caselaws
Supreme Court of India
State Of Karnataka Tr.Sec.Hsg.& … vs Vasavadatta Cement & Anr on 16 February, 2015Author: J Sudhansu Mukhopadhaya
Bench: Sudhansu Jyoti Mukhopadhaya, Vikramajit Sen
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1918 OF 2015
(Arising out of SLP(C) No.30573 2012)
STATE OF KARNATAKA TR. … APPELLANTS
SEC. HSG. & URB. & ANR.
VERSUS
VASAVADATTA CEMENT & ANOTHER … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA,J
Delay condoned. Leave granted.
2. This appeal has been preferred by the appellant- State of Karnataka
against the judgment dated 23rd June, 2010 passed by the High Court of
Karnataka, Circuit Bench at Gulbarga in Writ Appeal No.2999 of 2004 (LB-
RES). By the impugned judgment, the Division Bench of the High Court while
allowing the writ appeal observed as follows:
“On a thorough consideration of the provision of Section 9 and the
notification produced before court which is extracted above, it discloses
that there is no proper compliance of posting the notification at the
requisite places as stated in Section 9.”
3. The factual matrix of the case is as follows:
The Government of Karnataka initially by draft Notification No. HUD
14 TML 84 dated 19th June/22nd July, 1986 proposed to alter the existing
limits of Town Municipal Council (hereinafter referred to as the ‘Council’
for short) Sedam for inclusion of Survey No. 630-642 within the municipal
limits of town municipality (hereinafter referred to as the
‘municipality’), Sedam inviting objections and suggestions to the proposal
from persons likely to be affected therein. It was followed by Notification
No.HUD 14 TMT 84 dated 15th April/20th May, 1987, issued by Governor of
Karnataka published in Karnataka Gazette dated 25th May, 1987 exercising
the power conferred by sub-Section (1) of Section 4 of Karnataka
Municipalities Act, 1961 (hereinafter referred to as the ‘Act’) altering
the existing limits of the Council, Sedam as detailed therein. A writ
petition No. 10187 of 1987 was filed against the aforesaid notification by
1st respondent which was permitted to be withdrawn in view of subsequent
notification issued by State Government on 28th November, 1995.
By the said notification dated 28th November, 1995, it was notified that
having received no objection to the proposal within a said period of 30
days from the date of publication of notification dated 26th September,
1995 inviting objections from persons likely to be affected thereby in
exercise of power conferred by Section 3 read with Section 9 of the Act,
the Governor of Karnataka specified the smaller urban area in Schedule ‘A
and the limits of which are specified in Schedule ‘B’ and further
specified it to be called ‘Town Municipal Council Area of Sedam having
regard to:
1) the population of the area specified in Schedule-A being not less
than twenty thousand but less than fifty thousand.
2) the density of population in such area being not less than one
thousand five hundred inhabitants to one square kilometer of area:
3) the revenue generated for local administration from such area from tax
and non-tax sources in the year of the last preceding census being not less
than Rs.9,00,000/- per annum;
4) Apart from the percentage of employment in non-agricultural
activities is not less than 15% of the total employment.
4. The first respondent filed another Writ Petition No. 14554/96 before
the High Court of Karnataka, Bangalore challenging the said notification
and the same was summarily dismissed on 19th August, 1997 observing that
the matter is covered by the decision rendered in another case. A Civil
Petition No.1233/2000 in WP No. 14554/1996 was filed by respondent to
rectify the order passed by the learned Single Judge. While reviewing the
said order, the petition was allowed on 20th August, 2001 and the order
dated 19th August, 1997 passed in the writ petition No. 14554/1996 was set
aside and the said writ petition was restored. However, after hearing the
parties, the learned Single Judge on 24th May, 2004 dismissed the writ
petition on the ground that the action of inclusion of an area to the
limits of an existing Town Municipal Limits is essentially a conditional
legislation and hence judicial intervention is not warranted.
5. Against the said order, the respondent preferred the writ appeal No.
2999/2004 which was allowed by the Division Bench by impugned judgment
dated 23rd June, 2010.
6. Learned counsel appearing on behalf of the appellant while assailing
the impugned judgment, submitted that the procedure prescribed under
Section 9 of the Act is substantially followed and complied with in this
case. The third appellant under the directions of the first appellant had
posted the notices announcing the inclusion of the local area within the
existing municipal limits in all the conspicuous places, calling for
objection from the public within 90 days but no objections were received
within the time stipulated.
7. According to the learned counsel for the 1st respondent, the notice has
to be posted in area sought to be added or deleted in smaller urban areas.
In the present case the proclamation has been neither posted in the area of
the 1st respondent factory which is a large area of around 1235.03 acres
which has mini townships nor has been posted in any other area sought to be
included in the existing smaller urban area. The only places where it has
allegedly been posted are four namely;
(1) Panchayat Office, Old Bazar, Sedam
(2) Railway Statio, Sedam
(3) Bus Stand, Sedam and
(4) Notice Board of Town Municipal Council, Sedam;
which were existed in one area and none of them are in area sought to be
included in smaller urban area.
