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Judgment
G.S. Kulkarni, J
This batch of public interest petitions raise a common challenge, which is to the notification dated 24 June 2020 issued by the State Government,
exercising powers under clause (a) of Section 3(3) of the Maharashtra Municipal Corporation Act, 1949 (for short “1949 Actâ€), whereby the
State Government decided to alter the limits of the larger urban area constituting the Municipal Corporation of the City of Kalyan-Dombivili (for short
“the KDMCâ€), to exclude therefrom 18 villages as specified in ‘Schedule A’ of the said notification so as to have revised boundaries of the
KDMC, as specified in ‘Schedule B’ of the said notification. There is also a challenge to a consequent notification of an even date, which is in
the nature of a proclamation, issued under Section 3(3) of the Maharashtra Municipal Council, Nagar Panchayat and Industrial Townships Act, 1965
(for short “Municipal Council Actâ€) by which the State Government has announced its intention to issue a notification in exercise of the powers
under sub-Sections 2, 2A and 3 of Section 3 of the Municipal Council Act, with a view to specify the smaller urban area as comprised in these
excluded villages to form a new Municipal Council by the name of “Kalyan Suburban Municipal Councilâ€. Such proclamation contains a draft
notification inviting objections to be submitted to the Collector, Thane within a period of 30 days from the date of publication of the said proclamation in
the Maharashtra Government Gazette being part of the procedure to form the said new Municipal Council.
The factual conspectus leading to the assail, are required to be noted-
On 1 October 1983, the KDMC-Kalyan Dombivli Municipal Corporation was constituted by issuance of a notification under Section 5 of the 1949
Act. In constituting the KDMC, area of 27 villages, which includes 18 villages which are the subject matter of exclusion as impugned in the present
petitions, formed part of the Municipal Corporation. In 2002, which was after a period of 19 years, the State Government by a notification dated 12
July 2002 excluded these 27 villages from the Municipal Corporation. Quite peculiarly, again on 11 March 2015, the State Government proposed to
include these 27 villages in the Municipal Corporation. A final notification to that effect, dated 14 May 2015 was issued by the State Government to
include these 27 villages within the limits of the Municipal Corporation with effect from 1 June 2015.
Things did not rest at this, for immediately almost 4 months of such inclusion of these 27 villages within the KDMC, the State Government again on
07 September 2015, issued a draft notification “for exclusion†of these 27 villages from the Municipal Corporation. A hearing on the draft
notification was fixed after about five years, that is, on 6 March 2020, which has culminated in issuance of a final notification dated 24 June 2020, as
impugned, whereby now out of the proposed exclusion of 27 villages, 18 villages are excluded from the KDMC. These facts are not in dispute.
The petitioners have mounted a challenge to the impugned notification firstly on unreasonableness and irrationality in the decision making process
and secondly on the procedural impropriety by non-adherence to the requirement of the statutory provisions. Some of the grounds of challenge on
unreasonable and arbitrary nature of the decision can be noted which are :- the 18 villages would be deprived of qualitative services of a Municipal
Corporation; the 27 villages formed part of one contiguous municipal area which cannot be separated into two groups; the development plan for the
KDMC was also finalised and the Development Control rules were notified so as to apply to these 18 villages rendering futile such valuable planning
exercise; these villages now being excluded from the Municipal Corporation, there would be a total chaos, resulting in lack of planning, leading to
illegal constructions; there would be legal complications in regard to ongoing major constructions in these 18 villages, for which plans were approved
by the KDMC and further to such permission there would be no regulation and control by such planning authority; these constructions cannot be
deprived of the advantages of larger urban area as available under a municipal corporation; there would be lack of infrastructure facilities like
hospitals, fire stations; the source of revenue as available to the KDMC from these 18 villages would also be deprived; no useful purpose would be
achieved to form a new Municipal Council for these 18 villages and it would infact be highly prejudicial to the interest of the citizens; there would also
be a serious impact on the KDMC in regard to the recovery of taxes; an investment on infrastructure has already been made by the KDMC; there
would be loss on connectivity to the municipal areas, etc. It is hence contended that for these reasons on merits the impugned notification is wholly
arbitrary, unreasonable and illegal.
