Important point
There is no proposition of law which requires even a proposal for Constitution of Municipal Corporation cannot be published without consultation.

Headnote:Constitution of India—Part IX-A—Articles 243P(e), 243Q, 243U—Maharashtra Municipal Councils Nagar Panchayat and Industrial Townships Act, 1965—Section 6(1)—Alteration of the limits of the municipal area—Bombay Provincial Municipal Corporation Act, 1949—Section 3—Specification of larger Urban Areas and Constitution of Municipal Corporations—Proposal for converting the Constitution of Jalgaon City from Municipal Council to Municipal Corporation—While final notification was yet to be issued writ petitions filed laying challenge to the proposal of State Government—Writ petition was allowed quashing the two sets of notifications proclamations dated 16.10.2001 and 15.11.2001 in respect of Jalgaon Municipal Council—Appeal to Supreme Court—Whether High Court was right? (No)—Appeal allowed—All the four grounds were held unsustainable.
       Held : A perusal of the judgment of the High Court shows that in substance four grounds have prevailed with the High Court for granting the relief to the writ petitioners: firstly, that the constitutional scheme of Part IXA of the Constitution contemplates the Municipal Council being taken over and succeeded by a Municipal Corporation without any hiatus in-between and as the term of the then existing Municipal Council was coming to an end on 16.12.2001 while the State Government/State Election Commission had not taken any steps for constitution of new Municipal Corporation so as to be in place and in existence ready to take over from the Municipal Council as its successor, the same was subversive of the spirit of Part IXA of the Constitution which contemplates the areas being administered by a Municipality (as defined in clause (e) of Article 243P as an institution of self government constituted under Article 243Q); the hiatus would result in administrator necessarily and per force of the events stepping in and taking over the Municipal Council; secondly, the census figure of August, 2001 on which was founded the action of the State Government were only "provisional" and not final and hence the action was premature; thirdly, the population of the area was denied an effective opportunity of raising objections in view of the set of proclamations dated 15.11.2001 curtailing the period appointed by set of proclamations dated 16.10.2001; the action was vitiated by throttling of the principles of natural justice, the observance whereof was statutorily mandated, and lastly, there was no consultation with Municipal Council as contemplated by proviso to sub-Section (1) of Section 6 of M.R. Municipal Councils Act. (Para 17)
       Held any hiatus between abolition of Municipal Council and Constitution of Municipal Corporation is not violative of the object and purpose of enacting parts IX and IXA of the Constitution.
       Held : Further that the figures of census published on 13.8.2001 by the Director of Census Operations Maharashtra were not provisional and could be acted upon before final population.
       Held thereafter : That the population of Jalgaon was not denied an effective opportunity of raising objections and thus the principles of natural justice were not violated.
       Held : However, no provision of law has been brought to our notice which requires even a proposal for constitution of Municipal Corporation cannot be published without consultation. Consultation must take place at any one stage before the finalisation of the proposal. By the time the writ petitions came to be filed before the High Court all that had taken place was the publication of notification proposing to constitute Municipal Corporation of the city of Jalgaon. Objections were invited. The final decision was yet to be taken which was stayed by the High Court. The requirement of consultation could have been satisfied at any time before publishing the final notification. The High Court was not right in finding fault with the process of constitution of the Municipal Corporation of the city of Jalgaon for want of consultation at the stage to which it had reached when the writ petitions came to be filed in High Court. (Para 39)
       Held finally : For the foregoing reasons we are of the opinion that the judgment of the High Court cannot be sustained on any of the grounds upheld by it. It is unfortunate that the litigation stalled the process of Municipal Corporation of the city of Jalgaon being constituted. The expenditure, the time and the energy of State machinery which was intended to be avoided by the State Government came to be wasted and the elections had to be held for constituting the successor Municipal Council. As on the day the Municipal Council is in place. Inasmuch as it has been held that the process for constituting the Municipal Corporation of the city of Jalgaon in place of Municipal Council does not suffer from any infirmity upto the stage to which it has proceeded, the State Government may now take a final decision and issue final notification depending on the formation of its opinion. The process of consultation within the meaning of proviso to Section 6(1) of M.R. Municipal Council Act shall now be completed if not already done. Needless to say the objections preferred by the Municipal Council of Jalgaon and 239 other objections shall be considered and disposed of in accordance with law if not already done. The appeals are allowed. The impugned judgment of the High Court is set aside. The writ petitions filed before the High Court are directed to be dismissed. (Paras 40 to 42)

Judgment

R.C. Lahoti, J.—Leave granted in both the SLPs.