8. Further, according to the learned counsel for the 1st respondent, the
second part of Section 9 states that whenever it is proposed to add to or
to exclude from a smaller urban area any inhabited area, it shall be the
duty of the municipal council also to post a copy of the proclamation in a
conspicuous place, meaning thereby in the inhabited area sought to be
included or excluded from the smaller urban area. The case of the 1st
respondent is that it has a township which is an inhabited area with
housing for workmen, management, etc. and thus it was mandatory for the
municipal council to post the proclamation in conspicuous places in the
said inhabited area which was sought to be included.
9. Learned counsel relied upon the following judgments for the
proposition that the proclamation has to be posted in the affected area or
concerned locality and the objective of the proclamation is that the
affected persons could come to know about the proposed change and that such
a posting is mandatory and not merely directory.
(a) (1985) 3 SCC 1, Collector (District Magistrate) Allahabad & Anr.
vs. Raja Ram Jaiswal.
(b) (1991)1 SCC 401, Syed Hasan Rasul Numa & Ors. vs. Union of India &
Ors.
(c) (2011) 10 SCC 714, J&K Housing Board and Anr. vs. Kunwar Sanjay
Krishan Kaul & Ors.
(d) (2012) 6 SCC 348, Klsum R.Nadiadwala vs. State of Maharashtra & Ors.
10. We have heard the rival contentions raised by the parties and perused
the records.
11. For convenient reference, Section 9 of Karnataka Municipalities Act
is quoted below:
“9. Procedure for Constitution, abolition, etc. of smaller urban
areas:
Not less than thirty days before the publication of any notification
declaring any local area to be smaller urban area, or altering the limits
of any such smaller urban area or declaring that the local area shall cease
to be smaller urban area, the Governor shall cause to be published in the
official gazette in English and Kannada, and to be posted up in
conspicuous placed in the said local area in Kannada a proclamation
announcing that it is proposed to constitute the local area to be smaller
urban area or to alter the limits of the smaller urban area in a certain
manner or to declare that the local area shall cease to be a smaller urban
area, as the case may be, and requiring all persons who entertain any
objection to the said proposal to submit the same, with the reasons
therefore, in writing to the Director of Municipal Administration within
thirty days from the date of the said proclamation, and whenever it is
proposed to add or exclude from a smaller urban area any inhabited area,
it shall be the duty of the municipal council also to cause a copy of
such area. The Director of Municipal Administration shall, with all
reasonable dispatch forward every objection so submitted to the Governor.
No such notification as aforesaid shall be issued by the Governor
unless the objection, if any, so submitted are in its opinion insufficient
or invalid.”
Section 9 prescribes a mandate which is to be followed by the
Governor before publication of notification declaring any local area to be
smaller urban area; or altering the limits of any such small urban area; or
declaring that the local area shall cease to be a smaller urban area.
Firstly, a proclamation announcing the object/proposal of such notification
should be published in the Official Gazette in both English and Kannada
language. Secondly, such proclamation should be posted in conspicuous
places in the said local area ‘in Kannada’. Thirdly, such proclamation
shall require all persons who has any objection to the said proposal to
submit the same stating reasons within thirty days from the date of such
proclamation.
Section 9 further stipulates that whenever it is proposed to add or
exclude from a smaller urban area any inhabited area, it shall be the duty
of the municipal council to cause a copy of such proclamation to be posted
up in conspicuous places in such area. The phrase “such area” used herein
means the inhabited area which is proposed to be added or excluded from the
smaller urban area.
12. Section 9 of the Act has to be read in the light of Article 243Q of
the Constitution of India which is as under:
“243Q. Constitution of Municipalities:
(1) There shall be constituted in every State,-
(a) a Nagar Panchayat (by whatever name called ) for a transitional area,
that is to say, an area in transition from a rural to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) A municipal Corporation for a larger urban area in accordance with
the provisions of this Part:
Provided that Municipality under this clause may not be constituted
in such urban area or part thereof as the Governor may, having regard to
the size of the area and the municipal services being provided or proposed
to be provided by an industrial establishment in that area and such other
factors as he may deem fit, by public notification, specify to be an
industrial township.
(2) In this article, ‘a transitional area’, ‘a smaller urban area’ or ‘a
larger urban area’ means such area as the Governor may, having regard to
the population of the area, the density of the population therein, the
revenue general for local economic importance or such other factors as may
be deem fit, specify by public notification or the purposes of this Part.”
13. The Provision of Section 9 is somewhat similar to Section 4 of the
Land Acquisition Act, 1894 whereunder the posting of the notice in
conspicuous/convenient places is mandatory.
If the argument advanced by the learned senior counsel for the first
respondent is accepted, in that case every affected person whose land is
sought to be included for the purpose of alteration of the limits of the
smaller urban area would claim that such notice must be posted in his land.