Apart from the above challenge, the more fundamental challenge to the impugned notification is to the effect, that the impugned notification is in the
teeth of Section 3(3) of the 1949 Act, on the ground that there was “no consultation with the Corporation†(KDMC) before the State Government
could take a decision to exclude the 18 villages by the impugned notification. The petitioners contend that sub-section (3) of Section 3 categorically
provides that the State Government after consultation with the Corporation by notification in the Official Gazette, may alter the limits specified for any
larger urban area, so as to “include therein “or†exclude therefrom†such area as specified in the notification. They contend that in the
absence of such consultation with the Corporation, the impugned notification is per se illegal, since it is in the teeth of such statutory requirement of a
consultation.
An affidavit- in -reply is filed in the first petition by Shri. Shankar Trimbak Jadhav, Deputy Secretary, Urban Development Department, contesting
the petition and justifying the impugned decision of the State Government to exclude these 18 villages. In regard to some of the contents of this
affidavit we would make a reference in the later part of our judgment.
We have heard learned counsel for the parties on the legal issues as noted by us.
On the above premise the questions which would fall for our consideration firstly is, whether there was any prior consultation with the KDMC by
the State Government in taking the impugned decision to issue the impugned notification dated 24 June 2020 excluding 18 villages from the KDMC;
and secondly, in the event a conclusion is reached that there was no consultation within the meaning of sub-section (3) of Section 3 of the 1949 Act,
whether the impugned notification would be rendered illegal.
By virtue of the Constitution (74th Amendment) Act 1992, Part IX-A came to be to inserted in the Constitution, to add Articles 243P to 243ZG with
effect from 01 June, 1993. The object of the Constitution amending Act was to confer upon the local self-Government, complete autonomy on the
basic democratic unit unshackled from official control.
Article 243P of the ‘Dictionary clause’ in relation to part IX-A of the Constitution in clause (d) defines ‘municipal area' to mean the
territorial area of the municipality, as is notified by the Governor. Clause (e) defines ‘municipality’ to mean an institution of self-government
constituted under Article 243-Q.
Article 243-Q provides for ‘Constitution of Municipalities’ which read as under:-
Article 243Q. Constitution of Municipalities- (1)
There shall be constituted in every State,
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part: Provided that a Municipality under this clause may
not be constituted in such urban area or part thereof as the Governor may, having regard to the size of tile 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 notification,
specify to be an industrial township,
(2) In this article, a transitional area, a smaller urban area or a larger urban area means such area 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 he may deem fit, specify by public notification for the purposes of this Part.â€
As the controversy revolves around the provisions of Section 3(3) of the 1949 Act it is essential to reproduce Section 3 which reads thus:-
Section 3. Specification of larger urban areas and constitution of corporations.]
“[(1)The Corporation for every City constituted under this Act existing on the date of coming into force of the Maharashtra Municipal Corporations
and Municipal Councils (Amendment) Act, 1994, specified as a larger urban area in the notification issued in respect thereof under clause (1) of
article 243-Q of the Constitution of India, shall be deemed to be a duly constituted Municipal Corporation for the larger urban area so specified
forming a City, known by the name “The Municipal Corporation of the City of ...............â€.
3[ (1A)The Corporation of the City of Nagpur incorporated under the City of Nagpur Corporation Act, 1948 for the larger urban area specified in the
notification issued in this respect under clause (2) of article 243-Q of the Constitution of India shall, on and from the date of coming into force of the
Bombay Provincial Municipal Corporations (Amendment)and the City of Nagpur Corporation (Repeal) Act, 2011, be deemed to have been constituted
under this Act and accordingly the provisions of this Act shall apply to the area of the City of Nagpur.]
(2)Save as provided in sub-section (1), the State Government may,having regard to the factors mentioned in clause (1) of article 243-Q of the
Constitution of India, specify by notification in the Official Gazette, any urban area with a population of not less than three lakhs as a larger urban
area.
