# THE STATE OF MAHARASHTRA AND ANR v. THE JALGAON MUNICIPAL COUNCIL AND ORS

- **Citation:** [2003] 1 S.C.R. 1112
- **Court:** Supreme Court of India
- **Decided:** 2003
- **Case number:** Civil Appeal No. 1296-1297 of 2003
- **Bench:** R.C. Lahoti, Brijesh Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-maharashtra-and-anr-v-the-jalgaon-municipal-council-and-ors-19029
- **Pages:** 38

## Headnote

Municipalities: .
Maharashtra Municipal Council Nagar Panchayat and Industrial
C Township Act, 1965(Bombay Provincial Municipal Corporation Act, 1949:
Sections 2, 3 and ·613-Conversion of Municipal Council to Municipal
·Corporation.
Hiatus between-Whether violative of Part IX A of Constitution-Held,
since hiatus between abolition of Municipal Council and constitution of
D Municipal Corporation is an unavoidable event which must take place in
conversion thus not violative of Constitution-Constitution of India, 1950 Part
IX A.
Conversion notification on publishing of provisional population total
figure and not final-Validity of-Held, since population crossed the bench_
E mark of 3 lakhs, thereby providing requisite foundation for State Government
to take decision of constitution of Municipal Corporation and also no act, rule
being issued contemplating publication of final total population after provisional
list, action of State Government not premature.
F
Effective opportunity to raise objections •. whether denied-Held, since
amendment resulted into curtailing of period appointed for inviting objections
done only for achieving larger public interest, principles of natural justice not
violated-Administrative Law.
Municipal Corporation-Want of consultation with Municipal CouncilScope of-Held: consultation with Municipal Council mandat01y since
G conversion involves specification of large urban area and constitution of
Municipal Corporation of the city and also involves whole of the local area
comprising municipal area of city ceasing to be a municipal area with effect
ji·om the date of change.
H
Jalgaon was an urban area administered by a Municipal Council
1112
STATE v. JALGAON MmTICIPAL COUNCIL
1113
constituted under the provisions of the Maharashtra Municipal Council A
Nagar Panchayat and Industrial Township Act, 1965. Appellant-State
Go,,ernment proposed conversion of it from Municipal Council into
Municipal Corporation. Thereafter, appellants published two
proc}amations-·under the Bombay Provincial Municipal Corporation Act,
1949 and the Maharashtra Municipal Council Nagar Panchayat and B
Industrial Township Act, 1965. Respondents filed writ petition challenging
the notifications. High Court allowed the petition quashing the
-"'
notifications. Hence the present appeal.
+
Respondents relying on the provisions of Article 243U(3)(a) of the
Constitution contended that the steps for constitution of Municipal C
Corporation should be planned and scheduled, well in advance of time of
the date by which the term of existing Municipal Council is coming to an
end so as to see that successor Municipality-Municipal Corporation
proposed to be constituted, is ready to take over from the MunicipalityMunicipal Council proposed to be abolished without there being any hiatus
in-between necessitating the appointment of an administrator to take D
charge in the interregnum of the two events; and that the figures of census
published by the Director of Census Operation, Maharashtra were only
provisional and could not have been acted upon unless the final population
totals were published.
Appellants contended that the process of conversion of an area from E
M1'.nicipal Council to Municipal Corporation would necessarily involve a
hiatus which is an unavoidable necessity; and that the steps for constitution
of Municipal Corporation fell within the purview of section 3 of the 1949
Act \Vhich requires the specification of larger urban area, and constitution
of Municipal Corporation therein to be preceded by a notification subject F
to the condition of previous publication.
Allowing the appeals, the Court
HELD: I.I. The hiatus between abolition of Municipal Council and
constitution of Municipal Corporation is an unavoidable event which must G
take place in the process of conversion of Municipal Council into a
Municipal Corporation. Reliance on Article 243U of the Constitution is
misconceived. The use of expression 'a municipality' in sub-article (3) of
Art

## Text

_Characters 0–39,714 of 88,806. This is a partial read: ask again with offset=39714 for what follows._

A
THE STATE OF MAHARASHTRA AND ANR.
v.
THE JALGAON MUNICIPAL COUNCIL AND ORS.
FEBRUARY 14. 2003
B
[R.C. LAHOTI AND BRIJESH KUMAR, JJ.]
Municipalities: .
Maharashtra Municipal Council Nagar Panchayat and Industrial
C Township Act, 1965(Bombay Provincial Municipal Corporation Act, 1949:
Sections 2, 3 and ·613-Conversion of Municipal Council to Municipal
·Corporation.
