Punjab-Haryana High Court
Vee Kay Oils Pvt. Ltd. vs The State Of Punjab Through Its Chief ... on 15 February, 1994
Equivalent citations: (1994)107PLR234
JUDGMENT N.K. Kapoor, J.
1. This order shall dispose of CWP Nos. 6591 and 6592 of 1993 as questions of fact and law in both the writ petitions are identical. Facts are being taken from CWP No. 6592 of 1993.
2. Petitioner sought issuance of a writ of certiorari quashing notice dated 15.4.93, Annexure P-1, issued by the Executive Officer, Municipal committee, Ahmedgarh, vide which the petitioner was directed to pay octroi on the incoming goods/material as the factory of the petitioner now comes within the extended municipal limits of Ahmedgarh, on the ground that the same is illegal and without jurisdiction as neither the preliminary notification nor the final notification relate to the revenue estate of village Akbarpura wherein the factory of the petitioner is situate. Elaborating, the petitioner has averred that whole of the revenue estate of village Akbarpura falls outside the Municipal limit of Ahmedgarh. Even the preliminary notification dated 26.6.89 issued Under Section 5(1) of the Punjab Municipal Act did not make mention of village Akbarpura. A bare perusal of the notification dated 26.6.89 clearly reveals that the same relates to the land situate in villages Jagera and Jandiali Khurd @ Malikpura. It has further been stated that the petitioner apprehending that a new notification will be issued extending the municipal limits of Ahmedgarh so as to include the revenue estate of village Akbarpura at some later stage, filed a caveat on 23.9.89, Annexure P-5, that in case the municipal limits of Ahmedgarh is to be extended thereby including the revenue estate of village Akbarpura the same is likely to affect the petitioner financially and so craved that the petitioner be heard before finalising the notification Under Section 5(3) of the Punjab Municipal Act.
3. Pursuance to the notice of motion issued by the court, the respondents have put in appearance and filed written statement, Respondents No. 1 to 3 have filed a joint written statement whereas respondent No. 4 Municipal Committee has filed separate written statement. Preliminary objections as well as pleas taken in both the written statements are almost identical. Objecting to the maintainability of the writ petition, it has been stated-that the extension of the municipal limits is in exercise of a function which partakes the character of sovereign functions and it was not incumbent upon the respondents to hear the petitioner before extending the municipal limits. As regards the notification, it was staled that the same was published in accordance with law in the area in question and that the petitioner was aware of the notification. This fact is otherwise proved as the petitioner had filed objections and lodged a caveat petition as. per Annexure P-5. On merits, it was stated that the description of boundaries of the area which was included vide preliminary notification as well as final notification vide Annexure P-2 and P-7 respectively, there is no manner of doubt that the area of the petitioner's mill falls within the extended municipal limits of Ahmedgarh. Replying to the averments of the petitioner that the name of village Akbarpura does not find mention in the notification, it was submitted that the notification states the starting point i.e. north eastern corner of Khasra No. 229 of village Jagera and then boundary proceeds by giving the description of the outer limits. The notification goes on to indicate that at Khasra No. 525. the direction of the boundaries is towards the western of Khasra No. 523 and in this manner the boundaries so reach upto point of khasra No. 598. Once again it is given that the boundaries arc to proceed along with khasra No. 599 and thereafter it makes mention of khasra No. 42, 41, 40, 33, 32 and 28. If a line is drawn as per khasra No. mentioned in the notification connecting the various numbers, the area under the factory premises, though situate in village Akbarpura, comes within its boundary. This way the assertion of the petitioner that village Akbarpura is not included, as per notification Annexures P-2 and P-7, is absolutely incorrect. Replying to the assertion of the petitioner that it was mandatory requirement of Section 5(5) of the Punjab Municipal Act to hear the objections of the inhabitants of the Sahha area, it was stated that such a plea is not available to the petitioner as Gram Panchayat has not come forward to contest the notification Annexure P-7.
4. Since the matter involved financial implications, it was thought appropriate to hear the parties at the motion stage and decide the same without any further delay.