14. The Office of the Collector, Panchayat Office, Office of Tehsildar,
Office of municipality, railway station and bus stand, etc. of the local
area are public places; which are expected to be visited by general public
for one or the other reason. Those places can be safely expected to be
conspicuous/convenient places for posting a notice about declaration of
local area to be smaller urban area or altering the limit of any such
smaller urban area as is done in the case of land acquisition.
15. If the stand of the 1st respondent is accepted that the notice should
have been posted within the township of 1st respondent, then it would
frustrate the objective of Section 9 of the Act as other affected persons
whose land would also come under the purview of the said notification might
not have any access to such notice posted within the boundaries of the 1st
respondent’s factory, being not a public place. In such case, every
individual/affected persons will claim posting of such notice at their land
which will amount to giving individual notice to all affected persons.
16. Notification dated 3rd October, 1995 was posted at four conspicuous
places, the English version of which reads as follows:
“No.TMC;95-96 Office of the TMC
Sedam, dated 3.10.1995
NOTIFICATION
Sub.: Publication of Govt. Circular
Ref.: Govt. Circular, bearing No.:NE:407:MLR:95, Bangalore, Dated
26.09.1995
——–
With reference to the above subject, the public of the Town Municipal area
are informed that vide Circular stated in the reference, the boundaries of
Sedam Town Municipalities is proposed to be altered to extend the municipal
area. Any person having objections to the said proposal can file their
written objections within 30 days. The public area hereby informed of the
same by this notification.
1 Sd.
Chief Officer
SEDAM”
It is directed that the copy of the Notification should be posted at the
following places:
i) Panchayat Office, Old Bazar, Sedam
ii) Railway Station, Sedam
iii)Bus Stand, Sedam
iv) Notice Board of Town Municipal Council, Sedam.”
2 17. Learned counsel for the 1st respondent accepted that the Panchayat
Office of the 1st respondent is at Old Bazar, Sedam, nearest railway
station is at Sedam and the bus stand for the employees of the 1st
respondent is at Sedam. This indicates that all the persons, who are said
to be affected by the notification, were informed sufficiently by notice
dated 3rd October, 1995 posted at the above said conspicuous places.
18. Learned senior counsel for the 1st respondent next contended that
only the factory and residential area of the 1st respondent was added by
notification dated 28th November, 1995 but such submission cannot be
accepted in view of the fact that apart from the land of 1st respondent,
land belonging to others were also shown in the said notification dated
28th November, 1995.
19. However, on perusal of the original record, we find two
notifications both dated 3rd October, 1995 having same number are on
record. Per se, both notifications dated 3rd October, 1995 are same but
there is a substantial difference in the last paragraph which mentions the
places where copies of the notification were to be posted. In the 1st
notification dated 3rd October, 1995, which appears to be original, it has
been shown that the notice to be posted at four places namely, (i)
Panchayat Office, Old Bazar, Sedam; (ii) Railway Station, Sedam; (iii)Bus
Stand, Sedam and (iv) Notice Board of Town Municipal Council, Sedam. It is
an old paper, laminated to ensure that it should not be damaged and in the
back of it apart from thumb impressions, signatures also have been obtained
from different individuals to show that the notification was posted in
presence of those witnesses.
The other notification dated 3rd October, 1995 shows that direction
has been issued to post the said notification at nine places, i.e. five
more places apart from the aforesaid four places mentioned in the first
notification. The additional five places include the premises of the first
respondent. The second notification is signed in green ink by some other
officer. Prima facie it appears that the notification dated 3rd October,
1995 containing nine conspicuous places wherein it was to be notified,
signed in green ink by some officer has been prepared subsequently.
20. Learned counsel appearing on behalf of the 1st respondent requested
the Court to initiate contempt proceedings against the concerned official
and to dismiss the appeal as the document has been created to mislead the
Court.
21. The appeal has been preferred by the State of Karnataka. The State
has neither created any document nor filed the same before the High Court
or this Court. If any document is created by any officer to keep it on
record so as to produce it before the Court, it is a serious matter which
requires to be inquired into by the concerned authority. In view of the
fact that a detailed inquiry is required, we find it more feasible to
direct the State Government to inquire into the matter and, if so
necessary, file an FIR against the alleged officers who might have created
the document containing the name of nine conspicuous places in the so
called notification dated 3rd October, 1995, signed by the Chief Officer,
Sedam in green ink.
The Chief Secretary, State of Karnataka is directed to hold an
inquiry with regard to notification No. TMC:SEDAM:95-96 dated 3rd October,
1995 issued from the office TMC, Sedam, signed by Chief Officer, Sedam in
green ink wherein nine places have been shown for posting the
notifications. If it is found to be a document created subsequently, an FIR
to this effect be lodged against the concerned officials for forging
documents. Departmental proceedings be also initiated and an appropriate
action be taken.
22. The appeal is allowed with the aforesaid observations and directions.
……………………………………………………………………
…J.
(SUDHANSU JYOTI MUKHOPADHAYA)
……………………………………………………………………
…J.
(VIKRAMAJIT SEN)
NEW DELHI,
FEBRUARY 16, 2015.
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