Raghunath Das and Others vs State of Orissa and Others

R.N. Misra, J.—Both these applications are by some residents of certain villages within the Chatrapur Police Station of the district of Ganjam challenging the Notification of the State Government dated 31st of March, 1977, constituting with effect from 1st of April, 1977, the areas indicated in the Schedule to the Notification to be a notified area in terms of Section 417-A(1) of the Orissa Municipal Act (hereinafter referred to as the ''Act'').

Several allegations have been made in the two writ applications, but the ultimate relief claimed is the same. For convenience, we may now enumerate the grounds on which the Notifications has been challenged:

(1) Referring to the Schedule in the Notification u/s 417-A(1) of the Act, it is maintained that eleven villages are covered and according to the Census of 1971, the adult population of these villages works out at 10,960. Of them, as per the particulars available in the Census Report, 894 persons are employed in non-agricultural pursuits and the rest are agriculturists. Of the 2,170 houses in these villages 510 have tiled roofs and the rest are thatched huts. Ten of the villages are scattered around Ganjam village at a distance of half a kilometre or a kilometre on the average and these are separated by paddy fields intervening. The National Highway touches three of these villages and the remaining villages are connected by village paths. Requirement of Section 4 of the Act is thus not satisfied.

(2) The Notification u/s 417-A(1-a) of the Act has not been validly published in any newspaper as required under the law and the same being a condition precedent to the constitution of notified area, the final notification is not valid.

(3) Government had declared their intention to constitute the notified area in question consisting of two villages only, namely Ganjam and Damodarpur and it is, therefore, not open to them to add the remaining nine villages at the stage of constituting the notified area. Again, in the Notification of Government''s intention to constitute a notified area, the purposes had not been indicated and the Notification suffered from vagueness, prejudicing the local residents from raising appropriate objection. The Collector of the District was not satisfied that the villages should be constituted into a notified area and had, therefore, reported against the proposal. Action ha, however, been taken on account of considerations not germane to the Statute.

Two counter affidavits have been filed - one by the opposite parties 1 to 6 and the other following a rejoinder of the Petitioners by opposite parties 3, 4, 6, 9, 12 to 15 of 0.J.C No. 241 of 1977. The Under Secretary to Government in the Urban Development Department in the first of these two counters have claimed that Section 4 of the Act has no application and it is not open to the Petitioners to advance any submission founded upon Section 4 of the Act. It has been maintained that a notification as required u/s 417-A(1-A) had been duly published. Objections were entertained and after disposing of "the same, Government have made the final Notification u/s 417-A(1) of the Act. It has been maintained that it has never been the intention of the State Government to add the remaining nine villages within the area and thus there has been no difference between the preliminary and the final Notifications. In the other counter affidavit, several facts asserted in the rejoinder have been refuted.

The fact that the intention of the State Government had been notified in the daily Samaj is no more disputed in view of the production of a copy of the daily Samaj dated 10-8-1972, which is to the following effect:

In pursuance of Sub-section (La) of Section 417-A of the Orissa Municipal Act, 1950 (Orissa Act 23 of 1950) the State Government do hereby announce their intention to issue a notification under Sub-section (1) of the said section in respect of the areas in the district of Ganjam, specified in the schedule appended hereto. Any person residing within the said area may submit his/her objections, if any, in writing the District Magistrate, Ganjam, within one month from the date of publication of this proclamation in the Orissa Gazette.

Schedule

Name of vill.

Police station with Thana No.

Name of the G.P.

3.

Ganjam Chatrapur Thana No. 17 Ganjam

Damodarpur Chatrapur Thana No. 17 ainchapur." It is, however, submitted that the notification should not have been in English and should not have been left so vague as it has been. In view of the fact that the Notification has been in English, the residents of the area on whom a statutory right of raising objection has been conferred have been deprived of raising any objection and of voicing their opinion. Simultaneously it is contended that it has not been specifically indicated that Government evinced the intention of constituting a notified area and the, purposes of the Act for which administrative provision was intended in constituting the notified area had also not been indicated.

A Bench of this Court in the case of Gopabandhu Das v. State of Orissa 1971 (1) C.W.R. 537, examining the scope of Sub-section (1-a) of Section 417-A of the Act indicated:

It is well known that the incident of taxation of the inhabitants of a Grama Panchayat area is very little and that once such area is constituted into a notified area, the inhabitants have to pay several kinds of taxes. That is the reason why provision was made in Clause (1-a) of Section 417-A of the Act for the persons affected to submit objections to the District:Magistrate whenever it is proposed to constitute an area into a notified area.... It can not, therefore, be said that the requirement of the intention of the Government to be published in a newspaper circulating in the area is a mere idle formality and non-compliance with it does not materially affect the rights of the inhabitants. The use of the expression at least in Clause (1-a) is significant and equally significant is the fact that the Sub-section provides not merely for publication in a news paper but insists on the publication to be made in a news paper circulating In the area....

The Division Bench of this Court placed reliance on the observation of the Supreme Court In the case of Raja Bahadur Giriwar Prasad Narain Singh Vs. Dukhu Lal Das and Others, . where it had been stated:

The notification had a far-reaching effect. It deprived the owner of his vested rights as a proprietor ot the estate and vested those rights in the State Government. This alteration in the rights was to be brought about by notifications issued in respect of individual estates of a proprietor and it appears that it was because of this importance of the notification that the legislature did not consider it sufficient that the notification should be published in the Official Gazettee only. Sub-section (2) of Section 3 of the Act, therefore contained the clause requiring the publication in at least two issues of two news-papers. In this provision, the use of the adjectival clause at least is very significant. By laying down that the publication must be in at least two issues of two news papers, the Legislature clearly indicated the importance that it attached to this publication in the newspapers. A minimum of two issues of two newspapers was mentioned for publication of the notification to emphasise that this requirement was necessary and had to be fulfilled before the notification could have the effect of divesting a proprietor of his rights in the estate and vesting them in the State Government.

