Writ Petition No.3182 of 1998

15th June, 2009

Petitioner Counsel: Mr. T. D. DESHMUKH
Respondent Counsel: Mr. R. P. BEHERE

JUDGMENT

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), (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.

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 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 Panchayat 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 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.

Petition dismissed.