Bombay High Court
Rehanbi Alamgir Khan vs The State Of Maha., Through Its ... on 26 February, 2018
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1 wp4758.15 & wp5137.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
(I) WRIT PETITION NO.4758 OF 2015
Syed Farukh s/o Syed Mustaq,
aged about 30 years, occupation :
agriculturist, r/o Barshi Takli,
Ward No.5, Tahsil Barshi Takli,
District Akola. ... Petitioner
- Versus -
1) The State of Maharashtra, through
its Secretary, Urban Development
Department, Mantralaya, Mumbai-32.
2) The Secretary, Rural Development
and Water Conservation Department,
Mantralaya, Mumbai - 32.
3) The Collector, District Akola.
4) Zilla Parishad, Akola, through its
Chief Executive Officer.
5) The Administrator of Barshi Takli
Nagar Panchayat as well as Tahsildar,
Barshi Takli, Tahsil Barshi Takli,
District Akola. ... Respondents
------
1) Asif Khan Ali Ulla Khan, aged
about 55 years, r/o Dhondbes, at post
Barshitakli, Taluq Barshitakli,
District Akola.
2) Purushottam Digamar Dhore,
aged about 45 years, r/o Dhore Vetal,
at post Barshitakli, Taluq Barshitakli,
District Akola.
3) Masum Khan Ali Rustam Khan,
aged about 57 years, r/o Jama Masjid
::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 :::
2 wp4758.15 & wp5137.15
Chowk, at post Barshitakli, Taluq
Barshitakli, District Akola.
4) Bharat Gajanan Bobde, aged about
44 years, r/o Vanjaripura, at post
Barshitakli, Taluq Barshitakli,
District Akola.
5) Syed Jahagir Syed Nayim, aged
about 35 years, r/o Dhondbes,
at post Barshitakli, Taluq Barshitakli,
District Akola.
6) Rafiyakhatun Ansarulla Khan,
aged about 45 years, r/o Vanjaripura,
at post Barshitakli, Taluq Barshitakli,
District Akola.
7) Ramesh Manohar Watmare,
aged about 42 years, r/o Vanjaripura,
at post Barshitakli, Taluq Barshitakli,
District Akola.
8) Mehfuz Khan Rasul Khan, aged
about 44 years, r/o Jama Masjit Chowk,
at post Barshitakli, Taluq Barshitakli,
District Akola.
9) Ifterwaroddin Kazi Sayidoddin,
aged about 45 years, r/o Kazipura,
at post Barshitakli, Taluq Barshitakli,
District Akola.
10) Hasan Shah Anwar Shah,
aged about 50 years, r/o Kholeshwar pada,
at post Barshitakli, Taluq Barshitakli,
District Akola.
11) A. Shahzad A. Samad, aged about
30 years, r/o Sayyedpura, at post
Barshitakli, Taluq Barshitakli,
District Akola.
12) Mohd. Yasuf Mohd. Kasam,
aged about 44 years, r/o Labde Vetal,
::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 :::
3 wp4758.15 & wp5137.15
at post Barshitakli, Taluq Barshitakli,
District Akola.
13) Sk. Azhar Sk. Zamir, aged about
32 years, r/o Koylapatti, at post
Barshitakli, Taluq Barshitakli,
District Akola.
14) Shyam Pralhad Dhayit, aged
about 32 years, r/o Somwarpeth,
at post Barshitakli, Taluq Barshitakli,
District Akola.
15) Vishwanath Ramram Dhore,
aged about 44 years, r/o Dhore Vetal,
at post Barshitakli, Taluq Barshitakli,
District Akola.
16) Bismillakhan Sarfaraz Khan,
aged about 50 years, r/o Khadakpura,
at post Barshitakli, Taluq Barshitakli,
District Akola.
17) Abdul Kadir Shaikh Chand,
aged about 65 years, occupation :
agriculturist, r/o Imaliban,
Taluq Barshitakli, District Akola.
18) Mujibuddin Saifuddin Pathan,
aged about 54 years, occupation :
business, r/o Khadkipura, Taluq :
Barshitakli, District Akola.
19) Abdul Khalil s/o Ghulam Rasul,
aged about 71 years, occupation :
business, r/o c/o Taha Medical,
near Jama Masjid, Jalibes,
Barshitakli, District Akola 444 401. ... Interveners
----------------
Shri M.P. Khajanchi, Advocate for petitioner.
Ms. N.P. Mehta, Assistant Government Pleader for respondent nos. 1 to 3.
Shri Ateeb A. Syed, Advocate for intervener no.18.
