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HIGH COURT OF MADHYA PRADESH
P.K. Jaiswal and Prakash Shrivastava, JJ.
Anil Trivedi and another v. State of M.P. and others
Writ Petition No.3538 of 2014 (Indore); Decided on 11.11.2014
Held : Therefore, the order of the Division Bench in the matter of Abhinsh Mahore (supra), will apply in full force in the present case also and in terms thereof, the Governor himself was required to consider the objections under section 405(2) and (3) of the Act before issuance of Notification under section 405(3) of the Act. Since in the present case the consideration of the objections is not by the Governor but it is either by the Collector or by the Principal Secretary with approval of the concerned Minister, therefore, we have no hesitation in holding that the impugned Notification dated 4.3.2014 under section 405(3) of the Act has been issued without complying with the provisions of section 405(2) of the Act and without deciding the objections in terms of the requirement of the said provision. Hence, the Notification dated 4.3.2014 cannot be sustained. 2014(III) MPWN 93 and 2014(III) MPWN 107 relied on. AIR 1995 SC 1512, AIR 1970 SC 1102 and (2005)2 SCC 92 distinguished.
(2) Constitution of India -- Art.243ZG -- election not called in question -- bar to interference by Courts in election matters will not be attracted. (2000)8 SCC 216 followed. AIR 1967 SC 669, (1985)4 SCC 689, 1995 Supp.(2) SCC 305 and (1996)3 SCC 416 distinguished.[Para 22
¼1½ uxjikfydk fuxe vf/kfu;e] 1956 ¼e-iz-½ && /kkjk 7, 405¼1½] 405¼2½ rFkk 405¼3½ && xzke iapk;rksa dks uxjikfyd fuxe dh ifjlhekvksa ds Hkhrj lfEefyr djus ds fy, vkeaf=r vkifŸk;k¡ && jkT;iky }kjk fopkj fd;k tkuk visf{kr A
vfHkfUk/kkZfjr % blfy,] izLrqr ekeys esa vfHkus’k ekgksj ¼iwoksZDr½] ds ekeys esa [kaM+ U;k;kihB dk vkns’k iw.kZ cy ls ykxw gksxk rFkk mlds fuca/kuksa ds vuqlkj] jkT;iky ls vf/kfu;e dh /kkjk 405¼3½ ds v/khu vf/klwpuk tkjh djus ds iwoZ vf/kfu;e dh /kkjk 405¼2½ rFkk ¼3½ ds v/khu vkifŸk;ksa ij fopkj djuk visf{kr FkkA D;ksfd izLrqr ekeys esa vkifŸk;ksa ij jkT;iky }kjk fopkj ugh fd;k gS cfYd ;g lac) ea=h ds vuqeksnu lfgr ;k rks dyDVj }kjk gS ;k eq[; lfpo }kjk] blfy,] gesa ;g vfHkfu/kkZfjr djus esa fgpd ugha gS fd vf/kfu;e dh /kkjk 405¼3½ ds v/khu vkf{kIr vf/klwpuk fnukad 4-3-2014 vf/kfu;e dh /kkjk 405¼2½ ds mica/kks dk vuqikyu fd, fcuk rFkk mDr mica/kksa dh vis{kk ds fuca/kuksa ds vuqlkj vkifŸk;ksa dk fofu’p; fd, fcuk tkjh dh xbZA blfy,] vf/klwpuk fnukad 4-3-2014 ekU; ugh dh tk ldrhA 2014¼3½ e-iz- ohDyh uksVzl 93 rFkk 2014¼3½ e-iz- ohDyh uksVzl 107 voyafcrA , vkb vkj 1995 ,l lh 1512] , vkbZ vkj 1970 ,l lh 1102 rFkk¼2005½ 2 ,l lh lh 92 izHksfnrA
¼2½ Hkkjr dk lafo/kku && vuq-243;N && fuokZpu iz’uxr ugha && fuokZpu lac/kh ekeyksa eas U;k;ky;ksa ds gLr{ksi dk otZu vkdf”kZr ugh gksxkA ¼2000½ 8 ,l lh lh 216 vuqlfjrA , vkb vkj 1967 ,l lh 669] ¼1985½ 4 ,l lh lh 689] 1995 lIyh- ¼2½ ,l lh lh 305 rFkk ¼1996½ 3 ,l lh lh 416 izHksfnrA ¼iSjk 22
Shrivastava, J. -- 1. This public interest petition is directed against the Notification dated 17.2.2012 issued under section 405(1) of the M.P. Municipal Corporation Act, 1956 (for short “the Act”) as also the Notification dated 4.3.2014 issued under section 405(3) of the Act.
2. In brief, the case of the petitioners is that they are the residents of Indore and the Notification dated 17.2.2012 was issued under section 405(1) of the Act inviting objections for including 23 village Panchayats (29 villages) specified in Schedule 1 of the notification within the limits of municipal corporation, Indore. Petitioners had submitted their objections on 16.3.2012. They had appeared before the Collector, Indore on 18.6.2012 to make submissions in support of their objections and the final Notification dated 5.2.2013 was issued for including the Gram Panchayats and villages specified in Schedule 1 of the said notification within the limits of the Municipal Corporation, Indore. Petitioners had earlier filed Writ Petition No.5196/2013 challenging the Notification dated 17.2.2012 and 5.2.2013 and this Court by order dated 3.2.2014 had set aside the Notification dated 5.2.2013 on the ground that the objections were not decided before issuing the final notification. The challenge to the Notification dated 17.2.2012 was kept open directing the competent authority under section 405(2) of the Act to decide all the objections including the challenge to Notification under section 405 of the Act. Respondent No.4 Collector, Indore had issued the notice dated 6.2.2014 for hearing of the objections and the opportunity of hearing to the petitioners was given on 13.2.2014 by him. Thereafter, the fresh Notification dated 4.3.2014 has been issued under section 405(3) of the Act for including 23 village Panchayats (29 villages) within the municipal limits of Indore, which has prompted the petitioners to file the present writ petition.
3. A reply has been filed by the respondents No.1 to 4 seeking to justify inclusion of 29 villages within the limits of Municipal Corporation, taking the stand that the impugned notifications have been issued after following due process and procedure as prescribed under section 405 of the Act.
4. The petitioner No.1 present in person submits that the objections have not been decided by the Governor, as required by section 405(3) of the Act and he has also referred the communication dated 9.1.2008 issued by the State providing the guidelines for including the limits of the localauthorities and submitted that the factors contained in section 7 of the Act have not been considered while including 29 villages within the municipal limits. He has also submitted that the issue relating to the exercise of the power by the Governor himself under section 405(3) is concluded by the recent Division Bench judgment.
5. Learned Advocate General appearing for the State has questioned the locus of the petitioners to file the present petition and has submitted that the function of including the village panchayat and villages within the municipal limits is legislative function, therefore, rules of natural justice will not be attracted and that it is a policy matter. He has also submitted that under section 405(3) of the Act as per rules of business, Governor himself is not required to decide the objection but it is the State Government which has to take the decision. He has also submitted that the internal circular (Annexure P-5) has no force of law.
6. We have heard the learned counsel for the parties and perused the record.
7. We do not find any merit in the preliminary objection of the State questioning the locus of the petitioners in view of the undisputed fact that the petitioners are residents of Indore and the municipal limits of Indore are sought to be altered by the impugned notification. These very petitioners had earlier succeeded in their challenge to the Notification dated 17.2.2012 in Writ Petition No.5196/2013 and they had also subm
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