1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition No.6365 Of 2009. 1) Sow. Chhaya Vyankatrao Hajare, ] Age 40 years, ] Occupation Household and ] Sarpanch of Gram Panchayat ] Kaij, Taluka Kaij, ] District Beed. ] ] 2) Kabeer s/o Nashiruddin Inamdar, ] Age 28 years, ] Occupation agriculture and ] Member of Gram Panchayat ] Kaij, R/o Fule Nagar, Kaij, ] Taluka Kaij, District Beed. ] ] 3) Mujahed s/o Khairumiya Qureshi, ] Age 27 years, ] Occupation: Business and ] Member of Gram Panchayat ] Kaij, ] R/o Fule Nagar, Kaij, ] Taluka Kaij, District Beed. ] ] 4) Balasaheb s/o Nagurao Dangat, ] Age 48 years, ] Occupation : agriculture and ] Mamber of Gram Panchayat ] Kaij, R/o Kanadi, Taluka Kaij, ] District Beed. ] 2 5) Akbar s/o Khajamiya Inamdar, ] Age 30 years, ] Occupation Business and Member ] of Gram Panchayat Kaij, ] R/o Roja Mohala, Kaij, ] Taluka Kaij, District Beed. ] ] 6) Vijay s/o Namdeo Bhage, ] Age 32 years, ] Occupation : agriculture and ] Member of Gram Panchayat ] Kaij, R/o Fule Nagar, Kaij, ] Taluka Kaij, District Beed. ] ] 7) Sow. Syed Abedabai Syed Ahmed ] Age 45 years, ] Occupation : Household and ] Member of Gram Panchayat ] Kaij, R/o Azizpura, Kaij, ] Taluka Kaij, District Beed. ] ] 8) Sow. Tolabai Sadashiv Gadhave, ] Age 42 years ] Occupation Household and ] Member of Gram Panchayat ] Kaij, R/o Yeshwantnagar, Kaij, ] Taluka Kaij, District Beed. ] ] 9) Sow. Prabhawati Sangram Arkhade,] Age 40 years, ] Occupation : Household and ] Member of Gram Panchayat Kaij ] R/o Behind Lakadi Machine, ] Kanadi Road, Kaij, ] Taluka Kaij, District Beed. ] 3 10) Atul S/o Sampatrao Ingale, ] Age 27 years, ] Occupation : agriculture and ] Member of Gram Panchayat ] Kaij, R/o Shukrawar Peth, ] Kaij, Taluka Kaij, ] District Beed. ] ... Petitioners. Versus 1) The State of Maharashtra, ] Through the Secretary, ] Urban Development ] Department, Maharashtra ] State, Mantralaya, Mumbai. ] ] 2) The Secretary, ] Law and Judiciary Department, ] Maharashtra State ] Mantralaya, Mumbai. ] ] 3) The Collector, Beed, ] Taluka and District Beed. ] ] 4) The Block Development Officer, ] Panchayat Samiti, Kaij, ] Taluka Kaij, District Beed. ] ] 5) Gram Panchayat, Kaij, ] Taluka Kaij, District Beed. ] Through its Village Development ] Officer. ] ] 6) Smt. Vimaltai Mundada, ] Age 48 years, ] Occupation : Minister for ] 4 P.W.D. Maharashtra State, ] Residing at Bypass Road, ] At Post Taluka Ambajogai, ] District Beed. ] ... Respondents. -------- Shri. V.D. Salunke, Advocate for the petitioners. Shri. N.B. Khandare, Government Pleader for respondent Nos.1 to 3. Shri. U.B. Bondar, Advocate for respondent Nos.4 and 5. -------- CORAM: NARESH H PATIL & K.U. CHANDIWAL, JJ. Judgment reserved on : 16th November 2009 Judgment pronounced on : 20th November 2009. JUDGMENT :(Per Naresh H Patil, J.) : 1) Rule. Rule made returnable forthwith and by consent of the learned counsel for the parties the matter is heard finally. 2) The petitioners were elected in the Village Panchayat elections held in the year 2008 as Members of the Village 5 Panchayat Kaij for a period of five years. The petitioners pray for issue of a writ of certiorari for quashing and setting aside Notification dated 31-8-2009 issued by respondent No.1 – the State of Maharashtra, Urban Development Department converting Village Panchayat Kaij into a Nagar Panchayat. The writ petition was filed on 16-9-2009. Notices were issued to the respondents by this Court on 25th September 2009. 3) The petitioners contend that on 17th August 2002 the State Government issued a Government Resolution declaring its intention to convert the Gram Panchayat Kaij into a Nagar Panchayat. Reference was made in the Government Resolution to the provisions of sub section (3) of section 3 and sub section (2) of section 6 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act 1965 and the provisions of Section 4(2) of the Bombay Village Panchayats Act 1958. By a Proclamation dated 17th August 2002 the Urban Development Department of the State Government invited objections from persons residing in the Village Panchayat area. Reference was made by the Government to the provisions of Section 341A read 6 with sub section (3) of section 3 and sub sections (1) and (1A) of Section 341A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act 1965 (for short “the Municipal Councils Act”). At Exhibit “C” to the writ petition the petitioners annexed certain Notifications issued under the Maharashtra Zilla Parishads and Panchayat Samitis Act 1961 (for short, “the Zilla Parishads