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2006 DIGILAW 972 (KAR)

P. R. Ramesh v. State of Karnataka.

2006-11-23

CYRIAC JOSEPH, RAM MOHAN REDDY

body2006
Judgment Cyriac Joseph, C. , J.—The petitioner is a Councillor of the Bangalore Mahanagara Palike who was elected from Ward No. 50, Visveswarapuram, Bangalore. He has filed this Writ Petition questioning the validity of Annexure-A notification dated 2-11-2006 issued by the Government of Karnataka. The prayer in the Writ Petition is for a declaration that Annexure-A notification is illegal, ultra vires and unconstitutional. He has also prayed for an interim stay of all further proceedings pursuant to Annexure-A notification. 2. The impugned notification has been issued by order and in the name of the Governor of Karnataka, in exercise of the powers conferred upon by Sections 3 and 4(1)(a) of the Karnataka Municipal Corporation Act, 1976 (for short the Act). As per the notification, it was announced that it is proposed to specify such area, the limits of which are specified in Schedule-B to the notification to be a larger urban area of Bangalore and further to specify the area indicated in Schedule-A to be incorporated in the larger urban area of Bangalore City Corporation to be called hereafter Bruhat Bangalore Maha-nagara Palike. The notification was published in the Official Gazette for the information of the persons likely to be affected thereby giving notice that the notification will be taken into consideration after 30 days from the date of its publication in the Official Gazette. All the persons who entertain any objections and suggestions to the said proposal were required to submit the same with reasons therefor in writing to the Deputy Commissioner, Bangalore Urban District, Bangalore, within the stipulated period. Annexure-A notification was published in the Official Gazette on 2-11-2006. 3. The main contention of the petitioner is that the impugned notification was issued in violation of Section 4(2)(b) of the Act. Section 4(1) and (2) are extracted hereunder : 4. Inclusion and exclusion of areas in, or from the larger urban area : (1) The Governor may having regard to the provisions of Clauses (a) to (f) of sub-section (1) of Section 3 and subject to the provisions of sub-section (2), by notification- (a) include within the limits of the larger urban area, any local area adjacent thereto; or (b) exclude from the limits of the larger urban area, any local area comprised therein; and every such notification shall define the limits of the local area to which it relates. (2) No such notification shall be issued unless a draft thereof is- (a) published in the Official Gazette for the information of all persons likely to be, affected thereby inviting objections and suggestions within one month from the date of publication; and (b) referred to the Corporation for expressing its views thereon within the period specified in Clause (a). It is clear from Section 4(2)(b) that no such notification as contemplated under sub-section (1) of Section 4 shall be issued unless a draft thereof is referred to the Corporation for expressing its views thereon within the period specified in Clause 2(a), i.e., within one month. Obviously, Annexure-A is the draft notification envisaged under Section 4(2). The grievance of the petitioner is that till the writ petition was filed, the draft notification was not referred to the Corporation for expressing its views thereon. The writ petition was filed on 13-11-2006. When the writ petition came up for admission on 17-11-2006, the learned Government Advocate was given time to verify whether the proposal in Annexure-A had been referred to the Corporation under Section 4(2)(b) of the Act and the case stood adjourned to 20-11-2006. On 20-11-2006, learned Government Advocate submitted that the proposal in Annexure-A was referred to the Corporation under Section 4(2)(b) of the Act as per a Government letter dated 3-11-2006 addressed to the Commissioner of the Bangalore Mahanagara Palike and that its receipt was acknowledged by the Commissioner, Bangalore Mahanagara Palike on 6-11-2006. Since the learned counsel for the petitioner disputed the statement of the learned Government Advocate, the learned Government Advocate was directed to place on record the above facts and the relevant documents along with the affidavit of a competent officer. In compliance with the above direction, an affidavit dated 22-11-2006 of Sri. B. G. Ali, Under Secretary to Government, Urban Development Department, Government of Karnataka, has been placed on record. Annexures-R.1 to R.5 documents also have been produced along with the affidavit. In the said affidavit, it is clearly stated that Annexure-A notification was forwarded by the Government to the Commissioner, Bangalore Mahanagara Palike on 3-11-2006 and the Office of the Bangalore Mahanagara Palike and the Personal Section of the Commissioner, Bangalore Mahanagara Palike have acknowledged the receipt of the notification on 6-11-2006. In the said affidavit, it is clearly stated that Annexure-A notification was forwarded by the Government to the Commissioner, Bangalore Mahanagara Palike on 3-11-2006 and the Office