----------------
::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 :::
4 wp4758.15 & wp5137.15
(II) WRIT PETITION NO.5137 OF 2015
Rehanbi Alamgir Khan, aged about
40 years, occupation : household,
r/o Somwari Peth, Barshi Takli,
Tahsil Barshi Takli, District Akola. ... Petitioner
- Versus -
1) The State of Maharashtra, through
its Secretary, Urban Development
Department, Mantralaya, Mumbai-32.
2) The State of Maharashtra, through
its Secretary, Rural Development and
Water Conservation Department,
Mantralaya, Mumbai - 32.
3) The Collector, Akola, District
Akola.
4) The Sub-Divisional Officer,
Barshi Takli, Tahsil Barshi Takli,
District Akola.
5) The Assistant Director, Town Planning,
Akola.
6) Zilla Parishad, Akola, through its
Chief Executive Officer, Akola,
District Akola.
7) Panchayat Samiti, Barshi Takli,
through its Secretary and Block
Development Officer, Barshi Taklli,
Tahsil Barshi Takli, District Akola.
8) Nagar Parishad, Barshi Takli,
through its Administrator, Barshi Takli,
Tahsil Barshi Takli, District Akola. ... Respondents
--------
::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 :::
5 wp4758.15 & wp5137.15
Shri B.G. Kulkarni, Advocate for petitioner.
Ms. M.N. Mehta, Assistant Government Pleader for respondent nos.1 to 5.
----------
CORAM : B.P. DHARMADHIKARI AND
A.D. UPADHYE, JJ.
DATED : FEBRUARY 26, 2018
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Rule, returnable forthwith. Heard finally with consent of learned Counsel for the parties.
2) These two petitions are put together with Writ Petition No.1996/2016. Accordingly arguments have been advanced in these two writ petitions by Adv. Kulkarni and Adv. Khajanchi for petitioners, Ms. Mehta learned Assistant Government Pleader for State Government and Adv. Ateeb A. Syed for intervener no.18.
3) Petitioners invite attention to provisions of Section 341-A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 to submit that for transformation/conversion of Gram Panchayat, Barshitakli into Nagar Parchayat or for its declaration as transitional area, steps envisaged under Section 341-A(1)(b) are mandatory and the same have not been followed. Our attention is also invited to provisions of Section 3 of the said Act for this purpose. ::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 :::
6 wp4758.15 & wp5137.15
4) It is to be noted that after hearing respective Counsel for sometime, this Court has on 15/3/2017 passed a brief reasoned order. In the light of that order and subsequent affidavits, petitioners submit that reliance upon Section 341-A (1A), which is non obstante provision, is again erroneous. They place strong reliance upon provisions of Section 3(5) of the said Act to urge that unless and until there is a specific finding that objections raised are insufficient or invalid, declaration as Nagar Panchayat could not have been granted.
5) In Writ Petition No. 1996/2016, Adv. Naik submits that if formation of Nagar Panchayat is upheld, validity of exercise of Ward formation needs to be looked into. He points out that this Court on 14/8/2015 stayed elections to Nagar Panchayat, Barshitakli.
6) Ms. Mehta, learned Assistant Government Pleader as also Adv. Syed for intervener no.18 rely upon various documents on record. They submit that as contemplated by legal provisions, opportunity was given, objections were invited and objections have also been looked into. They point out that provisions of Section 341A(1) as also (1-A) find mention in proclamation as also notices inviting objections and accordingly objections have been considered. They, therefore, submit that formation of Nagar Panchayat at a place, which is already Taluka Headquarter, cannot be objected to. They point out that decision of State Government to convert all such Taluka Headquarters into Nagar Panchayats has not been ::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 ::: 7 wp4758.15 & wp5137.15 questioned and the impugned action has been initiated in furtherance of that decision.
7) In brief reply, Counsel for petitioners state that though policy decision of State Government is not in dispute, as impugned action cannot be associated with said policy decision, petitioners need not and did not question policy decision. They point out that in proclamation, though sub-section (1-A) of Section 341-A has been mentioned, in draft notification on which objections were invited, this power and provision is absent. They submit that consideration of objections by Collector, therefore, is in tune with draft notification and that objections raised by petitioners pointing out percentage of employment in non-agricultural activities in the area to be 23.23 only ought to have been accepted by the State Government and the declaration should not have been made.
8) The impugned declaration has been made on 1/8/2015 and as per that declaration, the whole area of Village Panchayat, Barshitakli has been specified as transitional area and has been notified as Barshitakli Nagar Panchayat. It is not in dispute that in this notification, the State Government has mentioned not only sub-section (1), but also sub-section (1-A) and sub-section (2) of Section 341-A of the 1965 Act.
9) Petitioners have submitted that power to be exercised could have been either under sub-section (1) or then sub-section (1-A) of ::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 ::: 8 wp4758.15 & wp5137.15 Section 341-A of the 1965 Act. According to them, simultaneously or jointly powers under both provisions cannot be resorted to and exercised. Their submission that percentage of employment in non agricultural activities is 23.23 has not been looked into by competent Authority and hence, in terms of Section 3(5), it is not found to be invalid or insufficient.
