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2013 DIGILAW 116 (MP)

Kishore Samriti v. State of M. P.

2013-01-23

K.K.TRIVEDI, S.A.BOBDE

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JUDGMENT : As per S.A. Bobde, CJ. :- The petitioner, by way of filing this petition under Article 226 of the Constitution of India, has called in question the constitutional validity of the M.P. Gazette Notification dated 25-8-2009, whereby the Gram Panchayats, Bisoni, Purva Tola, Tekri and Dulhapur were excluded from the area of Nagar Panchayat, Lanji. 2. In the M.P. Municipalities Act, 1961 (hereinafter referred to as "the Act" for brevity), there is a power conferred on the Governor to include or exclude certain area from the limits of Municipal areas under Section 5-A of the Act, which reads as follows : - "5-A. Power of Governor to include or exclude certain area. - (1) The Governor may by notification in the Gazette, declare the intention to include within or exclude from the limits of a Municipal area, any specified area. (2) If the local authority having jurisdiction in the said area or any person resident therein, objects to such declaration, such authority or person may submit an objection in writing to the Collector within a specified period and the Governor shall take such objection into consideration. (3) When the said period has expired and the Governor has considered the objection under sub-section (2), the Governor may by notification include within or exclude from the limits of a Municipal area, any specified area: Provided that when an area is excluded from the limits of any Municipal area, such area notwithstanding such exclusion shall continue to be within the limits of the Municipal area until the area so excluded is included in a duly constituted Panchayat area." 3. In the present case, the Municipal area of Lanji was constituted by Notification dated 12-8-2008. In this Municipal area, the Gram Panchayats Bisoni, Purva Tola, Tekri and Dulhapur along with the Gram Panchayat, Lanji, were included. Apparently, objections were received by the State that the areas of Gram Panchayats Bisoni, Purva Tola, Tekri and Dulhapur into the larger area of Nagar Panchayat, Lanji, were illegally included without following procedure laid down in Section 5-A of the Act. Apparently, objections were received by the State that the areas of Gram Panchayats Bisoni, Purva Tola, Tekri and Dulhapur into the larger area of Nagar Panchayat, Lanji, were illegally included without following procedure laid down in Section 5-A of the Act. Since the intention to include such areas as required by Section 5-A of the Act was not declared nor objections were invited before the inclusion of these areas, these objections found favour with the Government, which decided to exclude these areas of Bisoni, Purva Tola, Tekri and Dulhapur from the larger area of Nagar Panchayat, Lanji. This has been done by the Notification dated 25-8-2009. The petitioner has approached this Court for a declaration that the exclusion of the aforesaid areas from the larger area of Nagar Panchayat, Lanji, is illegal, because prior to the exclusion of these areas, the procedure prescribed by Section 5-A of the Act has not been followed. That is to say a Notification declaring the intention to exclude such areas from the limits of Municipal area was not published and objections in writing were not considered before such exclusion. 4. We have given the anxious consideration to the matter and we are of the view that the action of exclusion of the areas from the larger area of Nagar Panchayat, Lanji, is not illegal since the exclusion was done purely by way of rectification upon considering without calling for any objections. Thus, in the first place if the inclusion of these areas was itself found to be illegal and the Government decided to exclude those areas after considering the objections in that regard to be valid, it is necessary for the Government to resort the procedure prescribed by Section 5-A of the Act, i.e., again declaring their intention to exclude the aforesaid areas and then again inviting objections. 5. After giving anxious consideration to the matter, we find that though the second Notification for excluding the areas of Bisoni, Purva Tola, Tekri and Dulhapur from the larger area of Nagar Panchayat, Lanji has been done because of the upholding of objections received in regard to the first Notification of inclusion, it was nevertheless the duty of the Government prescribed under Section 21 of the M.P. General Clauses Act, 1957, to exercise the power of exclusion "in like manner and subject to like sanction and conditions". Section 21 of the General Clauses Act reads as follows :- "21. Power to make, to include, power to add to, amend, vary or rescind orders, etc.- Where, by any Madhya Pradesh Act, a power to issue notification, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanctions and conditions, if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws, so issued." 6. The requirement of law is, thus, clear. The Government having notified the larger area by including the areas in question, if of the view that any area must now be excluded for any reason, it must again follow the procedure prescribed by Section 5-A of the Act. We find that there is no Notification declaring the intention of the Governor to exclude the areas of Bisoni, Purva Tola, Tekri and Dulhapur from the larger area of Nagar Panchayat, Lanji. Indeed, it has been the contention of the learned Dy. Advocate General appearing on behalf of respondent Nos. 1 to 3 that the subsequent exclusion is purely due to the upholding of objections of the earlier inclusion. Admittedly, the entire procedure contemplated by Section 5-A of the Act have not been followed, even again. 7. In the circumstances, the subsequent Notification dated 25-8-2009 excluding the areas of Bisoni, Purva Tola, Tekri and Dulhapur from the larger area of Nagar Panchayat, Lanji, is illegal and is hereby quashed and set aside. The Government may proceed in accordance with Section 5-A for the aforesaid purpose. 8. The writ petition stands disposed of to the extent indicated herein above. There shall be no order as to costs.