of the Bangalore Mahanagara Palike and the Personal Section of the Commissioner, Bangalore Mahanagara Palike have acknowledged the receipt of the notification on 6-11-2006. The Government letter dated 3-11-2006 forwarding a copy of Annexure-A notification to the Commissioner, Bangalore Mahanagara Palike and requesting the Commissioner, Bangalore Mahanagara Palike to obtain and make available to the Government the opinion of the Bangalore Mahanagara Palike as required under Section 4(2)(b) of the Act within the prescribed time limit, has been produced as Annexure-R.2. Photocopy of the letter dated 6-11-2006 sent to Sri. B. G. Wali, Under Secretary from the Public Grievances Cell of the Bangalore Mahanagara Palike acknowledging the receipt of Annexure-R.2 letter has been produced as Annexure-R.3. However, learned counsel for the petitioner contends that Annexurea-R.2 and R.3 are fabricated documents and that no such letter dated 3-11-2006 was received by the Bangalore Mahanagara Palike. According to him, the letter received in the Bangalore Mahanagara Palike was a letter dated 6-11-2006. Even though the files produced by the learned Government Advocate support his contention that Annexure-R.2 letter dated 3-11-2006 was sent to the Commissioner, Bangalore Mahanagara Palike and its receipt was acknowledged by his Office on 6-11-2006, it is unnecessary in this case to resolve the controversy whether the letter was actually dated 3-11-2006 or 6-11-2006. The relevant issue is whether Annexure-A notification was forwarded to the Bangalore Mahanagara Palike by the Government under Section 4(2)(b) of the Act for its opinion. Even according to the submissions made by the learned counsel for the petitioner and the documents placed on record by him, Annexure-A notification was received in the Office of the Bangalore Mahanagara Palike on 6-11-2006 requiring the Bangalore Mahanagara Palike to forward its views under Section 4(2)(b) of the Act. Even if the letter was dated 6-11-2006, the requirement under Section 4(2)(b) of the Act stands satisfied and therefore, there is no merit in the contention of the petitioner that Annexure-A notification was issued in violation of Section 4(2)(b) of the Act. There is no truth in the statement in the Writ Petition that till the date of filing of the Writ Petition the Government had not referred the notification to the Bangalore Mahanagara Palike under Section 4(2)(b). There is no truth in the statement in the Writ Petition that till the date of filing of the Writ Petition the Government had not referred the notification to the Bangalore Mahanagara Palike under Section 4(2)(b). Annexure-E document produced along with the petitioners affidavit dated 23-11-2006 itself shows that Annexure-A notification was forwarded by the Government to the Bangalore Mahanagara Palike on 7-11-2006. The Writ Petition was filed on 13-11-2006. Hence the reference under Section 4(2)(b) was received in the Corporation before the filing of the Writ Petition itself. 4. Though it was feebly contended by the learned counsel for the petitioner on 17-11-2006 that consultation with the Bangalore Mahanagara Palike was required under Section 4(2)(b) even before issuing the draft notification, the said contention was not pressed today. Even otherwise, a mere reading of the provisions contained in Section 4 makes it clear that the reference under Section 4(2)(b) has to be made only after the publication of the preliminary draft notification and before issuing the final notification under Section 4(1) of the Act. This position has been accepted by the Honble Supreme Court in a similar circumstance in the judgment of The State of Maharashtra and another v. The Jalgaon Municipal Council and others ( AIR 2003 SC 1659 ) at paragraph-39. 5. Learned counsel then contended that the term of office of the Councillors of the Bangalore Mahanagara Palike including the petitioner is coming to an end on 23-11-2006 and therefore, the Corporation will not get the statutory period of 30 days to express its views. The term of office of the Councillors of the Corporation is prescribed by the provisions of the Act. If the statutory period comes to an end on 23-11-2006, neither the Government nor this Court can help the situation. There is no provision in the Act conferring power on the Government to extend the term of Office of the Councillors for any reason or under any circumstance. Hence if the term of the Office of the Councillors comes to an end on 23-11-2006 they will cease to be Councillors with effect from that date. Merely because the term of Office of the Councillors is coming to an end on 23-11-2006, it cannot be said that the Corporation will not get the statutory period of 30 days to express its opinion. Merely because the term of Office of the Councillors is coming to an end on 23-11-2006, it cannot be said that the Corporation will not get the statutory period of 30 days to express its opinion. It is the views of the Corporation and not the views of the Councillors that is mentioned in Section 4(2)(b). Even if the term of office of the Councillors comes to an end, the Corporation will continue to exist and the affairs of the Corporation will be managed by the authorities as contemplated under the Act. Under Section 100 of the Act, the Government have power to appoint an Administrator in certain cases. Section 100 of the Act reads thus : 100. Power to appoint Administrator in certain cases : (1) Whenever.