Talegaon Village Panchayat vs Unknown on 15 June, 2009

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                            
                            CIVIL APPELLATE JURISDICTION

                          WRIT PETITION NO.  3182   OF 1998




                                                           
    Talegaon Village Panchayat         )
    throgh its Sarpanch at Village     )
    Talegaon, Taluka Igatpuri,         )
    District Nasik.                    )..            ...             Petitioner.




                                              
           Versus

    1)
    2)
                             
           The State of Maharashtra )
           Igatpuri Municipal Council)
           at Igatpuri, notice to be  )
                            
           served upon the Chief      )
           Officer of Igatpuri        )
           Municipal Council at       )
           Igatpuri, District Nasik.  )..             ...             Respondents.
       
    



    Mr. T. D. Deshmukh for the Petitioner.
    Mr. R. P. Behere, Addl.G.P. for the Respondents. 

                                CORAM:        BILAL NAZKI and
                                              MRS.V.K.TAHILRAMANI, JJ.

DATED : 15TH JUNE, 2009.

ORAL JUDGMENT (Per Bilal Nazki,J.) :

Heard learned Counsel for the parties.

2. This case has been filed in the year 1998 challenging the

Notification issued on 22nd June, 1998 by respondent No.1 under Section

3(3) read with Section 6(2) of the Maharashtra (Municipal Councils),

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(Nagar Panchayats) and Industrial Townships Act, 1965, for short “the Act

of 1965”. By this Notification the area under Talegaon Village Panchayat

was included in the Igatpuri Municipal Council. This petition was

dismissed on 20th July, 1998 by an order of this Court. Thereafter, it

appears that the matter went to the Supreme Court where the petitioner

withdrew the petition with liberty to approach this Court seeking review of

its earlier order. The review petition was made in which the Bench of this

Court passed an order on 9th November, 1998, which reads as under:

“We have perused the order passed by us on 20th July,
1998 which is sought to be reviewed. We have also perused the
order passed by the Supreme Court on 11th September, 1998.
We have heard the learned Counsel appearing for the

contending parties. Having regard to the provisions contained
in the amended Sections 3 and 6 of the Maharashtra Municipal

Councils, Nagar Panchayats and Industrial Townships Act,
1965, as also the provisions of Article 243 Q of the Constitution
of India, we issue rule and make the same returnable forthwith.

Rule is accordingly made absolute in terms of prayer
clause (b). No order as to costs.

Prayer clause (b):

That this Honourable Court be pleased to review and
recall the Order dated 20-7-1998, passed by this Honourable
Court (Coram : A.C.Agarwal and Smt.Ranjana Desai, JJ), in the
aforesaid Writ Petition No. 3182 of 1998.”

In view of this order the matter was heard again. The controversy is in a

short compass.

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3. The notice inviting objections under Section 3(3) of the said Act of

1965 was issued in the year 1991. Objections were considered. All the

steps which are required in law were taken by the respondents and the

impugned order was passed in the year 1998. But in between there was

amendment in the Act of 1965. In view of incorporation of Article 243 Q in

the Constitution of India the amendments were made in Section 6 of the

Act of 1965. Section 6 of the Act of 1965 reads as, “Subject to the

provisions of sub-section (2) of Section 3, the State Government may by

notification in the Official Gazette, . . . . . .”. This part of Section 6 was

amended in the year 1994 by the Maharashtra Act 41 of 1994. Earlier the

words used in Section were, “the State” and the power of the State to issue

notification altering the limits of the municipal area was made subject to

provisions of sub-section (2) of Section 3 in 1994. Sub-Section (2) of

Section 3 of the Act of 1965 reads as under:

“Save as provided in sub-section (1), the State
Government may, having regard to the factors mentioned in
clause (2) of Article 243-Q of the Constitution of India, specify,

by notification in the Official Gazette, any local area as a
smaller urban area;

Provided that no such area shall be so specified as a
smaller urban area unless the State Government, after making
such inquiry as it may deem fit is satisfied that, –

(a) the population of such area is not less than 25,000;

and

(b) the percentage of employment in non-agricultural

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activities in such area is not less than thirty-five per
cent.”

4. In the light of these amendments in Sections 3 and 6 of the Act of

1965 and incorporation of Article 243-Q in the Constitution of India, the

learned Counsel for the petitioner submits that after these amendments no

notice was issued and no proclamation of the Governor as required under

Article 243 Q was passed, therefore, the impugned order was bad. This

argument though attractive is misplaced since in the light of the fact that

Article 243 Q would apply only when a new Municipal Corporation,

Municipal Council or Nagar Panchyat has to be established. Article 243 Q

lays down that there shall be constituted in every State three types of

municipalities, namely, (a) Nagar Panchayat; (b) Municipal Council and

(c) Municipal Corporation. Broadly speaking the constitution of these three

types of municipalities depend upon the indicators for constitution of such

municipality. Under sub-section (2) of Article 243-Q, `a transitional area’
,

`a smaller urban area’
or `a larger urban area’
would have the meaning as

the Governor may specify by issuance of a notification and while the

Governor issues such a notification the Governor would consider the

following indicators, namely, density of the population of the area, the

revenue generated, the percentage of employment in non-agricultural

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activities, the economic importance and other factors as he may deem fit.

The Nagar Panchayats have to be constituted for a transitional area, that

means an area which is in transition from a rural area to an urban area.

Therefore, the notification which is required to be issued under Article

243-Q of the Constitution of India is a notification required for constitution

of a new Nagar Panchayat.

5.

In this view of the matter we do not think that any fresh notice

needed to be issued as amendments to Section 6 of the Act of 1965 had

altered position with respect to adding areas of existing municipalities.

6. For these reasons we do not find any merit in the writ petition,

which is accordingly dismissed.

7. Rule discharged.

8. No order as to costs.

Sd/-

(BILAL NAZKI, J.)

Sd/-

(MRS.V.K.TAHILRAMANI, J.)

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