(2A)Every larger urban area so specified by the State Government under sub-section (2), shall form a City and there shall be a Municipal Corporation
for such larger urban area known by the name of the‘‘ Municipal Corporation of the City of .............â€.]
Consequent to the amendment to the Constitution by incorporation of the part IXA. The State Legislature by Maharashtra Act 41 of 1994 amended
Section 3 of the 1949 Act. So as to give effect to the Article 243-Q of the Constitution, Section 3 reads as under:
(3)[(a) Subject to the provision of sub-section (2), the State Government] may also from time to time after consultation with the
Corporation by notification in the Official Gazette alter the limits specified. for any city under sub-section (1) or sub-section (2) so as to
include therein or to exclude therefrom, such area as is specified in the notification.
3(b) Where any area is included within the limits of the larger urban area under clause (a), any appointments, notifications, notices, taxes,orders,
schemes, licences, permissions, rules, by-laws or forms made,issued, imposed or granted under this Act or any other law, which are for the time being
in force in the larger urban area shall,notwithstanding anything contained in any other law for the time beingin force but save as otherwise provided in
section 129A or any other provision of this Act, apply to and be in force in the additional area also from the date that area is included in the larger
urban area.
(4)The power to issue a notification under this section shall be subject to the conditions of previous publication.6[Provided that, where the population of
any urban area, in respect of which a Council has been constituted under the provisions of the Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships Act, 1965, as per the latest census figures has exceeded three lakhs, the State Government may, for the purpose of
constituting a Corporation under this Act for such urban area, with the same boundaries,dispense with the condition of previous publication of the
notification under this section.†(emphasis added)
From a fair reading of Section 3, the statutory purport of the said provision is to the effect that it provides for specification of larger urban areas
and constitution of Municipal Corporations for such urban areas. In so far as the issue involved in the present proceeding is concerned sub-section (3)
of Section 3 is the relevant provision, which empowers the State Government to alter the limits specified for such larger urban area. It provides that
subject to the provisions of sub-section (2), the State Government, may also from time to time “after consultation with the Corporation by
notification in the Official Gazette, alter the limits specified for any larger urban area†as fixed under sub-section (1) or sub-section (2), so as to
“include thereinâ€, or to “exclude therefromâ€, such area as specified in the notification.
It is in exercise of such power as conferred under sub-section (3) of Section 3, the State Government initiated a proposal on 7 September 2015 by
issuance of a draft notification to exclude 27 villages from the KDMC. Objections were invited to such alteration of the municipal areas. A hearing on
the draft notification was fixed on 6 March 2020 before the Divisional Commissioner and the impugned final notification to exclude 18 villages out of
27 villages was issued on 24 June 2020.
The petitioners have contended that sub-section (3) of Section 3 necessitated a 'consultation with the Corporation', before issuance of a final
notification, to exclude the area of 18 villages from the larger urban area namely the KDMC. It is submitted that before issuing the impugned
notification, there was no consultation with the Municipal Corporation. In this regard the writ petitioner Shri. Sandeep Patil has raised specific grounds
being grounds (n) and (v) in petition. In ground (n) it is contended that the State Government has failed to have proper consultation with the
Corporation and more particularly with the Corporators of the excluded area before taking the impugned decision. Ground (v) to some extent is
differently worded to contend that there was no effective consultation by the State Government with the Corporation or the elected corporators in
taking decision to delete the eighteen areas from the limits of KDMC.
In asserting that there was no consultation as prescribed by law, it is pointed out on behalf of the petitioners that the compliance of the statutory
requirement of consultation was quite peculiarly understood by the concerned authorities to mean that an opinion of the Municipal Commissioner
would be a sufficient compliance. In this context the petitioners refer to a communication dated 12 March 2020 of the Municipal Commissioner of the
KDMC addressed to the Divisional Commissioner, Konkan Division. This letter of the Municipal Commissioner is in the nature of “his†opinion /
recommendations. Being crucial it needs to be extracted, which reads thus:-
“
Dr. Vijay Suryavanshi I.A.S. Commissioner.
