Bombay High Court
Gram Panchayat And Ors. vs State Of Maharashtra And Ors. on 24 October, 2007
Equivalent citations: 2008(1)MHLJ603
Author: R.C. Chavan
Bench: A.H. Joshi, R.C. Chavan
JUDGMENT R.C. Chavan, J.
1. Gram Panchayat Bamni, District Nagpur, takes exception by this petition to Notifications dated 4-9-1987 (10-9-1987?) issued under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as "Maharashtra Municipalities Act") and the Bombay Village Panchayats Act, whereby the Government of Maharashtra sought to include certain lands from Village Bamni in the Kalmeshwar Municipal Council and exclude the same from the limits of Gram Panchayat Bamni. The Government issued a Notification on 1-1-1988 rectifying earlier notification under Section 4 of the Bombay Village Panchayats Act, excluding only selected survey numbers from the area of Gram Panchayat, Bamni, since the earlier notification erroneously referred to the entire village.
2. The petition filed on 28-10-1987 was admitted on 22-6-1988 and status quo as regards recovery of taxes was ordered to be maintained. By an order dated 16-10-2000, the petitioner Gram Panchayat was allowed to recover property taxes from a textile mill which had been set up on the lands merged in Kalmeshwar Municipal Council, and the Municipal Council was permitted to recover taxes for water supply, street lighting and other municipal facilities.
3. According to the petitioners, villagers of Bamni allowed their lands to be acquired for industrialization of the area. However, Kalmeshwar Municipal Council, which has been in existence for over 100 years, moved the Government to include the areas in the Municipal limits in order to boost its revenues. Respondent No. 1 Government published a Notification on 5-6-1987 in a local vernacular daily indicating the intention to include lands in Bamni Village in Kalmeshwar Municipal Council and called for objections, if any. The Notification also referred to an earlier publication in 1979 in a vernacular daily, not locally published, as also its display within the Municipal limits. This earlier Notification was not noticed by the petitioners. However, on 9-3-1980, the Block Development Officer had apprised the Gram Panchayat of Government's intention and had asked the Gram Panchayat to call a meeting to approve, or communicate objections to this proposal and to forward the same to the Block Development Officer by 8-4-1980. Accordingly, on 7-4-1980, the Gram Panchayat resolved to oppose the proposal for reasons stated in the resolution and informed the Block Development Officer accordingly on 8-4-1980. This was reiterated by a resolution in a meeting dated 20-4-1980.
4. On 12-1-1981, a Deputy Secretary to Government informed the petitioners that the Notification was first published on 7-11-1979 inviting objections within two months, and since the petitioners for the first time raised objection only on 26-5-1980, the objection was meaningless. Even after publication of Notification on 5-6-1987 in a local Marathi daily, the petitioners raised an objection on 16-6-1987 within stipulated period of two weeks, but in vain. Protests of the petitioners thereafter went unheeded. The petitioners assailed the action of the respondent-Government on the ground of failure to comply with requirements of Section 6 of the Maharashtra Municipalities Act, to consult the petitioners.
5. The petitioners contend that the action of the Government would make Gram Panchayat, Bamni bankrupt. The petitioners also assail the Notification on the ground that it discriminates between Village Dahegaon, which too is 3 Kms. from Kalmeshwar (as is Village Bamni), but has been spared of merger in Kalmeshwar Municipal Council.
6. During the pendency of the petition, as a result of parleys amongst the parties, revised proposals were prepared and the petitioners were to withdraw the petition as a result of settlement arrived at before the authorities, but Kalmeshwar Municipal Council allegedly backed out, and the compromise fizzled.
7. In the written submissions filed on 25-4-1988 on behalf of respondent No. 3, it was stated that the impugned Notification dated 4-9-1987 was issued after complying with all the requirements of law, including calling objections and considering them. The Notification dated 3-11-1979 had also been published in Government Gazette, apart from being published in Daily "Loksatta".
8. In course of hearing, the learned AGP was asked to make available, for perusal of the Court, the entire record from the Government pertaining to the subject. The record was stated to be destroyed as per the rules after lapse of ten years.
