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Madhya Pradesh High Court · body

2014 DIGILAW 1230 (MP)

Satish Kumar v. State of M. P.

2014-09-26

JARAT KUMAR JAIN, SHANTANU KEMKAR

body2014
JUDGMENT Shantanu Kemkar, J. 1. This order will govern disposal of Writ Petition (PIL) No. 4904/2014 and Writ Petition No. 4187/2014. For the sake of convenience, facts are taken from Writ Petition (PIL) No. 4904/2014. 2. By filing this petition in the nature of public interest litigation, the petitioners have challenged the notification dated 09.01.2013 published on 08.02.2013 (Annexure P/1) for inclusion of area specified in it, within the limits of Municipal Area of Municipal Council, Sarangpur, District Rajgarh and also the final notification dated 30.01.2014 published on the same day (Annexure P/7) issued by the respondents. The first notification has been issued by the respondents mentioning it to be under Section 5(1) & (2) of the Madhya Pradesh Municipalities Act, 1961 (for short, the Act of 1961) whereas the second notification (Annexure P/7) has been issued mentioning it to be under Section 5A of the Act of 1961. 3. According to the learned counsel for the petitioners, both the notifications are not issued under appropriate provisions of the Act of 1961 and are liable to be quashed for want of compliance of the mandatory requirement of the provisions of Act of 1961, on the part of the respondents. He submits that in the first notification there is a mention of being issued under Section 5(1) and (2) of the Act of 1961, whereas from the reading of the notification, it appears that the same is not in consonance with the requirement of the said provision. He also submits that as provided under Section5A(2) and (3), the objections which were submitted in pursuance to the first notification (Annexure P/1), have not been considered and decided by the Governor, thus there is no compliance of the mandatory requirement of Section 5A(2) and (3) of the Act of 1961. He stated that though in the writ petition various grounds have been raised to challenge both the notifications, but if this Court finds that the ground regarding non-consideration of the objections by the Governor before issuance of the final notification is upheld, this petition may be disposed of on that ground alone; reserving his right to agitate about the validity of the first notification, if the Governor/Competent Authority rejects the objections. 4. Ms. 4. Ms. Mini Ravindran, learned Deputy Government Advocate for the respondents, on the other hand, supported the impugned notifications but has not disputed that the first notification has been issued mentioning wrong provision and it ought to have been issued under Section 5A(1) of the Act of 1961. She submits that before Hon'ble Governor, the file received from the Collector was also placed along with the file of the Department. And thereafter, the Governor granted the approval on the file. Thus, according to her, there is sufficient compliance of Section 5A(2) and (3) of the Act of 1961. 5. Since we are examining the question as to whether before issuance of the final notification, the Hon'ble Governor has considered and decided the objections, we are not touching the ground about the challenge to the first notification. 6. In order to appreciate the controversy about the final notification dated 30.01.2014, it would be appropriate to extract Section 5A of the Act of 1961: - "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 prescribed 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 the 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." (Emphasis supplied) 7. To find out as to whether as provided under Sub-Section (2) of Section 5A of the Act of 1961, the objections submitted to the Collector have been taken into consideration by the Governor or not and as to whether after such consideration, as provided under Sub-Section (3) of Section 5A of the Act of 1961, the final notification has been issued, we have called for the relevant files from the Office of Collector, Rajgarh as also from the concerned department of the State Government. 8. After going through the file received from the Collector, Rajgarh, we have noticed the following note in the file: - 9. Thus, it appears that the objections which were received against the first notification were considered by the Sub Divisional Officer (Revenue), Sarangpur and as recorded in the note-sheet and the letter dated 22.07.2013 available on record sent by the SDO to the Collector, he did not find any merit in the objections. The SDO proposed that the objections be treated as rejected and recommended for inclusion of the villages in the municipality and for issuance of final notification. The said proposal of the SDO was forwarded by the Collector to the concerned department for publication of final notification. 10. On receipt of the file from the Collector, Rajgarh, the Deputy Secretary of the Department vide note-sheet dated 30.11.2013 proposed for issuance of the final notification. Thereafter, the files along with the draft of final notification were placed before the Hon'ble Governor. The relevant note on the file recorded by the Principal Secretary of the Governor reads, thus: - 11. Having gone through the entire file received from the State Government, we could not find any order or note to the effect that the Governor has taken into consideration the objections, which were sent by the Collector along with the entire file. When Section 5A(2) and (3) of the Act of 1961 specifically provide for Governor to take such objection into consideration then only after consideration of the objections by the Governor, the final notification could have been issued. In the present case, it is revealed that the objections were received and considered by the Sub Divisional Officer. He considered the objections and recommended for inclusion of various villages in the municipal area and also recommended for issuance of final notification to that effect. In the present case, it is revealed that the objections were received and considered by the Sub Divisional Officer. He considered the objections and recommended for inclusion of various villages in the municipal area and also recommended for issuance of final notification to that effect. Thereafter, the Collector sent the entire file to the concerned department of the State Government. The State Government on receipt of the file has decided to issue final notification and thereafter kept the file before the Governor. On receipt of the file 'approval', as extracted above, has been given by the Governor for inclusion of area in Municipal Council, Sarangpur District Rajgarh. Thus, there is no 'consideration' of the 'objections' by the Governor and there is only approval for the inclusion of area, as mentioned above. 12. Having regard to the aforesaid, we are not impressed by the submissions made by learned Deputy Government Advocate that when the entire file was put up before the Governor, it would be deemed that the Governor has considered the objections and decided the same. The approval to the file and approval to the inclusion would not mean that the Governor has "taken into consideration the objections". There is absolutely no whisper in the note-sheet as to whether the objections were considered and rejected by the Governor. In the circumstances, in the absence of any consideration of the objections received pursuant to the first notification by the Governor, as provided under Section 5A(2) & (3) of the Act of 1961, the final notification is not sustainable. 13. As a result, keeping the ground raised by the petitioners open in regard to the challenge to the first notification to be considered by the Governor, we quash the final notification dated 30.01.2014 (Annexure P/7). 14. Both the writ petitions stand allowed to the extent indicated above. C.C. today.