Kalyan Dombivali Municipal Corporation, O.W. No. KDMC/Commissioner/PA/394 Office of the Municipal Commissioner, Shankarrao Chowk,
Kalyan (W) â€" 421301. District â€" Thane. Office â€" 0251 â€" 2204065 e-mail â€" (illegible)
Date â€" 12/03/2020.
To,
The Divisional Commissioner,
Office of the Divisional Commissioner, Konkan Division, Konkan Bhavan, CBD Belapur, Navi Mumbai- 400 614.
Respected Sir,
Hearing on the objection on the Draft Notification dated 07/09/2015 regarding excluding 27 villages from Kalyan Dombivali Municipal Corporation, has
been fixed on the dates 11th March, 2020 and 12th March, 2020 and the opinion in respect thereof is as under :-
Considering the geographical continuity, urbanisation done, development schemes, developed townships, area included in smart city,
area with the Industrial development Corporation etc. from out of the proposed area, from planning point of view, it is requested to
positively consider to retain the area of the villages viz. Azde, Sagaon, Nandivali Tarfe Panchanand, Bhopar, Gharivali, Sandap,
Usarghar, Katai etc. located on the western side of the Shil-Kalyan Road which are adjoining to the (limits of the) Municipal
Corporation, in the original Municipality.
(Signature illegible)
(Dr. Vijay Suryavanshi)
I.A.S. Commissioner, Kalyan Dombivali Municipal Corporation, Kalyan.
In the reply affidavit as filed on behalf of the State Government by Shri. Shankar Trimbak Jadhav, Deputy Secretary, Urban Development
Department, in paragraph 9, the contention of the writ petitioner Shri. Sandip Pandurang Patil in regard to the lack of consultation has been dealt in the
following terms:-
“9. Both the Sections provide for certain procedural safeguards, which the State Government are following. I say that as far as final Notification
dated 24.06.2020 is concerned, the State Government has complied with the formalities of preliminary notification, inviting suggestions and objections,
giving hearing, submitting report by responsible officer and decision at cabinet level. The Divisional Commissioner, Konkan Division had submitted
report dated 13.03.2020 to the Principal Secretary of Urban Development Department. The Kalyan Dombivali Corporation was also consulted before
taking the said decision. Copy of the said report (without annexure) is attached herewith and marked as Exhibit-1. I say that the report shows that the
concerned officer has followed necessary procedure while making recommendations. I say that the final Notification was also published in Official
Gazette. I say that as such the State Government has followed due process of law while taking decision of retaining the said 9 villages in Kalyan
Dombivali Municipal Corporation.†(emphasis supplied)
Exhibit 1, as annexed to the reply affidavit is the report dated 13 March 2020 of the Divisional Commissioner, Konkan Division made to the
Principal Secretary, Urban Development Department. If these recommendations are read to ascertain the nature of such consultation, it is seen that in
the last paragraph of the report the Divisional Commissioner has in verbatim referred to the opinion of the Commissioner- KDMC, as contained in his
communication dated 12 March 2020 (supra), which he considers as a consultation with the Municipal Corporation. Except for such reference in the
report as made to the State Government, there is not a whisper of any other consultation with the Corporation.
The case of the petitioner is quite specific on the issue of consultation, namely that sub-section (3) of section 3 mandates a consultation by the
State Government only with the Corporation. It is argued on behalf of the petitioners that an opinion/recommendation of the Commissioner as
contained in his letter dated 12 March 2020 addressed to the Divisional Commissioner, Konkan Division, would by no stretch of imagination, fulfill the
requirement of consultation with the Corporation, within the meaning of sub-section (3) of Section 3 of the 1949 Act. It is submitted that the
consultation is also required to be real and meaningful. In support of this contention, reliance is placed on the decision of the Supreme Court in State of
Maharashtra and Others v/s. Jalgaon Municipal Council and Others1 and Deep Narayan Chavan & Ors. Vs. State Of Maharashtra & Ors.2.