Hiatus between-Whether violative of Part IX A of Constitution-Held,
since hiatus between abolition of Municipal Council and constitution of
D Municipal Corporation is an unavoidable event which must take place in
conversion thus not violative of Constitution-Constitution of India, 1950 Part
IX A.
Conversion notification on publishing of provisional population total
figure and not final-Validity of-Held, since population crossed the bench_
E mark of 3 lakhs, thereby providing requisite foundation for State Government
to take decision of constitution of Municipal Corporation and also no act, rule
being issued contemplating publication of final total population after provisional
list, action of State Government not premature.
F
Effective opportunity to raise objections •. whether denied-Held, since
amendment resulted into curtailing of period appointed for inviting objections
done only for achieving larger public interest, principles of natural justice not
violated-Administrative Law.
Municipal Corporation-Want of consultation with Municipal CouncilScope of-Held: consultation with Municipal Council mandat01y since
G conversion involves specification of large urban area and constitution of
Municipal Corporation of the city and also involves whole of the local area
comprising municipal area of city ceasing to be a municipal area with effect
ji·om the date of change.
H
Jalgaon was an urban area administered by a Municipal Council
1112
STATE v. JALGAON MmTICIPAL COUNCIL
1113
constituted under the provisions of the Maharashtra Municipal Council A
Nagar Panchayat and Industrial Township Act, 1965. Appellant-State
Go,,ernment proposed conversion of it from Municipal Council into
Municipal Corporation. Thereafter, appellants published two
proc}amations-·under the Bombay Provincial Municipal Corporation Act,
1949 and the Maharashtra Municipal Council Nagar Panchayat and B
Industrial Township Act, 1965. Respondents filed writ petition challenging
the notifications. High Court allowed the petition quashing the
-"'
notifications. Hence the present appeal.
+
Respondents relying on the provisions of Article 243U(3)(a) of the
Constitution contended that the steps for constitution of Municipal C
Corporation should be planned and scheduled, well in advance of time of
the date by which the term of existing Municipal Council is coming to an
end so as to see that successor Municipality-Municipal Corporation
proposed to be constituted, is ready to take over from the MunicipalityMunicipal Council proposed to be abolished without there being any hiatus
in-between necessitating the appointment of an administrator to take D
charge in the interregnum of the two events; and that the figures of census
published by the Director of Census Operation, Maharashtra were only
provisional and could not have been acted upon unless the final population
totals were published.
Appellants contended that the process of conversion of an area from E
M1'.nicipal Council to Municipal Corporation would necessarily involve a
hiatus which is an unavoidable necessity; and that the steps for constitution
of Municipal Corporation fell within the purview of section 3 of the 1949
Act \Vhich requires the specification of larger urban area, and constitution
of Municipal Corporation therein to be preceded by a notification subject F
to the condition of previous publication.
Allowing the appeals, the Court
HELD: I.I. The hiatus between abolition of Municipal Council and
constitution of Municipal Corporation is an unavoidable event which must G
take place in the process of conversion of Municipal Council into a
Municipal Corporation. Reliance on Article 243U of the Constitution is
misconceived. The use of expression 'a municipality' in sub-article (3) of
Article 243U in the context and in the setting in which it is employed
suggests and means the duration of the same type of municipality coming
to an end and the same type of successor municipality taking over as a H
1114
SUPREME COURT REPORTS
[2003] I S.C.R.
A consequence of term of the prexious municipality coming to an end. Article
243U cannot be ·applied to a case ,\·here the area of one description is
converted into an area of another description and one description of
municipality is ceased by constituting another municipality of a better
description. Article 243U(~) cannot be pressed into service t.o claim on that
. an election to constitute a rriunici"pal corporation is required to be
B completed before the expiry or du ration or a municipal council.
.