10) Section 341-A(1) of the 1965 Act stipulates conditions after satisfaction of which an area can be declared to be a transitional area. Clause (b) therein requires percentage of employment in non-agricultural activities in such area to be not less than 25%. Here petitioners have pointed out the same to be at 23.23%, i.e. less than 25%. They also got some documents in support of this figure. We cannot comment upon correctness or otherwise of this percentage in writ jurisdiction. If figure is relevant, it needed a finding either-way from State Government in terms of Section 3(5) of the 1965 Act. Absence of such finding is again not in dispute.
11) Sub-section (1-A) of Section 341-A of the 1965 Act reads as under :
"(1A) : Notwithstanding anything contained in the proviso to sub-section (1), the State Government may, by notification in the Official Gazette, declare an area which is a District Headquarter or a Taluka Headquarter to be a transitional area."::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 :::
9 wp4758.15 & wp5137.15 It is thus an overriding provision, which empowers State Government to declare a Taluka Headquarter to be a transitional area or Nagar Panchayat and for doing this, the conditions stipulated in sub-section (1) of Section 341-A are not applicable. Thus, where there is a policy decision to treat a Taluka Headquarter as transitional area, the above referred percentage of employment in non agricultural activities is not relevant at all.
12) Normally, a power, which requires certain compliances before it is resorted to and an independent power, which springs into force in absence of such conditions need to be viewed as mutually exclusive and, therefore, inconsistent with each other. If recourse is taken to one, automatically the other power is ruled out. Thus, when State Government decides to proceed further under sub-section (1-A), compliance with conditions in sub-section (1) of Section 341-A cannot be insisted upon. The decision to proceed under a particular provision has to precede the initiation of action and the action thereafter can be appreciated in the backdrop of such decision.
13) Here admittedly the action has been initiated on 1/3/2014. After Court orders, the State Government has placed on record on affidavit the exercise of policy decision under which State Government decided to upgrade all Taluka Headquarters as transitional areas. The exercise towards this began on 9/12/2013 and it was over on 27/2/2014. Thus, ::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 ::: 10 wp4758.15 & wp5137.15 on 27/2/2014 State Government had already taken a decision to transform Taluka Headquarter like Barshitakli into Nagar Panchayat.
14) Notification envisaged by Section 341-A (1B) read with sub- sections (3), (4) and (5) of Section 3 inviting objections was issued on 1/3/2014. This notification is in two parts. First part is proclamation. In this proclamation, there is express reference to sub-section (1-A) of Section 341-A of the 1965 Act. Proclamation is accompanied by draft notification in which the decision of State Government "as proposed" is incorporated and the objections have been invited. In the draft notification, this sub-section (1-A) is missing. It only mentions sub- sections (1), (1B) and (2) of Section 341A. Thus, in proclamation there is mention of sub-sections (1), (1A) as also (2) of Section 341-A while in draft notification, mention of sub-section (1-A) of Section 341-A is missing.
15) Perusal of Marathi proclamation reveals that in proclamation part, for English word "1-A", equivalent provision mentioned is "1-d". Even while mentioning parent Section, i.e. Section 341-A, in Marathi the word employed is "341-d". In Marathi document, there is no inconsistency in proclamation part and draft notification.
16) As already mentioned supra, this notification has been ::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 ::: 11 wp4758.15 & wp5137.15 published after the policy decision of State Government dated 27/2/2014. We, therefore, specifically enquired from petitioners whether they were raising any challenge to the policy decision itself on any count. The petitioners fairly state that they are not objecting to the same.
17) Perusal of provisions of the 1965 Act published in vernacular by State Government reveals that for English equivalent of Section 341-A, which is first Section in Chapter XXVI-A, the State Government has used the word 341-d. For describing the overriding provision, which is referred as Section 341-A(1A) in English, Marathi equivalent is 341-d (1-d ).
18) The proclamation dated 1/3/2014 gave time of 30 days for raising objections. That period was extended on 31/5/2014 by proclamation. This proclamation mentions provisions of sub-sections (1), (1-A) and (2) of Section 341-A. Thus, both powers available under Section 341-A have been mentioned. In Schedule, the names of 78 local areas and Districts appear with names of proposed Nagar Panchayats. Barshitakli appears at serial no.31 in the said Schedule. This proclamation refers to both powers and in addition, also mentions all other powers enabling the State Government in this respect. By this proclamation dated 31/5/2014, time to raise objections was extended upto 30/6/2014.