Act”) which are undated notifications and, according to the petitioners, these notifications which are undated disclose a casual manner in which the respondents State authorities handled the issue of conversion of the Village Gram Panchayat into a Nagar Panchayat. Certain correspondence of the year 2008 between various authorities at the Panchayat Samiti level and the District level in respect of process of conversion of the Gram Panchayat into Nagar Panchayat is placed on record. By a communication dated 5-8-2008 the Chief Executive Officer, Zilla Parishad informed the Sarpanch of the Gram Panchayat to call special meeting of the Gram Sabha in view of the provisions of Section 7(1) of the Bombay Village Panchayats Act 1958 (for short,“the Village Panchayats Act”). A meeting of the village 7 Panchayat was held on 12-7-2008 and it was decided in the said meeting to cancel the special Gram Sabha called on 13-7-2008 and the proposal of conversion of Gram Panchayat into Nagar Panchayat was also opposed (vide Exhibit “H”). The petitioners had annexed a notification dated 31-8-2009 wherein the Urban Development Department of the State Government forwarded papers of the draft proposal to the Law and Judiciary Department of the Government for further steps. The petitioners allege that the efforts were made in the year 2008 again to call for objections which, according to the petitioners, was a fresh proposal initiated for calling objections for ascertaining the issue of conversion of the Gram Panchayat Kaij into Nagar Panchayat. But in the final notification the State Government observed that against the initial notification of 17th August 2002 no objections were received from persons residing in the village panchayat area. Even reference was made to the Resolution passed by the Village panchayat Kaij dated 12-7-2008 in the monthly meeting of the newly constituted Gram Panchayat and, therefore, the State Government decided to issue final notification and accordingly 8 the same was issued specifying the area which would be part of Nagar Panchayat. 4) The learned counsel Shri. V.D. Salunke appearing for the petitioners has referred to the provisions of Sections 3(14), 4 and 10 of the Bombay Village Panchayats Act 1958. The counsel further referred to the provisions of Sections 3, 6(2) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act 1965 and Sections 4, 254, 255 and 256 of the Maharashtra Zilla Parishads and Panchayat Samitis Act 1961. In the submission of the counsel the record was manipulated in this matter right from the beginning and with mala fide intentions without following procedure prescribed in law hurriedly final notification of conversion of the Gram Panchayat into Nagar Panchayat was issued on 31-8-2009. The Code of Conduct was set in operation by the Election Commission of India for the recently concluded Assembly elections in the State of Maharashtra and for getting political mileage at the behest of political leaders the State machinery hurriedly acted upon and violating the mandatory provisions of law issued final 9 notification. The counsel submits that as the Village panchayat was constituted in the year 2008 unless it completes its term, the formation of Nagar Panchayat is not permissible in law. The petitioners ought to have been allowed to complete their term as Members of the village panchayat. The village panchayat had opposed the conversion of the Village Panchayat into Nagar Panchayat. The learned counsel has further submitted that final notification dated 31st August 2009 is based on the objections called in the year 2002. In fact, objections were called in the year 2008, therefore, the notification issued based on the earlier preliminary notification of the year 2002 is itself contrary to law. The entire process is vitiated and in absence of any effective consultation and calling for objections, the final notification deserves to be quashed and set aside. 