I J138-C-EI
1 .2. The constituHon of Municipal Corporation would require
notification of larger urban area and a Municipal Corporation to govern
C it. The area shall have to· be divided into wards with the number of
corporators specified and reservations made. The Corporation would need
to nominate councilors, Th~· territorial limits may need to be altered. The
State Election Commission cannot conduct election without specifying
numbers and boundaries of wards. New rules, bye-lal't\'~ shall need to be
framed and municipal tax structure may need to be recast. The statutory
D provisions do not contemplate a situation where the same area may be
called a smaller and larger area simultaneously and process of constitution
of Municipal Corporatio,n being commenced and completed though the
Municipal Coundl continues to exist. Such an action would result in
anomaly and confusion if not chaos. It 138-F-H)
E
F
1.3. The law does not permit holding of an office as an Administrator
by any officer/officers beyond the first meeting of the Corporation or a
period of six months fr~rn the date of specification of an area as a larger
urban area. Thus the maximum period for which an Administrator may
be in office shall be 'six months and within this period the State
Government and the State Election Commission shall positively bring the
Municipal Corporation in existence so as to take over the administration
from the Administrator. f ll48-D-E I
2. A decision of constituting a Municipal Corporation so as to replace
a Municipal Council is dependent on the figure of population of the urban
G area. Neither the Constitution nor any other relevant provision of any
statute prescribes or defines the source or material wherefrom the State
Government shall form an opinion as to the population existing in any
urban area. The only requirement is of the population crossing the bench
mark of three lakhs. The correctness of the figure of population in Jalgaon
F'f. urban area having rea.ched the figure of 3,68,579 as on 13.8.2001 as
STATE v. JALGAON MUNICIPAL COUNCIL
1115
published by the Director of Census Operation Maharashtra in the A
document 'Provisional Population Totals' is not disputed by anyone. So
long as the correctness of the fact that the population had crossed the
bench mark of three lakhs-and thereby pro,·ided the requisite foundation
for the State Government to take a decision of constitution of a l\'lunicipal
Corporation by treating Jalgaon as a larger urban area-~annot be B
disputed much less doubted. So also no act, rule or any instruction issued
by the Government of India or any competent authority has been brought
to the notice which contemplates a 'Final Population Total' being
published after the publication of the so-called provisional list. It cannot
be said that the State Government should have awaited for the publication
of a "Final Population Totals" and should not have acted on provisional C
totals. 11141-G-H; 1142-A-C)
3.1. It is true that sub-section (3) of Section. 3 of the 1965 Act
prescribes for inviting objections by affording two months' time and that
was done. However, the statutory provfSion was amended by Ordinance
and the period of 'two months' stood substituted by a period of 'not less D
than 30 days'. The statutory provision has to be read as amend.ed. The
petitions filed before the High Court did not lay any challenge to the vires
> .
of the ordinance either on the ground of un·reasonabilit)' or on the possible
ground of curtailing a vested right to prefer objections or on the ground
of un-reasonability. In the absence of any challenge having been laid, the E
constitutional validity of the amendment cannot be gone into. The validity
of the action i.e. the notice inviting objections has to be tested in the light
of the statutory r~quirement that the period of notice statutorily prescribed
is of a duration of'not less than 30 days' which in the case· at hand it is.
Thus the notification satisfies the requirement of the principles of natural
justice as also of the procedure statutorily prescribed. fl 145-A-CJ
F
3.2. Whosoever wished to prefer the objections would not necessarily
wait for the last day though he has a right to do so. The amendment
ordinance and the notifications dated 15.1 l.2001 issued thereunder did not
abruptly close the invitation to objections, only the period was shortened.
Those, over and above the 239 who had already preferred objections, could G
still have preferred the objections if they intended to do so. On the totality
of the facts and circumstances of the case, neither the principles of natural
justice have been violated nor is there any breach committed of the
procedural requirements prescribed by Section 3(3) read with Section 6
of the 1965 Act as amended by the ordinance. 11146-F, GI
H
1116
SUPREME COURT REPORTS
[20031 I S . .::'.lt ·
A
3.3. The statement accompanying the Ordinance spells out the need
for its promulgation. General elections to four (including Jalgaon) out of
the seven Municipal Councils were scheduled to be held in the first week
of December 2001. The tenn of those Municipal Councils was coming to
an end in the month of December, I 2001 itself. The new Municipal
B Councils were mandatorily required to be constituted before the expiry
of the term of the existing councils. If the proposal of the Government to
establish Municipal Corporations in those four areas was not finalized
before the expiry of the said term of the existing Councils the State
Government would have been required to undertake the electi~ns which
would have involved substantial expenditure of public money and wastage
C of time and energy of government machinery-all avoidable. It was this
consideration of public interest which persuaded the State Government
to curtail the period of two months to such period not being less than 30
days so that decision on constitution of Municipal Corporation, either way
but finally could be taken earlier and at an appropriate time· and to
proceed thereafter either with Municipal Council elections or the process
D of constituting Municipal Corporation consistently with the decision taken.
One of the principles of good governance .i.n a democratic society is that
smaller interest must always give way to larger public interest in case of
conflict. The amendment resulting into curtailing of the period appointed
for inviting objections though restricted the period, by shortening it to the
~
E extent necessary in the then circumstances, it was done only for achieving
larger public interest. No fault can be found therewith. The period allowed
for inviting objections conforms to the statutory provision and is not shown
to have caused any prejudice to any one. 11146-H; 1147-A-DI
Russell v, Duke of N01folk, (1949) 1 All ER 109, 118 and Lloyd v ..