Per contra Mr.Samant, learned AGP has opposed these petitions. Mr.Samant referring to the reply affidavit would contend that the State
Government has followed the requisite procedure under the provisions of Section 3 in issuance of the impugned notification. He submits that even the
test of appropriate consultation stands satisfied, hence, the petitioners cannot have any grievance in this regard. He submits that the petitions deserve
to be dismissed.
On a plain reading of sub-section (3) of Section 3 of the 1949 Act, it is clear that when the State Government intends to either include or exclude
any area in relation to the larger urban area relevant to the area of a Municipal Corporation, following would be the essential requirements stipulated
by the provision:-
(i) That an action under sub-section (3) is subject to sub-section (2); [sub-section (2) providing that save as to what is provided in sub-section (1) and
having regard to the factors mentioned in clause (2) of Article 243-Q of the Constitution, specify by a notification in the official gazette any “urban
area†with a population of not less than three lakhs to be a larger urban area].
(ii) The State Government may also from time to time “after consultation with the Corporation†would alter the limits by including therein or
excluding therefrom such areas by issuance of notification in the official gazette.
Thus sub-section (3) in no uncertain terms ordains that a “Consultation with the Corporation†is mandatory and an essential feature of the
decision making process, by which an area can either be excluded or included within or from the limits of the larger urban area.
The words ‘Consultation with the Corporation’ would be required to be understood in the context the word “Corporation†would derive its
meaning, as defined under the 1949 Act. Section 2(10) defines “Corporation†as under:-
Section 2(10): ""Corporation†means the Municipal Corporation constituted or deemed to have been constituted for a larger urban
area known as a City.â€
Section 5 of the Act provides for the “Constitution of Corporationâ€. Sub-section (1) of section 5 provides that every Corporation shall be a
body corporate, have perpetual succession and a common seal and by such name may sue and be sued. Sub-section (2) of Section 5 provides that
each Corporation shall consist of such number of councilors, elected directly at ward elections, as is specified in the table under the provisions.
On a cumulative reading of the provisions of section 2(10) read with Section 5 of the 1949 Act, it is implicit that when sub-section (3) of section 3
uses the word “consultation with the Corporationâ€, it can only be consultation with such ‘Corporation’ constituted under Section 5, namely a
body corporate. It certainly cannot be read to mean consultation with the Commissioner. The Municipal Commissioner cannot be regarded as a
‘Corporation’, as under the legislative scheme of the 1949 Act, Commissioner is a distinct authority defined under section 2(9), which reads as
under:-
“2(9) “the Commissioner†means the Municipal Commissioner for the City appointed under section 38 and includes an acting Commissioner
appointed under section 39.â€
It is crystal clear that the Corporation and the Commissioner are distinct from each other and certainly they are not synonymous. These two
entities being not analogous is also discernible from a perusal of Chapter VI of the 1949 Act, which provides for powers of the Municipal Corporation
Authorities and officers of the Corporation under two headings firstly “Obligatory and discretionary duties of the Corporation†and secondly
“Respective functions of the several Municipal Authoritiesâ€.
In the present case, when the State Government set into motion the procedure to exclude 27 villages from the KDMC limits by issuance of the
draft notification on 7 September, 2015, the Municipal Commissioner in responding to the draft notification by his letter dated 12 March 2020 purported
to make his recommendations. When he did this he either failed to appreciate the true import of the requirement of sub-section (3) of section 3 namely
“consultation with the Corporation†being not to mean “consultation with the Commissionerâ€, or chose to close his eyes. Significantly, such
procedure was adopted when the consequence of non-consultation with the Corporation was serious. Such “consultation†ought to have been only
with the Corporation in the true sense of the term as understood by the 1949 Act.
