R.C.Lahoti, J. - (1.) LEAVE granted in both the SLPs.
(2.) IN the year 2001, Jalgaon, a city situated in the State of Maharashtra, was an urban area administered by a Municipal Council constituted under the provisions of the Maharashtra Municipal Council Nagar Panchyat and INdustrial Townships Act, 1965 (hereinafter, 'the M.R. Municipal Council Act', for short). The term of the Municipal Council as existing then was to end on 16th December, 2001. IN this judgment we would also be making reference to the provisions of the Bombay Provincial Municipal Corporation Act 1949 which for the sake of convenience and brevity will be referred to as B.P. Municipal Corporation Act. Part IXA came to be inserted into the Constitution of India by Seventy Fourth Amendment w.e.f. 1.6.1993. This Part contemplates constitution of Nagar Panchayats, Municipal Councils and Municipal Corporations in every State. The three tools of local self government are contemplated by the Constitution to administer a transitional area, a smaller urban area and a larger urban area respectively. Article 243Q(2) defines these three areas to mean such areas as the Governor may having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as the Governor may deem fit specify by public notification for the purpose of Part IXA. We are concerned with smaller or larger urban areas based whereon a Municipal Council or a Municipal Corporation, respectively, shall be constituted. It is not disputed that so far as the factor of population is concerned, the bench mark dividing the areas to be administered by Municipal Council or by Municipal Corporation, as the case may be, is the population of three lakhs. The urban area having population less than three lakhs is a smaller urban area to be administered by Municipal Council and an urban area having a population of not less than three lakhs is a larger urban area to be administered by a Municipal Corporation. On 13.8.2001, the Directorate of Census Operations, Maharashtra, published Census of India 2001, Series 28 Maharashtra, Provisional Population Totals, Paper-2 of 2001, Rural - Urban Distribution of Populations. According to the Census 2001, the urban population of Jalgaon, the city having the status of Municipal Council, was 3,68,579 persons. The Census also classifies the said total figure of persons by reference to age groups and literacy levels with which we are not concerned. The factum of publication of population totals as on 13.8.2001 and the correctness of the figure of population is not disputed by any of the parties.
(3.) 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, 2001, the State Government published two proclamations, respectively under the provisions of the B.P. Municipal Corporations Act and M.R. Municipal Council Act reproduced as under:- "NOTIFICATION Urban Development Department Mantralaya, MUMBAI 400 032. Dated the 16th October 2001 Bombay Provincial Municipal Corporation Act, 1949 No. GEN 1596/194/C.R. 126/96/ UD-24 - The following draft of notification, which the Government of Maharashtra proposes to make in exercise of the powers conferred by sub-Section (2) of Section 3 of the Bombay Provincial Municipal Corporation Act, 1949 (Bom. 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 consid- eration by the Government of Maharashtra on or after day of 18th December, 2001. 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 according 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 mentioned 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 (Bom. 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 previous publication of the draft notification as required by sub-Section (4) of said Section 3, the Government of Maharashtra hereby specifies the 18th December, 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 Jalgaon 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. SCHEDULE Area, which shall form the Jalgaon 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" "Jalgaon smaller urban area Dist. Jalgaon" By Order and in the name of the Governor of Maharashtra. Sd/- (Ramanand Tiwari) Principal Secretary to Government PROCLAMATION Urban Development Department Mantralaya, Mumbai 400 032 Dated the 16th October 2001 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 Department No. GEN 1596/194/C.R. 126/ 96/U.D.-24, dated the 16th October 2001, issued in exercise of the powers conferred by sub-Section (2) of Section 3 of the Bombay Provincial Municipal Corporations Act, 1949 (Bom. LIX of 1949), the Government of Maharashtra has announced its intention to declare 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 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 (1) of Section 6 of the Municipal Councils Act that the existing Jalgaon 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 (Bom. LIX of 1949), specifying Jalgaon larger urban area, which shall form a city and shall have a Municipal Corporation known by the name '"Municipal Corporation of the City of Jalgaon". 2. All percns who entertain any objections to the said proposal are required to submit the same, with reasons therefore in writing to the 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 2001, another two proclamations were issued under the said two acts respectively and by reference to the provisions mentioned therein, which are reproduced 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, 2001, issued in exercise of the powers conferred by sub-Section (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 Municipal area within the meaning of the Municipal Councils Act; And whereas the provisions of sub-Section (3) of the Municipal Councils Act having been retrospectively amended with effect from the 16th October, 2001, by the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships (Second Amendment) Ordinance, 2001 (Mah. Ord. XXXVII of 2001), with a view to provide that the objection to the proposal shall be entertained within a period of thirty 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 powers conferred by sub-section (3) of Section 3 of the Municipal Councils Act as amended by the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships (Second Amendment) Ordinance, 2001, the Government of Maharashtra hereby specifies the 21st November, 2001 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 1596/94/C.R. 126/96/ UD- 24:- In exercise of the powers conferred by sub-section (2) of Section 3 read with sub-Section (4) thereof of the Bombay Provincial Municipal Corporations Act, 1949 (Bom. LIX of 1949), and of all other powers enabling it in that behalf, the Government of Maharashtra 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:- In the said notification, for the words and figures "18th day of December 2001", wherever it occurs the words and figures "21st November 2001" shall be substituted. By Order and in the name of the Governor of Maharashtra. Sd/- (Ramanand Tiwari) Principal Secretary to Government" ;