2013 Supreme(Bom) 1881

HIGH COURT OF JUDICATURE AT BOMBAY
V.M. KANADE & S.C. GUPTE, JJ.
Prashant Babusaheb Ghiramkar
Versus
The State of Maharashtra & Others
Writ Petition No.7404 of 2013
Decided on: 21-09-2013

Headnote:Maharashtra Land Revenue Code, 1966 - Section 4(4) - Bombay General Clauses Act, 1904, Section 24 - Notification issued by State Government. - Non-compliance of statutory requirement of prior publication of notification proposal and consideration of objections, renders Notification of State Government bad in law. - It is common ground of both the petitioner and the State that the proposal of constituting a sub-division with sub-divisional headquarters at a particular place re quires prior publication of the proposal and consideration of objections and suggestions before a final notification is issued under Section 4 of the MLR Code read with Section 24 of the Bombay General Clauses Act.

       But Section 4 of the MLR Code read with Section 24 of the Bombay General clauses Act makes it clear that the legislature itself has provided for a prior publication and notice of the proposal and consideration of objections and suggestions by the State Government before the power of legislation is exercised by the State Government. If the members of public have to have a prior notice and opportunity to object or make suggestions, they ought to know what the proposal is, and the notice and opportunity in that behalf must be effective. The procedure is mandatory and a substantial compliance thereof must be shown.

       When a draft rule or bye-law is published and objections are invited to it as required under Section 24 of the Bombay General Clauses Act, it is open for the rule making authority to consider objections and suggestions and thereafter make changes to it, but those changes must be incidental or ancillary to the draft rule or bye-law. Those changes must be conceivable within the frame work of the draft proposal and not foreign to the draft. For example, when two or more Talukas are proposed to be included within a sub-division with headquarters at one Taluka, the proposal after consideration of suggestions and objections may well be altered by dropping one or the other Talukas from the proposal or changing the headquarters from one of those Talukas to the other of them. But providing for a headquarters at an altogether different place not included in any of the Talukas forming the sub-division was a proposal foreign to the draft. There was no opportunity afforded to the members of public to make objections or suggestions to such a proposal. Such a proposal was not conceivable within the framework of the draft proposal.

       It is pertinent to note that in that case, the only requirement of sub-section (4) of Section 3 of the Bombay Provincial Municipal Corporations Act was that the power to issue such a notification was subject to the condition of previous publication. There was no statutory requirement to invite objections and suggestions from the members of public and consider them. Secondly, even on the facts of that case, what was done in the final notification was to drop the Ulhasnagar Municipal area from the draft proposal earlier notified after consideration of objections and suggestions in pursuance of the statement made before the High Court in the earlier round of litigation. The dropping of one of the four areas fro m the proposed corporation can certainly be said to be ancillary or incidental to the draft proposal and not a proposal foreign to the draft notification. What was finally done was thus very much conceivable within the framework of draft proposal.

       It is lastly contended by the AGP that the decision to create a sub-division for Daund and Purandar Talukas with headquarters at Pune is a policy decision of the State Government and cannot be struck down unless the same suffers from the vice of demonstrable arbitrariness or discrimination. Reliance is placed on various judgments of the Supreme Court in support of the proposition. It bears repetition to observe that the decision of the State Government is faulted here on the ground of non-compliance with statutory requirements and not on the ground of the merits of that decision.

       There is one more aspect of the matter, which needs to be discussed in the context of the submissions of the AGP concerning the justiciability of the policy decision here. It has been a well settled rule of administrative law that where the statue provides that power should be exercised in a specific manner, it should be done only in that maimer. Any breach of statute in this behalf makes the exercise of power ultra vires the statue.

       To summarise the position, the notification of the State Government is bad in law by reason of non-compliance with the statutory requirement of prior publication and consideration of objections or suggestions in terms of Section 4(4) of the MLR Code read with Section 24 of the Bombay General Clauses Act.