F McMohan, (1987) AC 625, 702, referred to.
Administrative law, Wade & Forsyth, Eighth Edition 2000 pp. 491,
492, 493, 543-544, referred to.
4. Consultation is not one of the requirements of Section 3 and
G therefore, the High Court erred in holding that for want of consultation,
the process of constitution of Municipal Corporation of the city of Jalgaon
was vitiated. The .Jalgaon Municipal Council was already in existence,
Jalgaon being smaller urban area. It was proposed to be converted into a.
°':-
larger urban area. This process would involve abolition of 'municipal area'
,. H ·as defined in clause (24) of Section 2 of 1965 Act. Any of the events
..
I
STATEv. JALGAON MUNICIPAL COUNCIL
1117
provided by clauses (a), (b), (c) and (d) of sub-section (I) of Section 6 must A
satisfy the requirement of consulting the Municipal Council provided for
by proviso to sub-section (1) before issuing the notification and before that,
notification should also folio" the procedure prescribed by SectiOfi 3
111utatis nuaandis. Section 6(1)(d) co,·ers "·ithin its scope any event, the
declaration whereof has the effect of the whole of any area comprising a B
municipal area ceasing to be a municipal area. Thus conversion-of Jalgaon
Municipal Council into Municipal Corporation involves not only
specification of large urban area and constitution of Municipal
Corporation of the city of Jalgaon, it also involves the whole of the local
area comprising the municipal area of Jalgaon ceasing to be a municipal
area with effect from the date of change. Therefore, consulting the C
Municipal Council is mandatory. Ho\vever, no provision of law has been
brought to the 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 D
proposing to constitute Municipal Corporation of the city of Jalgaon.
Objections were invited. The final decision 'vas yet to be taken \Vhich 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 'vith the process of the constitution E
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 the High Court. [1147-F-H; 1148-A-D[
5. It is unfortunate that the litigation stalled the process of Municipal
Corporation of the city of Jalgaon being constituted. The expenditure, the F
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 does not suffer from G
any infirmity upto the stage to which it has proceeded, the State
Government may DO'\\' 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 the 1965 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 H
1118
SUPREME COURT REPORTS
(2003] I S.C.R.
A considered and disp::ised of in accordance with law if not already done.
11148-F-H; H49-AI
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1296-1297 of
2003.
B
From the Common Judgment and Final Order dated I 0.12.200 I and
11.12.200 I passed by High Court of Judicature of Bombay Bench at
Aurangabad in WP. No. 4730/200 I and W.P. No. 4830/200 I.
R. S'.lndravardan, Rakesh Dwivedi, U.U. Lalit, Arun Pednenkar, S.S.
Shinde, V.N. Raghupathy, A.S. Bhasme, Manoj Kumar M·ishra, Shivaji M.
C Jadhav, Subrat Birla, S.C. Birla, Himanshu Gupta and T. Raja for the appearing
parties.
D
The Judgment of the Court was delivered by
R.C. LAHOTI, J. Leave granted in both the SLPs.
In the year 200 I, 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 Panchayat 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
E end on 16th December, 200 I.
F
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.
Part IXA came to be inserted into the Constitution of India by Seventy
~
Fourth Amendment w.e.f. 1.6.1993. This Paft contemplates constitution of
Nagar Pan.:hayats, 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
G 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
H specify by public notification for the purpose of Part IXA. We are concerned
-
..
STATE v. JALGAON MUNICIPAL COUNCIL [R.C. LAHOTI. J.]
1119
vvith s1naller or larger urban areas based \Vhereon a Municipal Council or a A
Municipal Corporation. respectively. shall be constituted. It is not disputed
ythat so far as the factor of population is concerned, the bench rnark dividing
the areas to be ad111 inistered by Municipal Council or by Municipa!
Corporation. as the case 111ay be. is the population of three lakhs. The urban
area having population less than three lakhs is a s1naller urban area to be B
ad1ninistered by Municipal Council and an urban area having a popul2.tion of
not less than three lakhs is a larger urban area to be administered by a
Municipal Corporation.
On 13.8.200 I. the Directorate of Census Operations, Maharashtra,
published Census of India 200 I, Series 28 Maharashtra, Provisional Population C
Totals, Paper-2 of 2001, Rural Urban Distribution of Populations. According
to the Census 200 I, 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 D
disputed by any of the panies.
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.
On 16th October, 200 I, 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 Depanment Mantralaya,
MUMBAI 400 032.
Dated the 16th October 200 I
E
F
G
H
1120
SUPREME COURT REPORTS
(2003] I S.C.R.
