Somany Pilkington's Ltd. vs State of Haryana

Jawahar Lal Gupta, J.—The Petitioners in these three petitions viz. CWP No. 11521, 11522 and 11523 of 1988 challenge the notification dated September 29, 1988 issued by the State of Haryana under Section 4(1) of the Haryana Municipal Act, 1973. By this notification, the Govt. declared its intention to include within the Municipality of Bahadurgarh certain areas, as specified in the schedule appended thereto. Inhabitants of the area were called upon to submit their objections to the proposed inclusion. The petitioner have submitted their objections. Before these objections could be considered and a final decision with regard to the issue of a notification as contemplated under Section 4(3) of the Act could be taken, the petitioners have approached this Court through the present petitions. Arguments were addressed in CWP No. 11521 of 1988. Few facts as stated in this petition may be noticed.

The petitioner is a registered company. It is engaged in the manufacture of glazed tiles. Its unit is located in village Kassar. Part of the land on which the factory of the petitioner is located was acquired by the Govt. of Haryana and allotted to the petitioner in the year 1969. Some land was purchased by the petitioner from the landowners. The petitioner avers that it had set up the unit in the backward area of Kassar only on the consideration that it would not have to pay municipal taxes. Besides the petitioner, a number of other industrial units like Messrs. Parkash Tubes (Petitioner in CWP No. 11522 of 1988) and Messrs Parley Biscuits have come up in the area. These units, according to petitioner, have developed colonies for providing residential accommodation and other amenities to their staff.

On June 12, 1984, the Govt. issued a notification under Section 4 of the Haryana Municipal Act, 1973 (hereinafter referred to as the Act). This notification was challenged in CWP No. 3626 of 1984. The notification was quashed vide order dated September 17, 1984. After a period of about four years, the respondents issued the impugned notification. Objections were invited. Petitioner has submitted detailed objections through its counsel vide letter dated November 11, 1988, and a copy thereof has been appended as Annexure P7 to the petition.

The matter was pending with the Govt. inspite of that, the validity of this notification has been challenged on various grounds.

A written statement has been filed on behalf of the respondents. It has been averred that the factory owners have not developed any colony in the village itself. It has been further averred that the impugned notification has been issued "for the planned development of the area, to prevent the creation of slums and to prove better civic amenities. The said notification has been duly published in the Haryana Govt. gazette." It is further averred that "due publicity was given about the intention of the Govt. to include the areas specified in the schedule within the Municipal Committee, Bahadurgarh." The respondents also aver that "the notification in question was issued in both Hindi and English Govt. gazettes and the mode of publicity was also decided. Wide publicity was given by means of loud speakers and Munadi in the town especially in the areas where the Municipal limit was to be extended and as such the notification cannot be said to be bad. Besides these proceedings, the notification was further published by pasting notices on the walls of various industries and factories and other conspicuous places in the areas which were to be brought within Municipal limits. It is further submitted that due to the wide publicity, a number of objections were received including the one from the petitioner, from the Gram Panchayat, Kassar, Messrs. Parkash Tubes Ltd. and various other persons. " On these premises, the notification is sought to be sustained.

Mr. P.S. Patwalia, learned counsel for the petitioner assailed the validity of the notification primarily on the ground that it is violative of section 4(1) as the alternative mode of publication was not decided by the prescribed authority viz. the Govt. He submits that the provision is mandatory and that notwithstanding the fact that the petitioner had filed objections, the notification is vitiated. Initially the learned counsel had also raised various other grounds as well. However, in view of the fact that no final, notification under section 4(3) had been issued, the learned counsel confined the challenge on the ground noticed above. He rightly stated that those grounds shall be raised if a notification under Section 4(3) was issued. The claim made on behalf of the petitioner has been controverted by the learned counsel for the respondents.

In order to resolve the controversy, it is apt to notice Section 4. It provides asunder :

"Section 4. Notification of intention to alter limits of Municipality 1. The State Government may, by notification, and in such other manner as it may determine, declare its intention to include within a municipality and local area in the vicinity of the same and defined in the notification.

Any inhabitant of a municipality or local area in respect of which a notification has been published under subsection (1), may, should be object to the alteration proposed, submit his objection in writing, through the Deputy Commissioner to the State Government within six weeks from the publication of the notification and the State Government shall take such objection into consideration.

When six weeks from the publication of the notification have expired, and the State Government has considered the objection, if any which have been submitted under sub section ?

The State Government may by notification, include the local area in the municipality.

When any local area has been included in a municipality under subsection (3), this Act, and except as the State Government may by notification, direct otherwise, all notifications, rules bye laws, orders, directions and powers issued, mad or conferred under this Act and inforce throughout whole of the municipality at the time, shall apply to such area."