5) On behalf of respondent No.1, Smt. S.D. Mantri, Joint Secretary to Government, Urban Development Department filed affidavit-in-reply. The deponent submits that the Department sought permission of the Election Commission vide 10 letter dated 29th August 2009 and the Election Commission replied that Loksabha election Code of Conduct had come to an end on 18th May 2009. According to the deponent, the Election Commission did not mention about Code of Conduct pertaining to the State Assembly elections in their letter dated 31st August 2009. The Notification dated 31st August 2009 was issued with the approval of the Hon’ble the Chief Minister and after getting final notification ratified by the Law and Judiciary Department. The deponent further contends that the preliminary proclamation declaring the intention of the Government to constitute Kaij Nagar Panchayat was issued on 17th August 2002 and was published in Marathi and English in daily news paper – “Dainik Zunzaar Neta” dated 29th August 2002. This proclamation was displayed for public information in the office of the Gram Panchayat, Panchayat Samiti Kaij, Tahsil Office Kaij. However, according to the deponent, no objections were received by the Collector Beed from anybody including the petitioners within the specified time limit mentioned in the said proclamation. 11 6) The learned Government Pleader Mr. N.B. Khandare submitted that for conversion of Village Panchayat into a Nagar Panchayat the provisions of Section 4(2) of the Bombay Village Panchayats Act 1958 are not applicable. The provisions of Section 3 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act 1965 are relevant for the purpose. Objections were accordingly called in the year 2002 by the State Government but none of the persons residing in the village panchayat area filed any objection to the preliminary proclamation. The counsel referred to the provisions of Articles 243-B, 243-Q and 243-R contained in Chapters IX and IXA of the Constitution of India. In the submission of the counsel, the notifications under section 4 of the Village Panchayats Act and under section 254 of the Zilla Parishads Act being not necessary are to be ignored for the purposes of the present case. The learned Government Pleader urged that necessary procedural requirements were complied with and thereafter only a final notification was issued. There is no limitation between period from the date of calling objections till issuance of final 12 notification. It was further submitted that the petition is filed by the petitioners in the capacity as panchayat members. The petitioners did not file any objections to the earlier proclamation issued in the year 2002. Further calling of objections from the village panchayat in the year 2008 by the different authorities is not the requirement of law and therefore the petitioners are not entitled to take advantage of the same. Whatever communication the petitioners have placed on record are not necessary and germane and are simply to be ignored as part of unnecessary exercise by the authorities concerned in misconception law. The learned counsel submits that writing of letters by the concerned Minister or the MLA pursuing issuance of final notification of conversion Gram Panchayat into Nagar Panchayat could not be termed to be abuse of power neither any intention could be attributed to the same. Being representatives of people there is no wrong if, according to the wishes of the people, the issue of conversion was pressed by them with the State Government. The issue of conversion got delayed as the work of delimitation of the constituencies started after the year 2002. The counsel has 13 referred to the Writ Petition No.604 of 2003 which was filed by the Village Panchayat Kaij seeking directions to the respondents to issue notification converting the Village Panchayat into Nagar Panchayat. The said writ petition came to be dismissed summarily as withdrawn by a Division Bench of this Court by an order dated 4th March 2003. 7) In the eye of law consultation with the Village Panchayat for conversion is not necessary. In the submission of the learned Government Pleader conversion of Village Panchayat into Nagar panchayat being a legislative act, motives could not be attributed nor legislative wisdom could be an issue of debate as tried to be made out in this case. The learned Government Pleader has placed on record a copy of final Notification dated 31st August 2009 and some of the Notifications which were annexed by the petitioners and referred to as undated Notifications. In the submission of the Government Pleader all these Notifications were bearing date as 31st August 2009 and the petitioners some how obtained copies of some of the documents and made out a ground of challenge by annexing it to the petition. 