A
Bombay Provincial Municipal Corporation Act, 1949
B
c
D
E
F
G
H
No. GEN 1596/194/C.R. 116'96'UD-14-The following draft of
notification, which the Government of Maharashtra proposes to make
in exercise of the powers conferred by sub-Section (2) of Section 3
of the Bombay Provincial Municipal Corporation Act, 1949 (Born.
LIX of 1949), is hereby published, as required by sub-Section (4) of
said Section 3 of the said Act. for the information of all persons
likely to be affected thereby and notice is hereby given that the said
draft will be taken into consideration by the Governme~t of
Maharashtra on or after day of 18th December, 200 I.
·
2. Any objection or suggestion, which may be received by the Collector
of the District of Jalgaon, from any person with respect to the aforeSaid
draft, before the aforesaid date will be considered by the Government.
NOTIFICATION
No. GEN 1596/194/C.R. 126/96/UD-24 Whereas the total population
of the Jalgaon Municipal Council comprising Jalgaon smaller urban
area, District Jalgaon, is accord in~ to the provisional figures of the
Census of the year 2001, is 3,68,579;
And whereas, the Government of Maharashtra having regard to
the factors menti~:med in clause (2) of Article 243-Q of the Constitution
of India considers it expedient to declare, under sub-Section (2) of
Section 3 of the Bombay Provincial Municipal Corporations Act,
1949 (Born. LIX of 1949), (hereinafter referred to as "the said Act"),
the said Jalgaon smaller urban area of the Jalgaon Municipal Council
to be larger urban area;
Now, therefore, in exercise of the powers conferred by sub-Section
(2) read with sub-Section (2A) of Section 3 of the said Act, and after
pr.evious publication of the draft notification as required by sub-Section
(4) of said Section 3, the Government of Maharashtra hereby specifies
the 18th Dece'mber, 2001 to be the date from which the area specified
in the Schedule appended hereto, which comprises of the whole of
the Jalgaon smaller urban area in District Jalgaon, shall be Jalg~on
larger urban area, which shall form a city, having a Corporation to be
known by the name of"Municipal Corporation of the City of Jalgaon"
for the purpose of the said Act.
STATE v . .IALGAON MUNICIPAL COUNCIL [R.C. LAHOTI. J.I
1121
SCHEDULE
A
Area. \\'hich shall forn1 the Jalgaon larger urban area. \\hich shall
fonn a city. having a Corporation to be kno,vn by the nan1e of
··rv1unicipal Corporation of the City of Jalgaon··
.. Jalgaon s1naller urban area Dist. Jalgaon"
By Order and in the name of the Governor of Maharashtra.
Sd/-
(Ramanand T1wari)
Principal Secretary to Governinent
B
.................................. c
PROCLAMATION
Urban Development Department
Mantralaya, Mumbai 400 032
Dated the 16th October 200 I
Maharashtra Municipal Councils, Nagar Panchayats
and
Industrial Townships Act, 1965.
No. GEN 1596/194/C.R. 126/96/UD-24: Whereas by Government
Notification, Urban Development Depa1~ment No. GEN 15961194/
C.R. 126/96/U.D.-24, dated the 16th October 2001, issued in exercise
D
E
of the powers conferred by sub-Section (2) of Section 3 of the Bombay
Provincial Municipal Corporations Act, 1949 (Born. LIX of 1949),
the Government of Maharashtra has announced its intention to declare F
the Jalgaon smaller urban area in the Jalgaon District to be a larger
urban area which shall form a city and shall have a corporation by the
name "Municipal Corporation of the City of Jalgaon".
Now, therefore, in pursuance of the provisions of sub-Section (3)
of Section 3 read with sub-Section (2) of Section 6 of the Maharashtra G
Municipal Councils, Nagar Panchayats and Industrial Townships Act,
1965 (Mah. XL of 1965) (hereinafter referred to as "the Municipal
Councils Act"), the Government of Maharashtra hereby announces its
intention to issue a notification under clause (d) of sub-Section (I) of
Section 6 of the Mun1ci~al Councils Act that the existing Jalgaon H
1122
SUPREME COURT REPORTS
f2003] I S.C.R.
A
smaller urban area of the Jalgaon Municipal Council shall cease to be
a municipal area within· effect from the date of coming into force of
the notification issued under sub-Section (2) of Section 3 of the
Bombay Provincial Municipal Corporations Act, 1949 (Born. LJX of
1949). specifying Jalgaon larger urban area, which shall form a city
B
c
and shall have a Municipal Corporation known by the name
"Municipal Corporation of the City of Jalgaon".