9. We have heard the learned Advocate for the petitioner and learned Additional Government Pleader for respondents. It was submitted on behalf of the petitioner that altering boundaries of a local body would entail going through the procedure prescribed in this behalf under Section 4(2) of the Bombay Village Panchayats Act and Section 6 of the Maharashtra Municipal Councils Act. In Jalgaon Municipal Council v. State of Maharashtra reported at 2002 (3) ALL MR 500, on which reliance was placed, it was held by a Division Bench of this Court, among other things, that altering areas of a local body was an extended legislative function. In Village Panchayat Dharna Wadhana v. Commissioner, Nagpur Division reported at 1967 Mh.L.J. 351 and Laxman v. State of Maharashtra reported at 1990 Mh.L.J. 574, Gram Sudhar Samiti v. Gram Panchayat reported at which pertain to alteration of boundaries of a Village Panchayat, this Court underlined the necessity for consulting the persons affected. There can be no doubt that whenever boundaries of a local body are required to be altered, consultation with bodies likely to be affected would be necessary. Section 4(2) of Bombay Village Panchayats Act prescribes consulting the Gram Panchayat. However, it does not elaborate the procedure for consultation. Section 6 of the Maharashtra Municipalities Act on the other hand refers to procedure prescribed in Section 3 of the said Act which requires that before notifying a change the State Government shall publish (i) a Notification in official gazette, (ii) in a newspaper circulating in the area and (iii) by pasting copies in conspicuous areas prolonging its intentions.
10. In this case the intention of the State was made known first by a Notification published in official gazette on 3-11-1979. It has also been stated that the Notification was also published in a Marathi daily "Loksatta". The learned Advocate for the petitioner contended that publication of Notification in daily "Loksatta" was not adequate compliance to requirements of law since the said daily, at the relevant time, was not published from Nagpur. In our view place of publication cannot be the critical criterion. The question would be whether the daily had circulation in the area to be affected. Petitioner has placed no material to conclude that daily Loksatta was not having circulation in Nagpur district. As for display within the area proposed to be declared as Municipal area, suffice it to say that since the areas were all agricultural lands acquired for the purpose of textile mill, display in Kalmeshwar town should be held adequate compliance.
11. The question whether persons affected had notice of intentions of the Government is not left to speculation by petitioners themselves pointing to the correspondence after the first publication of Notification in 1979 and before the second publication in 5-6-1987.
12. The Block Development Officer/Tahsildar had also written vide communication dated 9-3-1980 to the petitioner Gram Panchayat to convene a meeting and to convey its decision by 8-4-1980. Accordingly on 7-4-1980 the petitioners resolved objecting to exclusion of the notified areas from its jurisdiction and their inclusion in Kalmeshwar Municipal Council. This was conveyed on 8-4-1980 to the authorities. Therefore, the objections of the petitioner, that publication of Notification in 1979 in daily Loksatta was not adequate compliance has to be rejected as inconsequential since they had availed opportunity of objecting.
13. The learned Advocate for the petitioner submitted that petitioner's objections were not at all considered by the Government as may be seen from letter dated 12-1-1981, a communication by Deputy Secretary for Government of Maharashtra, informing that the objections could not be considered as they were not submitted within stipulated time. Impugned Notification dated 10-9-1987 was then issued. The learned Advocate for the petitioner thereafter submitted that the impugned Notification obviously suffers from the deficiency of non-consideration of objections raised and rejecting them at threshold as raised after the prescribed period.
14. As rightly pointed out by the learned A.G.P. the letter dated 12-1-1981 (Annexure-IX to the petition) does not state that objection was not to be considered because it was received after the prescribed period. That is only one of the grounds. The letter recites that the objection was that amalgamation will put an obstacle in the way of development of Brahmni village and then concludes by observing that "the said contention does not carry any meaning". Therefore, it cannot be said that objection was not considered. It was considered and rejected, which the Government was entitled to do.
15. The learned Advocate for the petitioner next submitted that a compromise was attempted and parties and even reached some agreement during the pendency of petition. Also in terms of interim orders, petitioner has been recovering property tax on the disputed area for the last 20 yrs. and hence, in view of changed situation, the State be directed to have a fresh look at the matter. We are afraid that such a course may not be open. It is unfortunate that this lis was pending for 20 years. Practical realities require that when a petition is admitted an interim relief may have to be given. It does not alter the fact that the Court would be obliged to decide the petition sheerly on the basis of challenges raised. Intervening events may have to be considered only if they have a bearing on the challenges raised. Loss of revenue, in our view, cannot be a consideration for negating an action taken in exercise of extended legislative functions. The compromise which fizzled out too does not alter the situation. In any case executive is always alive to aspirations of people and has adequate authority to alter and re-alter boundaries and re-draw maps in response to public demand and demands of good governance. Therefore, our negativing the challenges raised in the petition does not foreclose further consideration.
16. In view of this, we hold that the petitioner has failed to establish that the impugned Notification dated 4-9-1987 or 10-9-1987 deserves to be quashed or set aside.
Petition is therefore dismissed. Rule is discharged. Interim orders are vacated.