On such erroneous interpretation, oblivity and / or false assumption of authority, the Municipal Commissioner made his recommendations to the
Divisional Commissioner. This was one of the foundational illegalities which had erupted in the impugned process as undertaken by the State
Government under section 3 of the 1949 Act. It is well settled that when the statute prescribes a thing to be done in a particular manner it has to be
done in such manner as prescribed or not at all (re: Commissioner of Police Vs. Gordhandas Bhanji3 and State of Gujarat Vs. Shantilal Mangaldas and
Others4). However, such defect could have been cured before a recommendation was made by the Divisional Commissioner to the State Government
by correcting the illegality, that is by calling for an opinion of the Corporation as per the mandate of sub-section (3) of section 3. The illegality however
again percolated to the next stage at the hands of the Divisional Commissioner again either on a flawed understanding of the concept and meaning of
“consultation†as postulated under the said provision, or for some other reason which cannot be ascertained. The Divisional Commissioner heard
the objections on the draft notification and has also considered the opinion / recommendation of the Municipal Commissioner as made to him by the
Municipal Commissioner by his letter dated 12 March 2020 (supra).
Astonishingly, the Divisional Commissioner hurriedly, that is immediately on the next day of the receipt of the recommendation of the Municipal
Commissioner (dated 12 March 2020), made his report dated 13 March 2020 to the Principal Secretary, Urban Development Department. In his
report, in regard to the consultation with the Corporation the Divisional Commissioner verbatim extracted the opinion of the Municipal Commissioner.
This report also does not specify about any independent consultation with the Corporation. It is on this report (dated 13 March 2020) of the Divisional
Commissioner, the State Government has ultimately acted to issue a final notification dated 24 June 2020 as impugned, to exclude 18 villages from the
KDMC area. Painfully, the basic illegality of lack of consultation with the Corporation also met the same fate of a Nelson’s eye, in the hands of
the State Government in issuing the final notification. We wonder whether such consistent oblivity to the mandatory requirement of consultation can in
the circumstances be regarded as mere carelessness when such important and sensitive decision was taken affecting lakhs of citizens.
When a statutory provision uses the word ‘consultation’, it is required to be rendered meaningful and in the spirit, the legislation would
manifest such word to mean. A useful reference can be made to the meaning of the word ‘consultation’ in Black's Law Dictionary, 8th Edition
which reads as under:
“Consultation, n. 1. The act of asking the advice or opinion of someone (such as a lawyer). 2. A meeting in which parties consult or confer. 3. Int'l
law. The interactive methods by which states seek to prevent or resolve disputes.-consult, vb-consulting, consultative, adj.â€
The Oxford Dictionary (11th Edition Revised) describes Consultation to mean as :-
“Consultation, n. 1. The action or process of formally consulting or discussing. 2. A meeting with an expert or professional in order to seek
adviceâ€.
The New Webster’s Dictionary would describe Consultation to mean:
“The act of consulting; deliberation by two or more person with a view to some decision; a meeting of physicians to consult concerning a
patient’s caseâ€.
It is thus clear that an act of consultation would mean a meeting in which parties consult, confer, exchange their views on an issue so as to form
an opinion and/or to reach a conclusion one way or the other. It would not mean a concurrence but a deliberation aimed at ascertaining the opinion as
what would be meant by consultation.
In our opinion, the intent and purpose of the legislature providing for ‘consultation with the Corporation’ cannot be rendered an empty
formality, it is required to be meaningful to achieve the desired legislative intent. The intended purpose is to have an effective opinion from the
Municipal Corporation on the proposed action of either inclusion or exclusion of areas in relation to the concerned Municipal Corporation. Consultation
in the present context did not mean any approval or concurrence, but the views of the Corporation were required to be ascertained by the State
Government in reaching its conclusion on the matter one way or the other. It is certainly a prior consultation as the provision uses the words “after
consultation with the Corporationâ€. This requirement of the provision certainly could not have been rendered nugatory by having an opinion of the
“Municipal Commissioner†who is not the Corporation within the meaning of 1949 Act but an officer of the Municipal Corporation.