2. In the year 2001, Jalgaon, a city situated in the State of Maharashtra, was an urban area administered by a Municipal Council constituted under the provisions of the Maharashtra Municipal Council Nagar Panchyat and Industrial Townships Act, 1965 (hereinafter, the M.R. Municipal Council Act , for short). The term of the Municipal Council as existing then was to end on 16th December, 2001.

In this judgment we would also be making reference to the provisions of the Bombay Provincial Municipal Corporation Act 1949 which for the sake of convenience and brevity will be referred to as B.P. Municipal Corporation Act.

3. Part IXA came to be inserted into the Constitution of India by Seventy Fourth Amendment w.e.f. 1.6.1993. This Part contemplates constitution of Nagar Panchayats, Municipal Councils and Municipal Corporations in every State. The three tools of local self government are contemplated by the Constitution to administer a transitional area, a smaller urban area and a larger urban area respectively. Article 243Q(2) defines these three areas to mean such areas 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 the Governor may deem fit specify by public notification for the purpose of Part IXA. We are concerned with smaller or larger urban areas based whereon a Municipal Council or a Municipal Corporation, respectively, shall be constituted. It is not disputed that so far as the factor of population is concerned, the bench mark dividing the areas to be administered by Municipal Council or by Municipal Corporation, as the case may be, is the population of three lakhs. The urban area having population less than three lakhs is a smaller urban area to be administered by Municipal Council and an urban area having a population of not less than three lakhs is a larger urban area to be administered by a Municipal Corporation.

4. On 13.8.2001, the Directorate of Census Operations, Maharashtra, published Census of India 2001, Series 28 Maharashtra, Provisional Population Totals, Paper-2 of 2001, Rural - Urban Distribution of Populations. According to the Census 2001, the urban population of Jalgaon, the city having the status of Municipal Council, was 3,68,579 persons. The Census also classifies the said total figure of persons by reference to age groups and literacy levels with which we are not concerned. The factum of publication of population totals as on 13.8.2001 and the correctness of the figure of population is not disputed by any of the parties.

5. The proposal for converting the constitution of Jalgaon city from Municipal Council into a Municipal Corporation was under consideration of the State Government for quite some time. According to the appellant -State of Maharashtra, ever since 1997 the thought was receiving consideration of the State Government that looking to all the relevant factors Jalgaon was appropriately suited to be upgraded to the status of a Municipal Corporation. Consultation in that behalf with the Municipal Council of Jalgaon by the State Government had been going on since 1993 but did not materialize as the official figures of population of Jalgaon urban area, as evidenced by the preceding Census of 1991, had not touched the bench mark of three lakhs.

6. On 16th October, 2001, the State Government published two proclamations, respectively under the provisions of the B.P. Municipal Corporations Act and M.R. Municipal Council Act reproduced as under:--

‘‘NOTIFICATION

Urban Development Department

Mantralaya, MUMBAI 400 032.

Dated the 16th October 2001

Bombay Provincial Municipal Corporation Act, 1949

No. GEN 1596/194/C.R. 126/96/UD-24 - The following draft of notification, which the Government of Maharashtra proposes to make in exe

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2003 Supreme(SC) 181

Important pointThere is no proposition of law which requires even a proposal for Constitution of Municipal Corporation cannot be published without consultation.

Important point
There is no proposition of law which requires even a proposal for Constitution of Municipal Corporation cannot be published without consultation.