2. All persons who ente1tain any objections to the said proposal are
required to submit the same, with reasons therefore in writing to the
,L
Collector of the District of Jalgaon within two months from the date
of publication of this Proclamation in the Official Gazette.
By Order and in the name of the Governor of Maharashtra.
Sd/-(Ramanand Tiwari) Principal Secretary to Government"
On 15th November 200 I, another two proclamations were issued under
D the said two acts respectively and by reference to the provisions mentioned
therein, which are reproduced hereunder:
E
F
G
PROCLAMATION
Urban Development
Department Mantralaya, Mumbai 400 032
Dated the 15th November 2001
Maharashtra Municipal Councils, Nagar Panchayats
and
Industrial Townships Act, 1965
No. GEN 1596/194/CR-126/96/UD-24:
Whereas by Government proclamation, Urban Development
Department No. GEN 1596/194/CR-126/96/UD-24 dated the 16th
October, 200 I, issued in exercise of the powers conferred by subSection (3) of Section 3 read with sub-Section (2) of Section 6 of the
Maharashtra Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965 (Mah. XL of 1965 (hereinafter referred to as
"Municipal Councils Act"), the Government of Maharashtra invited
objections within two months to its proposal to notify that the Jalgaon
smaller urban area of Jalgaon Municipal Council shall cease to be a
H
Municipal area within the meaning of the Municipal Councils Act;
.
'
STATE v. JALGAON MUNICIPAL COUNCIL fR.C. LAHOTI. J.)
1123
And whereas the provisions of sub-Section (3) of the Municipal A
Councils Act having been retrospectively a111ended with effect fro1n
the 16th October, 200 I, by the Maharashtra Municipal Councils. Nagar
Panchayats and Industrial Townships (Second Amendment) Ordinance,
2001 (Mah. Ord. XXXVII of2001). with a view to provide that the
objection to the proposal shall be entertained within a period of thirty B
days on such other period not less than thirty days as may be specified
by the State Government by a notification in the Official Gazette.
Now, therefore, in exercise of the po\vers conferred by sub-section
(3) of Section 3 of the Municipal Councils Act as amended by the
Maharashtra Municipal Councils, Nagar Panchayats and Industrial C
Townships (Second Amendment) Ordinance, 200 I, the Government
of Maharashtra hereby specifies the 21st November, 200 I to be the
date on or before which the objections pursuant to the said
proclamation shall be entertained.
By Order and in the name of the Governor of Maharashtra.
Sd/-
(Ramanand Tiwari)
Principal Secretary to Government"
"NOTIFICATION
Urban Development Department
Mantralaya, Mumbai 400 032.
Dated the 15th November 2001
Bombay Provincial Municipal Corporation Act, 1949
No. GEN 1596/194/C.R. 126/96/UD-24:-
In exercise of the powers conferred by sub-section (2) of Section
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3 read with sub-Section (4) thereof of the Bombay Provincial
Municipal Corporations Act, 1949 (Born. LIX of 1949), and of all
other powers enabling it in that behalf, the Government of Maharashtra G
hereby appoints 21st November, 2001 to be the date on or before
which the objections or suggestions in pursuance of the Government
Notification Urban Development No. GEN 1596/194/C.R. 126/96/
UD-24 dated the 16th October, 2001 shall be received and for that
purpose, amends the said notification as follows, namely:-
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In the said notification, for the words and figures "18th day of
B
December 200 I", wherever it occurs the words and figures ·'21st
November 200 I'' shall be substituted.
B: Order and in the name of the Governor of Maharashtra.
Sd/-
. (Ramanand -Ti\\1ari) ·
Principal Secretary to Government"".
.J...
Digressing a little from narration of events, it would be appropriate to
notice the relevant Constitutional and statutory provisions as the same would
C facilitate the appreciation of relevant events which followed. So far as the
Constitution is concerned, the following are the relevant articles contained in
Part IXA of the Constitution:-
243P. Definitions.-ln this Part, unless the context otherwise requi1·es,
xxx
xxx xx~ xxx xxx xxx xxx
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(d) 'Municipal area' means the territorial area of a Municipality as is
notified by the Governor;
(e)
'Municipality' means an institution of self-government constituted
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under article 243Q;
xxx xxx xxx xxx xxx xxx
XXX XXX·XXX XXX XXX XXX
(g) 'population' means the population as ascertained at the last
F
preceding census of which the relevant figures have. been
published.
243Q. Constitution of Municipalities.-{)) There shall be constituted
in every State,-
G
(a)
a Nagat Panchayat (by whatever name called) for a transitional
area, that is to say, an area intransition from a rural area to ·an
urban area.