- (a) the ordinary elections to the Corporation under this Act or any proceeding consequent thereon have been stayed by an order of a competent Court or authority; (b) the election of all the Councillors or more than two-third of the Councillors has been declared by a competent Court or authority to be void; (c) x x x x (d) all the Councillors or more than two-third of the Councillors have resigned, Government shall, by notification, appoint an Administrator, for such period as may be specified in the notification and may, by like notification, curtail or extend, either prospectively or retrospectively the period of such appointments so however, the total period of such appointments shall not exceed six months. Under Section 100(2) of the Act, on the appointment of an Administrator, during the period of such appointment, the Corporation, the Standing Committees of the Corporation and the Mayor, the Deputy Mayor and other authorities other than the Commissioner, changed with carrying out the provisions of this Act or any other law, shall cease to exercise any powers and perform and discharge any duties or functions conferred or imposed on them by or under this Act or any other law, and all such powers shall be exercised and all such duties and functions shall be performed and discharged by the Administrator. In other words, even if the term of office of the Councillors expires on 23-11-2006 and an Administrator is appointed, the Administrator will exercise all the powers and discharge all duties and functions of the Corporation. In other words, even if the term of office of the Councillors expires on 23-11-2006 and an Administrator is appointed, the Administrator will exercise all the powers and discharge all duties and functions of the Corporation. Even otherwise, it is not necessary for the Corporation to wait till the expiry of the period of 30 days to express its opinion. Even before the expiry of the period of 30 days, the Corporation can express its opinion. Annexure-A notification was published in the Official Gazette on 2-11-2006. The notification was referred to the Corporation under Section 4(2)(b) of the Act and it was admittedly received on 6-11-2006. The Councillors must be deemed to be aware of the publication of Annexure-A notification as it was published in the Official Gazette and since it was communicated to the Corporation. Nothing prevented the Councillors like the petitioner to consider the proposal contained in the notification and to forward to the Government their objections, if any. Therefore, merely because, the term of the Councillors is coming to an end on 23-11-2006 and because there is no gap of 30 days between the date of notification and 23-11-2006 or from the date of receipt of the notification in the Corporation and 23-11-2006, the validity of Annexure-A notification cannot be questioned. 6. We are also of the view that this Writ Petition is premature. What is challenged in the Writ Petition is a draft notification issued under Section 4(2) of the Act inviting objections. The final notification under Section 4(1) is yet to be published. It is obvious from what is stated in the Gazette Notification that all objections and views received pursuant to the draft notification will be considered by the Government before issuing the final notification. Hence nobody including the petitioner can claim to be aggrieved by draft notification Annexure-A. In taking this view, we are supported by a decision of the Honble Supreme Court in Ulagappa and others v. Divisional Commissioner, Mysore and others ( AIR 2000 SC 3603 ), wherein the Supreme Court held as follows : 2. During the course of hearing, we inquired from learned counsel for the parties as to whether any final notification, including certain area within the limits of the Tarikere Town Panchayat consequent upon the notification dated 22-8-1997 has been issued or not. During the course of hearing, we inquired from learned counsel for the parties as to whether any final notification, including certain area within the limits of the Tarikere Town Panchayat consequent upon the notification dated 22-8-1997 has been issued or not. Learned counsel for the parties stated that so far no such notification has been issued. Under such facts and circumstances, we feel that the writ petition filed by the petitioner was premature and ought not to have been entertained by the High Court. Merely by issue of a notification dated 22-8-1997, none of the rights of the petitioner were affected. Therefore, a decision on the basis of the notification dated 22-8-1997 was totally unnecessary. In this view of the matter, the judgment and order of the High Court shall stand modified. The appeal stands disposed of in the aforesaid terms. There shall be no order to costs. Order accordingly. 7. For the reasons stated above, we hold that there is no merit in the Writ Petition and the Writ Petition is dismissed. 8. Petition dismissed.