Keeping the purpose and the obligatiory requirement of the Notification in view, we indeed find support in the submission of counsel for the Petitioners that the notification in question has not provided an adequate opportunity to the local residents for raising their objections to the Governmental intention. The notification nowhere specifies in clear terms the Governmental intention to constitute a notified area. Learned Additional Government Advocate as also Mr. Das for the Notified Area Council have taken the stand that reference to Sub-section (1) of Section 417-A was sufficient notice. Undoubtedly, the constitution of the notified area had to be made in exercise of that power, but since the legislative purpose in requiring a notification of intention to be published 10 a newspaper having local circulation, we are inclined to agree with the counsel for the Petitioners that the Notification would have been specific and it should have been in a language which the people of the locality understood. It has been asserted by the Petitioners and not denied in the counter affidavits and judicial notice can also be taken of the feature that the local residents of the area were mostly not conversant with English and Oriya being the State language, there was no difficulty in complying with the requirements of the Statute by issuing the notification in Oriya. The other objection to this Notification is that it has not indicated the purposes of the Act for which administrative provision had to be made for which the notified area had to be constituted. Sub-section (1) of Section 417-A provides:

The State Government may, by notification, declare that it is necessary to make administrative provision for all or any of the purposes of this Act in any area, specified in the notification other than a municipality.

The provisions of the Act ipso facto apply to a municipality. Chapter XXX-A of the Act making provision for ''Notified Areas'' authorises the State Government to constitute notified areas and extend the provisions of the Act to such notified area. In the final notification, Government have indicated that administrative provision for all purposes of the Act had to be made for the impugned notified area. There is force in the contention of counsel for the Petitioners that if Government evinced the intention of making administrative provision for all purposes of the Act in the notified area to be constituted, it was obligatory on their part to give notice of that intention to the residents. It is not disputed by the counsel for the opposite parties that the scheme of the Statute confers a right of being heard on the local residents before a notified area is constituted. Since a right is contemplated unless an adequate opportunity to raise objection is given, the statutory purpose would be illusory. We put it to learned Additional Government Advocate during hearing of the case as to what objection could possibly be raised when the notification of intention would be expressed in terms as in the present case. From the fact that no satisfactory answer was forthcoming, we find support for the embarrassment which Petitioners must have faced with when raising their objections against the Governmental intention. The Act makes provision for several purposes. It is not disputed at the Bat that Government have the discretion to extend the Statute in whole or in part to a notified area. Therefore, at the preliminary stage, before constitution of the notified area, it is for the Government to clearly declare as to what administrative provision has to be made for all or any of the specific purposes of the Act. The Notification in question under Sub-section (1-a) of Section 417-A of the Act, therefore, was defective and deprived the Petitioners of an adequate opportunity of raising objections.

There is one more feature pertinent to this aspect. Simultaneously with the constitution of the notified area. Government in exercise of their powers u/s 417-B of the Act have extended the application of the several provisions of the Act to the impugned notified area and Section 4 of the Act is one of such provisions. Petitioners have contended that Section 4 having been extended to the notified area, its constitution is open to attack if the conditions indicated in Section 4 were not satisfied. Counsel for the opposite parties on the other hand have taken the stand that since Section 4 was being extended to an existing notified area, in exercise of powers u/s 417-B of the Act, constitution of the notified area was not open to scrutiny with reference to the provisions of Section 4 of the Act. We are inclined to agree with the counsel for the opposite parties.

But all this cannot dispose of the point raised. It is conceded that the residents have a right of objection. No guideline has been indicated as to what exactly would be the grounds of objection. Section 4 makes a statutory provision for certain, conditions to be satisfied before an area can be constituted into a municipality. Executive action IS in tended to be regulated by Statute in providing certain pre-conditions. There is no dispute that all the areas within the State are covered either by the Grama Panchayats or Municipalities and/or Notified Area Councils. For non-urban areas, Grama Pancbayats are in existence; for urban and semi-urban areas,. Municipalities and Notified Area Councils exist. The residents within a Municipality bear a larger incidence of taxation and the living process is more regulated. Depending upon the extension ot the provisions of the Act to Notified Areas, the rigour of control as also taxation become operative in such areas. In Grama Panchayats there is less of regulation and less of taxation too. In these premises there can be no stope to doubt that there must be a guideline available for bringing, in the change from rural into semi-urban or urban status. The conditions indicated in Section 4 are of this type. In these circumstances, there can be no scope to dispute the Petitioners submission that the objection against the intention has got to be checked up with reference to objections similar in Section 4, though in the absence of strict application of Section 4, the mandatory requirements cannot be taken into consideration. In fact, in the counter affidavit, Government have come forward with some such guideline. It cannot, therefore, be seriously contended that no guideline has to be kept in view while taking action u/s 417-A(l) of the Act. In view of the stand taken by the opposite parties, we cannot accept the submission of counsel on their behalf that the objections raised by the residents had been considered in the light ot what we have said above. We are inclined to agree with Petitioners'' submission that the proper standard for consideration has not been applied to the objections. As we have already said, Petitioners have been deprived of the opportunity to raise appropriate objections. In these premises; the action taken under Sub-section (1) of Section 417-A of the Act seems to have been unjustified.

Once we have reached this conclusion, we think it unnecessary to examine the several other contentions advanced before us. We would accordingly vacate the Notification constituting the Notified Area of Ganjam by quashing it. It shall, however, be open to the State Government to take fresh action in accordance with law if they so like.

Both the writ applications are allowed. We, however, make no order, as to costs.

P.K. Mohanti, J.

I agree.

Applications allowed.