::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 :::
12 wp4758.15 & wp5137.15
19) On 8/7/2014, Collector, Akola forwarded communication to State Government on the subject of transforming the Taluka Headquarter into Nagar Panchayat. In this, he has mentioned that the time limit to raise objections for Barshitakali has expired on 30/6/2014 and objection dated 27/6/2014 was received by the Office of Collector on 1/7/2014. However, that objection does not mention any reason to oppose formation of Nagar Panchayat. Thus, this communication dated 8/7/2014 again refers to policy decision of State Government to transform Barshitakli Taluka Headquarter into Nagar Panchayat. On 29/5/2015 Collector, Akola has sent a communication to State Government on subject of elevating Taluka Headquarter of Barshitakli as Nagar Panchayat. There in opening paragraph Collector has again mentioned policy decision dated 1/3/2014 to elevate said Headquarter as Nagar Panchayat. He has then pointed out objections received from one Rehanbi Alamgir Khan and Sanjay Atmaram Mule. Those proceedings were forwarded by him to Government for further necessary action. Rehanbi Alamgir Khan and Sanjay Atmaram Mule are not the petitioners in Writ Petition No.4758/2015. Rehanbi has filed Writ Petition No.5137/2015. Earlier part of order reveals that petitioner in Writ Petition No.4758/2015, Rehanbi Alamgir Khan and Sanjay Atmaram Mule had represented against cancellation of their membership as Ward members of Gram Panchayat, Barshitakli.
::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 :::
13 wp4758.15 & wp5137.15
20) At this stage it will be appropriate to take note of the document filed as Annexure Q with Writ Petition No. 4758/2015 by petitioner. Similar document is also filed by Smt. Rehanbi. In this document dated 29/5/2015, there is a contention that Village Development Officer of Barshitakli has submitted a false report mentioning that percentage of employment is 23.23. It is maintained by petitioner that 90% people in the vicinity are unemployed. Thus, in the backdrop of the conditions stipulated in Section 341-A(1)(b) of the 1965 Act, this objection which has been raised after hearing and on the date on which Office of Collector appears to have forwarded report to Government shows an entirely different picture. It is rather irrelevant. Collector heard all the petitioners on 28/5/2015 and then prepared his report on 29/5/2015.
21) Thereafter the final notification has been published on 1/8/2015. In final notification, in Marathi, again provision mentioned is Section 341-A (1), (1-d) and (2). At this stage our attention is invited to Writ Petition No. 3312/2015 filed by Syed Farukh only. In that petition, notification dated 1/3/2014 was specifically assailed. That petition filed sometime in first week of June 2015 has been disposed of on 16/6/2015 with following order :
"The learned Counsel for the petitioner seeks liberty to withdraw the petition with further liberty to make representation ::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 :::
14 wp4758.15 & wp5137.15 to the appropriate authority.
Petition is disposed of as withdrawn with liberty as prayed for."
Petitioner Syed Farukh thereafter had filed objection on 17/7/2015. In that objection, in ground (iii) he had specifically pointed out employment of 23.23% in non agricultural activities and, therefore, breach of Section 341-A(1)(b). Thereafter final notification dated 1/8/2015 appears to have been issued.
22) Liberty given by this Court on 16/6/2015 has been used by petitioner Syed Farukh by filing objections on 17/7/2015 and the objections raised by him earlier and on 17/7/2015 therefore, do not co-incide. However, in the present matters, we do not find it necessary to delve into all these niceties. Facts show that the State Government had taken a policy decision to transform all Taluka Headquarters into transitional areas and accordingly steps were initiated and accomplished insofar as Barshitakli is concerned.
23) Notifications no doubt mention both powers, i.e. power under Section 341-A (1) and also (1-A), but then, that by itself cannot be held to be decisive or fatal defect when the policy decision reached earlier itself is not in dispute. Petitioners have not pointed out any specific prejudice caused to them as ultimately State Government has taken recourse to ::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 ::: 15 wp4758.15 & wp5137.15 power under sub-section (1-A) of Section 341-A of the 1965 Act. Had petitioners questioned existence of a policy decision and then advanced their contentions, the situation would have been required to be viewed differently. When the existence of policy decision is not in dispute and the material on record shows reference to that policy decision and also use of overriding power, we find nothing wrong with the ultimate outcome on 1/8/2015. The petitioners have also not pointed out to this Court that such an action has been taken only in case of Barshitakli Gram Panchayat and in case of other Taluka Headquarters, policy has not been implemented.
24) Thus, an error committed by Administration, which has not resulted in any prejudice to petitioners, cannot be used to stall transformation of Gram Panchayat into Nagar Panchayat. Accordingly, we dismiss both the writ petitions. Rule is discharged. No costs.
JUDGE JUDGE
khj
::: Uploaded on - 03/03/2018 ::: Downloaded on - 04/03/2018 01:19:25 :::