(b) a Municipal Couricil for a smaller urban area; and
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(c)
a Municipal Corporation for a larger urban area,
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1125
in accordance with the provisions of this Part:
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Provided that a Municipality under this clause 111ay not be
con.stituted in such urban area or part thereof as the Governor 1nay,
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 B
notification, specify to be ai1 industrial township.
(2) In this article, 'a transitional area', 'a smaller urban area' or
'a larger urban area' n1eans such area as the Governor may, having
regarded to the population of the area, the density of the population
therein, the revenue ge~erated for local administration, the percentage C
of employment in non-agricultural activities, the economic importance
or such other factors as he may deem fit, specify by public notification
for the purposes of this Part.
xxx xxx xxx xxx xxx xxx
243U. Duration of Municipalities, etc.-(l) Every Municipality, unless
sooner dissolved under any law for the time being in force, shall
continue for five- years fro1n the date appointed for its first meeting
and no longer:
D
Provided that a Municipality shall be given a reasonable E
opportunity of being heard before its dissolution.
(2) No amendment of any law for the time being in force shall
have the effect of causing dissolution of a Municipality at any level,
which is functioning immediately before such amendment, till the
expiration of its duration specified in clause (1).
F
(3) An election to constitute a Municipality shall be completed,-
( a) before the expiry of its duration specified in clause ( 1 );
(b) before the expiration of a period of six months from the date
of its dissolution:
G
Provided that where the remainder of the period for which the
dissolved Municipality would have continued is less than six months,
it shall not be necessary to hold any election under this clause for
constituting the Municipality for such period.
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(4) A Municipality constituted upon the dissolution of a
Municipality before the expiration of its duration shall continue only
for the remainder of the period for which the dissolved Municipality
\\'ould have continued under clause (I) had it not been so dissol\'ed.··
On 15th November, 200 I, the Governor of Maharashtra promulgated
B Maharashtra Ordinance No. 37 of 200 I. The text of the Ordinance is brief
and it would be useful to set out the same in its entirety as under:-
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"MAHARASHTRA GOVERNMENT GAZETTE
URBAN DEVELOPMENT DEPARTMENT
MANTRALA YA, MUMBAI 400 032,
DATED 15TH NOVEMBER, 2001
MAHARASHTRA ORDINANCE NO. XXXYII OF 2001
AN ORDINANCE
Further to amend the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965
WHEREAS both Houses of the State Legislature are not in session;
AND WHERAS the Governor of Maharashtra is satisfied that
circumstances exist which render it necessary for him to take immediate
action fmther to amend the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, I 965, for the purposes
hereinafter appearing;
NOW, THEREFORE, in exercise of the powers conferred by clause
(I) of article 213 of the Constitution of India, the Governor of
Maharashtra is hereby pleased to promulgate the following Ordinance,
namely:
I. Short title and commencement (I) This Ordinance may be called
the Maharashtra Municipal Councils, Nagar Panchayats and Industrial
_},...
Townships (Second Amendment) Ordinance, 200 I.
""'·
(2) It shall be deemed to have come into force on the 16th October,
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2001.
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SLATE r JALGAON MUNICIPAL COUNCIL [R.C. LA!iOTI. !.]
1127
2. Amendment of section 3 of Maharashtra XI of 1965 In section 3 A
of the Maharashtra Municipal Councils, Nagar Panchayats and
Industrial To" nships Act. I 965 (hereinafter referred to as "the
Municipal Council Act .. ) in sub section (3) for the \VOrds "t\VO 1nonths··
the words "not less than thirty days .. shall be substituted.
3. Removal of doubt For the removal of doubt it is hereby declared B
that sub-section (3) of Section 3 of the Municipal Councils Act having
been amended retrospectively. with effect from the 16th October.
