Laxman Jagannath Yadav v. State Of Maharashtra And Others

Chapalgaonkar, J.:— Rule. Rule made returnable forthwith by consent.

2. The petitioner is a resident of village Shirasgaon in Shrirampur Taluka. His grievance is that a Notification purporting to be under section 3(3) read with section 6(2) of the Maharashtra Municipalities Act, 1965, was published in daily “Sarwamat” published from Shrirampur on 16th April, 1989, wherein State Government has expressed its intention to alter the present boundaries of Shrirampur Municipal Council and include in it Gaothan area of village Shirasgaon and some areas adjoining to it. The crux of the contention raised by the Petitioner appears to be that the statutory requirements of section 3(3) of the Act of 1965 have not been complied within the said Notification and, therefore, Notification is bad in law.

3. Shri Navandar, learned counsel on behalf of the petitioner submitted that the impugned Notification does not call for the objections and, therefore, it is not a valid Notification. Shri Dhuladhwaj, Addl. Government Pleader on behalf of the State, submitted that the State Government has notified its intention to alter the boundaries of Shrirampur Municipal area and now it will be left for the Government to call for the objections and if such objections are received they would be considered then. We have also heard Shri R.N Dhorde, learned counsel for Municipal Council-Respondent No. 3 and Shri V.D Hon, for Village Panchayat-Respondent No. 4.

4. Section 6 of the Maharashtra Municipalities Act, 1965, authorises State Government to alter the limits of a Municipal area by Notification in Government Gazette. Consultation with the concerned local bodies and following the procedure laid down in sub-sections (3), (4) and (5) of section 3 of the said Act is sine qua non for the exercise of power under section 6. sub-section (3) of section 3 of the Act requires that State Government shall cause to publish a Notification in the Official Gazette announcing the intention of Government to issue a Notification altering the limits of a Council and inviting all persons who entertain any objection to the said proposal to submit in writing with reasons therefor to the Collector of the District within two months from the date of publication of proclamation in the Official Gazette. Thus, requirement of sub-section (3) of section 3 is a prerequisite for the alteration of limits of a municipal area which will have to be done under section 6 of the said Act. The Legislature thought it fit to give an opportunity to affected persons who would be transferred from areas of other local bodies into an area of Municipal Council or vice versa, before Notification under section 6 is issued. With this purpose sub-section (3) has been enacted. The publication of the Notification in the Official Gazette would only make the people aware of the intention of the Government, but no useful purpose would be served merely by making people aware of such an intention. The later part of sub-section making it obligatory on the part of the State Government to call for the objections is very much necessary for giving valid effect to the intention of the Government. If the people are not asked to file their objections, if any, then the very purpose of publishing a preliminary notification would be lost.

5. Mr. Dhuladhwaj, learned A.G.P, wanted to submit that an executive right has been vested in the Government under sub-section (3) of section 3. We are unable to accept with this proposition since no such right is vested in Government by virtue of section 3(3). It merely requires the State Government to follow the due procedure of law before power could be exercised under section 6 of the said Act. In the very nature of the things, it will have to be held that the later part of sub-section 3 requiring that such a notification should contain an appeal to the people affected to file objections, if any, is mandatory in nature and the non-compliance of it will render any action under section 3(3) of the Maharashtra Municipalities Act, 1965, invalid and bad in law. If a power has been vested in a statutory authority by a statute it will have to be exercised in the manners which have been prescribed by the statute and not otherwise. Supreme Court in the case of Hukam Chand Shyam Lal v. Union of India reported in (1976) 2 SCC 128 : AIR 1976 SC 789, has observed thus:—

“It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice.”

6. Not calling objections as required would be violation of principles of natural justice. Later part of sub-section (3) of section 3 of the Act gives statutory recognition to the principle of natural justice and is mandatory in nature.

7. Therefore, we will have to hold that the Notification dated 18th March, 1989, published by the Urban Development Department of the Government of Maharashtra purporting to be under section 3(3) of the Maharashtra Municipalities Act, 1965, in respect of the alterations in the boundaries of the Shrirampur Municipal Council is bad in law and it is hereby quashed. Needless to say that we have not expressed any opinion as to the question whether any area should be added or not be added by alteration of the limits of Shrirampur Municipal Council. State Government would be free to take proper steps by adopting procedure prescribed by law.

8. In the result, Writ Petition is allowed. The Notification dated 18th March, 1989, issued by the Urban Development Department of the Government of Maharashtra under section 3, sub-section (3) of the Maharashtra Municipalities Act, 1965, in respect of alteration of Shrirampur Municipal Council published in daily “Sarwamat” on 16-4-1989 is hereby quashed. Rule made absolute in terms of the above observations. There shall be no order as to costs.

Petition allowed.