The court emphasized the mandatory requirement of the Governor's consideration of objections under Section 5A(2) & (3) of the Madhya Pradesh Municipalities Act, 1961.

JUDGMENT

Shantanu Kemkar, J.

1. This order will govern disposal of Writ Petition (PIL) No. 4904/2014 and Writ Petition No. 4187/2014. For the sake of convenience, facts are taken from Writ Petition (PIL) No. 4904/2014.

2. By filing this petition in the nature of public interest litigation, the petitioners have challenged the notification dated 09.01.2013 published on 08.02.2013 (Annexure P/1) for inclusion of area specified in it, within the limits of Municipal Area of Municipal Council, Sarangpur, District Rajgarh and also the final notification dated 30.01.2014 published on the same day (Annexure P/7) issued by the respondents. The first notification has been issued by the respondents mentioning it to be under Section 5(1) & (2) of the Madhya Pradesh Municipalities Act, 1961 (for short, the Act of 1961) whereas the second notification (Annexure P/7) has been issued mentioning it to be under Section 5A of the Act of 1961.

3. According to the learned counsel for the petitioners, both the notifications are not issued under appropriate provisions of the Act of 1961 and are liable to be quashed for want of compliance of the mandatory requirement of the provisions of Act of 1961, on the part of the respondents. He submits that in the first notification there is a mention of being issued under Section 5(1) and (2) of the Act of 1961, whereas from the reading of the notification, it appears that the same is not in consonance with the requirement of the said provision. He also submits that as provided under Section5A(2) and (3), the objections which were submitted in pursuance to the first notification (Annexure P/1), have not been considered and decided by the Governor, thus there is no compliance of the mandatory requirement of Section 5A(2) and (3) of the Act of 1961. He stated that though in the writ petition various grounds have been raised to challenge both the notifications, but if this Court finds that the ground regarding non-consideration of the objections by the Governor before issuance of the final notification is upheld, this petition may be disposed of on that ground alone; reserving his right to agitate about the validity of the first notification, if the Governor/Competent Authority rejects the objections.

4. Ms. Mini Ravindran, learned Deputy Government Advocate for the respondents, on the other hand, supported the impugned notifications but has not disputed that the first notification has been issued mentioning wrong provision and it ought to have been issued under Section 5A(1) of the Act of 1961. She submits that before Hon'ble Governor, the file received from the Collector was also placed along with the file of the Department. And thereafter, the Governor granted the approval on the file. Thus, according to her, there is sufficient compliance of Section 5A(2) and (3) of the Act of 1961.

5. Since we are examining the question as to whether before issuance of the final notification, the Hon'ble Governor has considered and decided the objections, we are not touching the ground about the challenge to the first notification.

6. In order to appreciate the controversy about the final notification dated 30.01.2014, it would be appropriate to extract Section 5A of the Act of 1961: -

"5-A. Power of Governor to include or exclude certain area.-

(1) The Governor may, by notification in the Gazette, declare the intention to include within or exclude from the limits of a municipal area, any specified area.

(2) If the local authority having jurisdiction in the said area or any person resident therein, objects to such declaration, such authority or person may submit an objection in writing to the Collector within a prescribed period and the Governor shall take such objection into consideration.

(3) When the said period has expired and the Governor has considered the objection under sub-section (2), the Governor may, by notification, include within or exclude from the limits of the municipal area, any specified area;

Provided that when an ar