2001 by the Maharashtra Municipal Councils, Nagar Pan~hayats and
Industrial Townships (Second Amendment) Ordinance, 200 I
(hereinafter, in this section, referred to as "the said Ordinance") al\d C
accordingly
(i) any Gove111ment Procla1nation Notification Order or Instrument
issued or purported to have been issued in exercise or in pursuance
of the provisions of sub-section (3) of section 3 read with subsection (2) of section 6 of the Municipal Councils Act on or after D
the I 6th October, 200 I till the date of publication of the said
Ordinance, shall be and shall be deemed to have been issued
under the said sub-section (3) as amended by the said Ordinance-
(hereinafter, referred to as "the amended sub-section(3)"); and
(ii) the two months period specified for entertaining any objections
to a proposal contained in such Government Pr6clan1ation,
Notification. Order or Instrument shall be read and shall always
be read as a period being not less than the period of thirty days
as specified or may be specified under the amended sub-section
(3), in such Proclamation, Notification, Order or Instrument, as
E
the case may be, for the date of publication of such Proclamation, F
Notification, Order or Instrument in this Official Gazette; and
(iii) it shall be lawful for the State Government to consider any
objections that might have been received within the period or
amended period as specified in such Proclamation, Notification,
Order or Instrument, as the case may be, from the date of G
publication of such Proclamation, Notification, Order or Instrument
in the Official Gazette, and thereafter after considering the same,
issue the final Notification, Order or Instrument, in respect of the
same, as the State Government may deem fit; and
(iv) no such final Notification. Order or Instrument issued by the H
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State Government after considering any such objection after the
said period, shall be called in question or deemed to be invalid
only on the ground that th~ State Government had issued such
final Notification. Order or I nstrumenr. before the expiry of the
period specified for entertaining any objections in any such
Government Proclamation, Notification. Order or Instrument,
before its amendment as provided by section 2."
The Ordinance is accompanied by a statement, parts 2 and 3 whereof are
relevant and hence are extracted and reproduced hereunder:-
"2. Sub section (2) of section 3 of the Bombay Provincial
Municipal Corporations Act, 1949, empowers the State Government
to specify, by notification in the Official Gazette, any urban area with
a pdpu.fation of not less than three lakhs as a larger urban area which
shall be a city and shall have a Municipal Corporation under the said
Act. The provincial census figures for the census held in the year
2001 shows that the population of the Municipal Councils of Mira
Bh"ayandar, Bhivandi Nijainpur, Malegaon, Ahmednagar, Dhule and
Jalgaon is more than three lakhs. Therefore, as provided in sub-section
(2) of section 3 of the said ·Act, the Gov·ernment has decided to
constitute a MuniCipal Corporation· for each such area and therefore
has issued six different prelirninary notifications on the 16th October,
2001 inviting objections within a period of two months from the
publication of"the proposal to constitute Municipal° Corporations for
th0se areas. Th¢ said period would therefore, expire on the 15th
Deceri1ber, 200 I .
. ,·
3. The general"elections to four out of the said Municipal Councils,
that is .to say to- the Municipal Councils of Bhivandi-Nijampur,
Malegaon, Ahmedriagar and Jalgaon, are scheduled to be held in the
fir'st- w~ek of De~e1n"ber, 200 I. If the proposal of t~e Government to
establish Municipal CorP._orations in those four areas is finalized in
the rheanwhile,the expenditure for holding the elections of those four
Municipal Councils would be an avoidable expenditure of public
money, and .avoidable wastage of time and energy of Government
machinery, The Government, therefore, considers it expedient to
provide that· the period within which objections to the issuance of a
notification shall be ent~rtained should be curtailed from a period of
two inonths to such period being not.less than thirty days, by suitably
· amending the relevant provision of the Municipal Councils Act. Such
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STATE, .. JALGAON MUNICIPAL COUNCIL fR.C. LAHOTI. J.]
1129
amendment is aimed at enabling the Government not to be compelled A
to hold the ensuring elections of the said Municipal Councils and
thereb: stop the wasteful expenditure on holding of two elections that
is to say of the said Municipal Councils, and then for Corporations."
It is not disputed that the two proclamations dated 15th November,
200 I extracted and reproduced hereinabove were published in the Government B
Gazette dated 15th November, 200 I. However, in the.. newspaper the
proclamations were published only on 19th November, 200 I. The time
prescribed for preferring the objections came to an end on 21st November,
2001.
The Ordinance was repealed and replaced by an Act in due course of c
time. The provisions of the Act are the same as that of the Ordinance.
As soon as the proclamations setting out the intention of the State
Government to constitute a Municipal Corporation replacing the Municipal
Council for the city of Jalgaon came to the notice of Jalgaon Municipal D
Council, a meeting of the Municipal Council was convened to be held on
21.10.2001. It appears that several corporators had invited the attention of the
Municipal Council to consider the issue so as to place on record suggestions
and objections of the Municipal Council as regards the proposed change and
forward the resolution for the consideration of the State Government.
Resolution No. 429A dated 21.!0.2001, unanimously passed by majority of E
the Councillors voting for the resolution, is a long one which need not be
reproduced in extenso. Suffice it to state that the resolution displays conscious
consideration of the Municipal Council of the factors like: (i) population, (ii)
area and development of the city, (iii) financial aspect, (iv) administrative
aspect, (v) Government schemes, (vi) educational requirements of population, F
and (vii) development works in progress, etc.