This apart in the Constitutional Scheme as seen from Part IX-A of the Constitution, the Municipal Corporation would attain an important position in
the democratic set up. It has a vital and independent role to play as a local body. It cannot be overlooked that amendment to Section 3 of the 1949 Act
is brought about, consequent to the amendment to the Constitution, by insertion of Part IX-A. The legislature in providing for ‘Consultation with the
Corporation’, in sub-section (3) of Section 3 certainly recognizes the role of the ‘Corporation’ as reflected in the Constitutional Scheme
contained in Part IX-A of the Constitution. It is also in the spirit of these Constitutional provisions, the role of the Corporation would be required to be
recognized in attributing meaning to the word ‘Consultation with the Corporation’ in sub-section (3) of Section 3. Hence, such consultation
assumes significance for the State Government to arrive at any decision under sub-section (3) of Section 3.
Some decisions which would throw a light on the legal interpretation of the word ‘consultation’ and would aid the discussion are noted
below.
In Union of India Vs. Sankal Chand Himatlal Sheth & Anr.5 it was held that the word 'consult' implies a conference of two or more persons or an
impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. It was held that in
order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical
facts, which can at once constitute both the source and foundation of the final decision.
In Chandramouleshwar Prasad vs. Patna High Court & Ors.6, the word ‘consultation’ as appearing in Article 233 of the Constitution fell for
consideration of the Court in the context of removal of a District Judge by the Government on the recommendation of the High Court. It was held that
consultation or deliberation was not complete or effective before the parties make their respective points of view known to the other and discuss and
examine the relative merits of their views.
Naraindas Indurkhya Vs. The State of Madhya Pradesh & Ors.7 was a case where, the legislation in question provided that before prescribing
text books, the Chairman of the Board was to be consulted. There was no compliance of such condition of consultation. The Court held that the
notification issued by the State Government without consultation with the Chairman of the Board was invalid, being in breach of the mandatory
requirement of the proviso to Section 4(1) of 1973 Act.
In Indian Administrative Service (S.C.S.) Association, U.P. & Ors. vs. Union of India & Ors.8, the word ‘consultation’ used in section 3 of
All India Services Act, 1951 fell for consideration of the Court. The Court taking a review of the law in paragraph 26 interpreted the word
‘consultation’ as under:-
“26(1) Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts
and points involved to evolve a correct or at least satisfactory solution. There should be meeting of minds between the proposer and the persons to be
consulted on the subject of consultation. There must be definite facts which constitute foundation and source for final decision. The object of the
consultation is to render consultation meaningful to serve the intended purpose. Prior consultation in that behalf is mandatory.â€
In Deep Narayan Chavan & Ors. Vs. State of Maharashtra & Ors. (Supra), the Division Bench of this Court was considering the question in
regard to converting the smaller urban area namely the Municipal Council of Ahmednagar and Dhule respectively into an urban area for a Municipal
Corporation to the formed. In this context the effect of Section 3 of the Maharashtra Municipal Corporations Act,1949 (at the relevant time
“Bombay Provincial Municipal Corporations Act,1949â€) fell for consideration, interalia, on the issue of consultation. The Division Bench referring
to the decision of the Supreme Court in State of Maharashtra & Anr. vs. Jalgaon Municipal Council & Ors. (Supra) held that in the facts of the case
consulting the municipal councils was mandatory. It was also held that consultation with the municipal councils should be real, meaningful and
effective. It was observed that the Government would send all the relevant material to the concerned Municipal Councils while completing process of
consultation. The observations in that regard as made in paragraph 35 of the report are required to be noted which reads thus:-
“35. Now remains the question of consultation with the existing Municipal Councils. The importance regarding requirement of consultation with
Municipal Council is no more res integra in view of the pronouncement of the Apex Court on the same question i.e. question No.4 in Jalgaon
Municipal Council case as stated in para 38 of the judgment which reads thus:
‘38. The learned counsel for the appellants submitted that steps for constitution of Municipal Corporation fell within the purview of Section 3 of
BPMC Act which requires the specification of larger urban area, and constitution of Municipal Corporation therein, to be preceded by a notification
subject to the condition of previous publication. Consultation is not one of requirements of Section 3 and therefore the High Court went wrong in
holding that for want of consultation, the process of constitution of Municipal Corporation of the city of Jalgaon was vitiated. With this submission we
do not agree. 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' as defined in within the clause (24) of Section 3 of M.P. Municipal Council Act. Any of the
events provided by clauses (a), (b), (c) and (d) of sub-section (1) of Section 6 must 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 follow the procedure prescribed by
Section 3 mutatis mutandis. Section 6(1)(d) covers within its scope any event, the declaration whereof has the effect of the whole of any area
comprising a municipal area ceasing to be a municipal area. Thus conversion of Jalgaon Municipal Council to 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 Municipal Council is
mandatory.’