14 8) This Court had directed the State Government to produce original record and proceedings of this case. We have perused the same. We find that on 17th August 2002 the Government announced its intention to issue a notification under sub sections (1) and (1A) of section 341A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act 1965 that the said local area shall be specified as a transitional area being an area in transition from rural area to urban area. The said proclamation was published in the news paper and in the offices of the Gram Panchayat, Panchayat Samiti, Tahsil office according to the communication made by the District Collector Beed dated 30-9-2002. By communication dated 10-10-2002 the Collector Beed informed the Desk Officer, Urban Development Department, Mantralaya Mumbai that he had not received any objections within the stipulated time frame. The communication made by the Under Secretary, Delimitation Commission, to the Deputy Secretary, Government of Maharashtra, Urban Development Department Mumbai dated 27th January 2004 reads that the Commission had no 15 objection to the proposal for issuing final Notification declaring Kaij Gram Panchayat in Beed District District as Nagar Panchayat, however, the whole process should be completed by 1-2-2004. We find some communication made by the representatives of people and other bodies requesting the Government to convert the Gram Panchayat into Nagar Panchayat including a resolution adopted by the Village Panchayat in its Special Gram Sabha dated 31-6-2007 resolving to move the Government for conversion of the Village Panchayat into Nagar Panchayat. . 9) It seems that the newly elected body of the Gram Panchayat in the year 2008 resisted the move of conversion and started raising objections thereafter during their tenure. For the purpose of issue of notification we may refer to the provisions of Sections 3 to 5 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act 1965. 16 “3. Specification of areas as smaller urban areas. (1) A council for every municipal area existing on the date of coming into force of the Maharashtra Municipal Corporations and Municipal Councils (Amendment) Act, 1994, Mah. XLI of 1994, specified as a smaller urban area in a notification issued under clause (2) of Article 243-Q of the Constitution of India in respect thereof, shall be deemed to be a duly constituted Municipal Council known by the name ..................... Municipal Council. (2) 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 small 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. (2A) for every smaller urban area specified by the State Government under sub-section (2), there shall be consisted a Municipal Council known by the name ........... Municipal Council. (3) Before the publication of a notification under sub section (2), the State Government shall cause to be published in the Official Gazette, and also in at least one newspaper circulating in the area to be specified in the notification, a proclamation announcing the intention of Government to issue such notification, and inviting all persons who entertain any objection to the said proposal to submit the same in writing with the reasons therefor, to the Collector of the District within not less than thirty days from the date of the publication of the proclamation in the Official Gazette. Copies of the proclamation in Marathi shall also be posted in conspicuous places in the area proposed to be declared as a municipal area. 17 (4) The Collector shall, with all reasonable despatch, forward any objection so submitted to the State Government. (5) No such notification as aforesaid shall be issued by the State Government unless the objections, if any, so submitted are in its opinion insufficient or invalid. 4. Classification of smaller urban area (1) Every smaller urban area shall be classified by the State Government as ‘A’ Class, ‘B’ Class, or ‘C’ Class, on the basis of population thereof as specified below: A smaller urban area :-- (a) with a population of more than 1,00,000 shall be ‘A’ Class smaller urban area; (b) with a population of more than 40,000 but not more than 1,00,000 shall be ‘B’ Class smaller urban area; and (c) with population of 40,000 or less, shall be ‘C’ Class smaller urban area. (2) Notwithstanding anything contained in sub-section (1), for the purposes of this Act, the classification as shown in Schedule I to this Act of the municipal areas or councils existing on the day of coming into force of the Maharashtra Municipal Corporations and Municipal Councils (Amendment) Act 1994, Mah. XLI of 1994, specified as the smaller urban area in the notification issued under clause (2) of Article 243-Q of the Constitution of India, shall not be affected, unless such classification is duly revised by the State Government under sub section (5) (3) ................ (4) Every area specified to be a smaller urban area after the coming into force of the Maharashtra Municipal Corporations and Municipal Councils (Amendment) Act, 1994, Mah. XLI of 1994, shall likewise be classified by the State Government and for that purpose, the State Government shall, from time to time by notification in the Official Gazette, amend Schedule I. 18 (5) The State Government shall review the classification made under this section after each census or when the limits of any municipal area are altered by addition or exclusion of any local area or when any area ceases to be municipal area, and shall, where necessary, amend Schedule I accordingly. 5. Effect of re-classification of a municipal area.-- Whenever the classification of a municipal area is changed under section 4, all the relevant provisions of this Act applicable to the class of the municipal area into which the said area is re- classified, shall, with effect from the date of such re- classification apply to the said re-classified municipal area: Provided that, such re-classification shall not affect the constitution of the Council as constituted immediately before such re-classification, and every order issued under sub-section (1) of Section 10 by reason of such re-classification shall take effect for the purposes of the next general election immediately following after the date of such order. Section 341A of the Municipal Act read thus: 341A. Specification of a transitional area and incorporation of a Nagar Panchayat. (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, an area in transition from a rural to an urban area to be a transitional area; Provided that, no such area shall be so specified as a transitional area unless - (a) such area has a population of not less than ten thousand and not more than twenty five thousand; and (b) such area is not more than twenty kilometers away from the territorial limits of any Municipal Corporation or a 'A' Class Council and the percentage of employment in non- agricultural activities in such are is no less than twenty five per cent; or 19 (c) such area is more than twenty kilometers away from the territorial limits of any Municipal Corporation or a ‘A’ Class Council but the percentage of employment in non-agricultural activities in such areas not less than fifty percent. (1A) Notwithstanding anything contained in this proviso to sub-section (1) the State Government may, by notification in the Official Gazette, declare an area which is a District Headquarter or a Taluka Headquarter to be a transitional area. (1B) Prior to the publication of a notification under sub- section (1) or (1A), the procedure prescribed in sub-section (3), (4) and (5) of section 3 shall mutatis mutandis be followed. (2) For every transitional area so specified under sub- section (1), there shall be continued a Nagar Panchayat as provided in section 341B which shall be known by the name of ........ Nagar Panchayat. Every such Nagar Panchayat shall be a body corporate and shall have perpetual succession and a common seal with power to acquire, hold and dispose of property and to enter into contract and may by the said name sue and be sued. Provisions of Article 243Q of the Constitution of India reads thus: 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 area 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: 20 Provided that a 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 generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by pubic notification for the purposes of this Part. 10) Considering the provisions of the various Acts, as referred to above, we find that the State Government had called for objections but no objections pursuant to the proclamation were received within the period specified therein and as regard the factors mentioned in Article 243Q of the Constitution of India the Government rightly considered it to be expedient to specify area to be a transitional area, being an area in transit from the rural area to urban area. The State had explained the delay which occurred in issuing final notification. We have perused the original record and we find that there was continuous persuasion 21 by the representatives of people, other authorities and bodies for getting the Gram Panchayat converted into Nagar Panchayat. Several intermittent circumstances happened due to which the conversion got delayed. 11) We do find that various local authorities including the State authorities had unnecessarily resorted to compliance of various provisions of the