A perusal of the above provision shows that the State Govt. can declare its intention to include any local area within a municipality "by notification, and in such other manner as it may determine " (emphasis supplied) since the basic plea raised by the learned counsel was that the other manner had not been determined by the Govt. we sent for the original record. Mr. Jagdev Sharma, learned Additional Advocate General, Haryana, produced the file before us. From a perusal of the file we find that there is an endorsement dated September 30, 1988 in the impugned notification. It reads as under

"A copy is forwarded to :

Deputy Commissioner, Rohtak.

Administrator, Municipal Committee, Bahadurgarh, Distt. Rohtak.

Director, Local Bodies, Haryana Chandigarh, for information and necessary action. The Govt. under subsection (1) of Section 4 of the Haryana Municipal Act, 1973 further directs that the Administrator Municipality, Bahadurgarh to paste copies of this notification at various conspicuous places in the locality now proposed to be included in the municipal limits and a proclamation to this effect may also be got done by beat of drums in the said locality for the information of all concerned. A report to this effect may also be got entered in the Roznamcha Patwari of the concerned Area. A report of having done so be sent to the Govt. at an early date.

Sd/ Joint Secretary (L.G.)

for Commissioner & Secretary to Govt. Haryana, Local Govt. Deptt."

From a perusal of the above it is apparent that the Govt. itself had directed the Administrator. Municipal Committee, Bahadurgarh, to paste copies of the notification at various conspicuous places in the area proposed to be included in the Municipal Limits and to make a proclamation by beat of drum in the locality for the information of all concerned. It is thus apparent that besides publication" of the notification in the official Gazette, a copy of which has also been produced before us, the Govt. itself had determined the alternative mode of publication. Definite directions had been given to the Administrator of the Municipality, Bahadurgarh to ensure that the intention of the Govt. was made known to all concerned. These directions, as is apparent from the written statement, were duly complied with. Copies of the notification were pasted at various places. Announcement was made by beat of drum on October 14, 1988. We are satisfied that the `other manner'' had been determined by the Govt. and that the contention raised by Mr. Patwalia has no factual basis. Therefore, it must be rejected. We do so.

We consider it apt to say a word about the dominant purpose behind publication. Extension of municipal limits results in application of the Act. Rules and Byelaws etc. It also entails imposition of'' taxes. The legislative policy, as it appears from the provision is to enable, to inhabitants of the area to submit objections to the alteration proposed by the Govt. Publication of the notification in the official gazette in the very nature of things may not be an adequate notice to all concerned. Everybody may not have access to a Gazette Notification. Majority of people are not even literate. They may not be able read it. Consequently, the legislature has considered it appropriate to provide that the Govt. may make its intention known to the inhabitants in such other manner as it may determine," The purpose is only to ensure that the inhabitants may be able to submit their objections in writing. Once this purpose is shown to have been achieved and the inhabitant concerned has actually submitted objections in writing, there can be no legitimate grievance which may be remediable by resort to proceedings under Article 226 of the Constitution. Such an inhabitant cannot be said to have been prejudiced in any manner whatsoever.

This is precisely the situation in the present case. After the publication the petitioner had submitted detailed objections in writing. It suffered no prejudice. It could have no grievance. The dominant purpose of the legislation as intended by the legislature was duly served. The complaint made by the petitioner is wholly lacking in merit.

Mr. Patwalia relies on Ram Singh and others v. State of Haryana, AIR 1978 P&H 290 and Gram Sabha Village Rania and others v. State of Punjab and others, AIR 1982 P&H 89 : 1986 R.R.R. 435 to contend that the provision is mandatory. Assuming it is so we are clearly of the view that in a case like the present one where the petitioner has submitted objections and no prejudice is shown to have been caused it would be sound exercise of discretion if the writ court refused to interfere. Consequently, even if it was established that the provision had not been complied with in its literality, we could refused to interfere.

Position is identical in the other two cases as well. We thus find no merit in these three petitions. We are unable to sustain the challenge to the impugned notification. It is consequently rejected.

It would now be for the Govt. to consider these objections in accordance with law and to decide as to whether or not the notification under Section 4(3) of the Act has to be issued. In view of the fact that no final decision, whatsoever, has been taken by the appropriate authority as yet, it is not necessary for us to go into the various other objection is raised by the petitioner. So far as these petitions are concerned, we are clearly of the view that the challenge on the basis of violation of section 4(1) of the Act as noticed above, is wholly lacking in merit. We consequently dismiss these petitions. The respondents will be entitled to their costs which are assessed at Rs. 1000/ in each case.