The learned Advocate General in his usual fairness has stated before us that the Municipal Councils Ahmednagar and Dhule will be consulted and
then the fresh notification will be issued. We accept the concession made by the learned Advocate General and on this concession we set aside the
final notification and direct the State Government to consult Municipal Council Ahmednagar and Dhule within one month from today. The consultation
with the Municipal Council must be real, meaningful and effective. We hope and trust that the Government of Maharashtra will send all the relevant
material to both the Municipal Councils while completing process of consultation. We have noticed that in both the petitions the Municipal Council are
parties though, the said Municipal Councils are represented by the advocates but no return has been filed and no submissions have been made on their
behalf. Therefore, we direct that on receipt of the material from the State Government for consultation with the Municipal Councils, the Municipal
Councils thereafter, shall submit its opinion within 15 days from the receipt and forward their opinion to the Government and on receipt of the opinion,
the Government shall take appropriate final decision either to convert or not to convert the Ahmednagar and Dhule smaller urban area into larger
urban area. In our view the questions that were raised before the Apex Court in Jalgaon Municipal Council case, covered all the issues raised before
us; and accordingly we reject all the contentions of the learned counsel except question regarding consultation with existing Municipal Councils,
Ahmednagar and Dhule which we have dealt in above paragraphs.†(emphasis supplied)
The decision of the Division Bench of this Court in Jalgaon Municipal Council & Anr. Vs. State of Maharashtra & Ors.9 was challenged by the
State of Maharashtra before the Supreme Court in (State of Maharashtra and Others Versus Jalgaon Municipal Council and Others (supra). The
Court in the context of consultation observed thus:-
“39. …….. 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 the 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.
The process of consultation within the meaning of proviso to Section 6(1) of MR Municipal Councils 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.â€
The above discussion on the legal ‘concept of consultation’ becomes applicable to the requirement of consultation with the Corporation as
per the provisions of sub-section (3) of Section 3 of the 1949 Act and would manifest that it was mandatory for the State Government to have an
effective and meaningful consultation with the Municipal Corporation in taking the impugned decision, to exclude 18 villages from the KDMC area.
The petitioners are thus correct in their contention that there was no consultation with the ‘Corporation’ in the manner known to law. The
obvious consequence would be that the impugned notification would stand vitiated and rendered illegal, null and void. We answer the questions
accordingly. As a sequel, the impugned notification would be required to be quashed and set aside. The consequent notification of the State
Government proposing to form the Kalyan Suburban Municipal Council would also be required to be set aside.
Accordingly, the impugned notification dated 24 June 2020 issued under Section 3(3) of the Maharashtra Municipal Corporation Act, 1949 and the
consequent notification issued under Section 3(3) of the Maharashtra Municipal Council, Nagar Panchayat and Industrial Townships Act, 1965 are
quashed and set aside.
Rule is made absolute in the above terms.
It is clarified that except examining the legal issue on consultation and the lack of it rendering the impugned decision indefensible, we have
refrained from expressing any opinion on the other grounds of challenge as raised by the petitioners.
No costs.
Interim Application would also not survive. It is disposed of.
Later, Mr. Samant, learned AGP, prays for stay of operation of the Order. The prayer is considered and refused.
This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production by fax or e-mail of a digitally signed
copy of this order.