natural justice would not be made applicable therein. The maxim audi alteram partem does not become applicable to the case by necessary implication. As per stand of the State Government, the respondents have taken into consideration the population of the area, as one of the consideration for constituting the Municipal Council or Nagar Parishad or a transitional area and in this regard a Notification dated 27-
12-2011 was also published and placed on record as Annexure-R/1. Still further, the challenge to same notification has remained unsuccessful on 01.10.2018 in Writ Petition No.18452/2018 (Narayan Singh Yadav vs State of M.P.).
In view thereof, we do not find any merit in the present writ petition. Dismissed.
(Hemant Gupta) (Atul Sreedharan)
Chief Justice Judge
vinod
Digitally signed by
VINOD VISHWAKARMA
Date: 2018.10.27
11:58:26 +05'30'