5. Learned counsel for the petitioner in support of his case has firstly drawn our attention to the notification issued Under Section 5(1) of the Punjab Municipal Act wherein it was proposed to extend the present boundary limit of municipality of Ahmedgarh, Vide this notification, the inhabitants of municipality of the local area were asked to file objections, if any, to the Secretary to Government Punjab, Local Government Department, within six weeks of the Publication of this notification. This notification gives the description of boundaries municipal limit of Ahmedgarh intended to be extended. It starts from north east corner of Khasra No. 229 of village Jagera and thereafter towards West along the northern boundaries of Khasra Nos. 228, 231, 233......upto the north west corner of khasra No. 525 and thereafter makes mention of few khasra Nos. and then includes within its ambit khasra No. 523 onwards (as detailed in notification) upto khasra Number 598 of village Jandali Khurd; from khasra number 598 towards east along the southern boundaries of Khasra No. 599, 601, 645, 470, 471, 472, 478, 438, 439,433, 427, 416, 102, 104, 94, 90, 123, 124-42-41-40, 33, 32, 28 and upto the south east corner of khasra No. 26; and finally from Khasra No. 26 towards north along eastern boundaries of khasra No. 33 onwards (detailed in the notification) upto the north east corner of khasra No. 229 of village Jandali Khurd e. the starting point. According to the counsel for the petitioner, whereas this notification makes mention of village Jagera and Jandali Khurd, the same docs not make mention of village Akbarpura which itself would signify that the government had no intention to include any area situate within the revenue limits of Akbarpura. The petitioner apprehending that his factory premises which though situate in village Akbarpura may not be included at the time of final publication of notification, filed a caveat addressed to the various functionaries of the State Government and sent the same by registered post (Annexure P-5 dated 23.9.89). It was further prayed that since the petitioner is liable to be jeopardised in case revenue estate of village Akbarpura is too included in the notification, he be given a right to be heard. Final notification issued on March 30,1993 (Annexure P7) is identical to Annexure P-2 i.e. it also makes mention of village of Jagera and Jandali Khurd only. With a view to prove the area beyond 601 i.e. 645, 470, 471 and 472 onwards as noticed comprised in the revenue estate of village Akbarpura but there is no mention in the preliminary notification or the final notification issued by the Government. As regards the right of hearing before area sought to be included is notified, the counsel relied upon the decision of the apex court in case reported as Baldev Singh and Ors. v. State of Himachal Pradesh and Ors., AIR 1987 S.C. 1239.
6. Sh. J.N. Kaushal, appearing for the Municipal Committee, respondent No. 4, tried to explain the boundaries as given in, the notification Annexure P-7 and urged that there is no ambiguity in the notification i.e. if a line is drawn connecting various khasra numbers, as per notification, the area of village Akbarpura comes within the boundaries specified and thus mere non-mentioning of village Akbarpura is wholly inconsequential. Even otherwise, the petitioner was well aware that whole of village Akbarpura comprising Khasra numbers 470, 471 onwards, as per details given in the notification, were of this village and thus no prejudice has been caused to the petitioner in any manner.
7. Sh. R.K. Joshi, Addl. A.G. Punjab, reiterated the stand taken in the written statement and adopted the line of arguments of Sh. Kaushal.
8. After hearing learned counsel for the parties, we are of the view that the writ petition deserves to be allowed on the short ground that the name of village Akbarpura does not find mention either in the preliminary notification or in the final notification issued by the government and in the absence of the same, it is difficult to accept the stand of the respondents that khasra Nos. 470, 471 and 472 onwards, in fact, pertain to village Akbarpura and not to village Jagera and Jandali Khurd. In fact, the respondents have been complacent in not adverting to the specific averments made by the petitioner vide notice of caveat dated 23.9.89 in which it was specifically mentioned that though preliminary notification issued does not relate to village Akbarpura, yet the petitioner apprehends that in case a notification is issued including the area owned or possessed by the petitioner and situate within the revenue estate of village Akbarpura, the same would affect his financial and proprietory rights. For this, the petitioner craved the right of hearing before issuance of a notification. There is no denying the fact that despite notice of caveat issued by the petitioner, no opportunity was afforded to him by the respondents. It is only on 15.4.93 (Annexure P- 1) that the Executive Officer, Municipal Committee, Ahmedgarh, informed the petitioner that his mill now falls within the municipal limits of Ahmedgarh which notice has been termed to be wholly illegal and unjust by the petitioner.
9. Admittedly, there has not been any publication in the local area comprising the revenue estate of village Akbarpura and so the petitioner could not raise any objection to the notification. Similarly, gram panchayat in the village was not informed of the same nor any representative of the inhabitants of village Akbarpura have been included on the committee of the municipality. Though this precise objection is not available to the petitioner, but all the same this gives an indication that there is no publication of this notification in the local area of village Akbarpura. There is no clear cut provision in the Act to provide a right of hearing to residents of the locality before such an area is included within the municipal limits. All the same, the affected parties are entitled to hearing as the same is likely to involve civil consequences. Somewhat identical proposition came up for consideration before the apex court in Baldev Singh's case (supra) wherein it was held as under:-
"This court held that where the administrative action entails civil consequences, observance of natural justice would be warranted and unless the law excludes the application of natural justice it should be taken as implanted into the scheme.......We accept the submission on behalf of the appellants that before the notified area was constituted in terms of Section 256 of the Act, the people of the locality should have been afforded an opportunity of being heard and the administrative decision by the State Government should have been taken after considering the views of the residents. Denial of such opportunity is not in consonance with the scheme of the Rule of law governing our society. We must clarify that the hearing contemplated is net required to be oral and can be by inviting objections and disposing them of in a fair way."
10. Relying upon the decision of the apex Court which is fully applicable to the facts of the present case and for the reasons that the notification does not make mention of village Akbarpura, we accept the writ petition and quash notification dated 15.4.93, Annexure P-1. No order as to costs.