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Wednesday, February 18, 2015

If any document is created by any officer to keep it on record so as to produce it before the Court, it is a serious matter which requires to be inquired into by the concerned authority. =The State has neither created any document nor filed the same before the High Court or this Court. If any document is created by any officer to keep it on record so as to produce it before the Court, it is a serious matter which requires to be inquired into by the concerned authority. In view of the fact that a detailed inquiry is required, we find it more feasible to direct the State Government to inquire into the matter and, if so necessary, file an FIR against the alleged officers who might have created the document containing the name of nine conspicuous places in the so called notification dated 3rd October, 1995, signed by the Chief Officer, Sedam in green ink. The Chief Secretary, State of Karnataka is directed to hold an inquiry with regard to notification No. TMC:SEDAM:95-96 dated 3rd October, 1995 issued from the office TMC, Sedam, signed by Chief Officer, Sedam in green ink wherein nine places have been shown for posting the notifications. If it is found to be a document created subsequently, an FIR to this effect be lodged against the concerned officials for forging documents. Departmental proceedings be also initiated and an appropriate action be taken.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.1918 OF 2015
                    (Arising out of SLP(C) No.30573 2012)


STATE OF KARNATAKA TR.                                   ... APPELLANTS
SEC. HSG. & URB. & ANR.

                                   VERSUS


VASAVADATTA CEMENT & ANOTHER                     ... RESPONDENTS


                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA,J


      Delay condoned. Leave granted.
2.    This appeal has been preferred by the appellant-  State  of  Karnataka
against the judgment dated 23rd June, 2010  passed  by  the  High  Court  of
Karnataka, Circuit Bench at Gulbarga in Writ Appeal  No.2999  of  2004  (LB-
RES). By the impugned judgment, the Division Bench of the High  Court  while
allowing the writ appeal observed as follows:

      "On a thorough consideration of the provision of  Section  9  and  the
notification produced before court which is extracted  above,  it  discloses
that there is no proper  compliance  of  posting  the  notification  at  the
requisite places as stated in Section 9."


3.    The factual matrix of the case is as follows:

      The Government of Karnataka initially by draft  Notification  No.  HUD
14 TML 84 dated 19th June/22nd July, 1986 proposed  to  alter  the  existing
limits of Town Municipal Council (hereinafter referred to as  the  'Council'
for short) Sedam for inclusion of Survey No. 630-642  within  the  municipal
limits   of   town   municipality   (hereinafter   referred   to   as    the
'municipality'), Sedam inviting objections and suggestions to  the  proposal
from persons likely to be affected therein. It was followed by  Notification
No.HUD 14 TMT 84 dated 15th April/20th May,  1987,  issued  by  Governor  of
Karnataka published in Karnataka Gazette dated  25th  May,  1987  exercising
the  power  conferred  by  sub-Section  (1)  of  Section  4   of   Karnataka
Municipalities Act, 1961 (hereinafter referred to  as  the  'Act')  altering
the existing limits of the Council,  Sedam  as  detailed  therein.   A  writ
petition No. 10187 of 1987 was filed against the aforesaid  notification  by
1st respondent which was permitted to be withdrawn  in  view  of  subsequent
notification issued by State Government on 28th November, 1995.
By the said notification dated 28th November, 1995,  it  was  notified  that
having received no objection to the proposal within  a  said  period  of  30
days from the date of publication  of  notification  dated  26th  September,
1995 inviting objections from persons  likely  to  be  affected  thereby  in
exercise of power conferred by Section 3 read with Section  9  of  the  Act,
the Governor of Karnataka specified  the smaller urban area in  Schedule  'A
 and the limits  of  which  are  specified  in  Schedule  'B'  and   further
specified it to be called 'Town  Municipal  Council  Area  of  Sedam  having
regard to:
1)    the population of the area specified in  Schedule-A   being  not  less
than twenty thousand but less than fifty thousand.

2)    the density of population  in  such  area  being  not  less  than  one
thousand five hundred inhabitants to one     square kilometer of area:

3)  the revenue generated for local administration from such area  from  tax
and non-tax sources in the year of the last preceding census being not  less
than Rs.9,00,000/- per annum;

4)     Apart  from  the  percentage  of   employment   in   non-agricultural
activities is not less than 15% of the total employment.


4.    The first respondent filed another Writ Petition No.  14554/96  before
the High Court of Karnataka, Bangalore  challenging  the  said  notification
and the same was summarily dismissed on 19th  August,  1997  observing  that
the matter is covered by the decision rendered  in  another  case.  A  Civil
Petition No.1233/2000 in WP  No.  14554/1996  was  filed  by  respondent  to
rectify the order passed by the learned Single Judge.  While  reviewing  the
said order, the petition was allowed on 20th  August,  2001  and  the  order
dated 19th August, 1997 passed in the writ petition No. 14554/1996  was  set
aside and the said writ petition was restored. However,  after  hearing  the
parties,  the learned Single Judge on 24th May,  2004  dismissed  the   writ
petition on the ground that the action of  inclusion  of  an  area   to  the
limits of  an existing Town Municipal Limits is  essentially  a  conditional
legislation  and  hence judicial  intervention is not warranted.


5.    Against the said order, the respondent preferred the writ  appeal  No.
2999/2004 which was allowed by  the  Division  Bench  by  impugned  judgment
dated 23rd June, 2010.


6.    Learned counsel appearing on behalf of the appellant  while  assailing
the  impugned  judgment,  submitted  that  the  procedure  prescribed  under
Section 9 of the Act is substantially followed and  complied  with  in  this
case. The third appellant under the directions of the  first  appellant  had
posted the notices announcing the inclusion of the  local  area  within  the
existing municipal  limits  in  all  the  conspicuous  places,  calling  for
objection from the public within 90 days but  no  objections  were  received
within the time stipulated.


7.  According to the learned counsel for the 1st respondent, the notice  has
to be posted in area sought to be added or deleted in smaller  urban  areas.
In the present case the proclamation has been neither posted in the area  of
the 1st respondent factory which is a large area  of  around  1235.03  acres
which has mini townships nor has been posted in any other area sought to  be
included in the existing smaller urban area. The only places  where  it  has
allegedly been posted are four namely;


            (1)  Panchayat Office, Old Bazar, Sedam


            (2)  Railway Statio, Sedam


            (3)  Bus Stand, Sedam and


            (4)  Notice Board of Town Municipal Council, Sedam;


which were existed in one area  and none of them are in area  sought  to  be
included in smaller urban area.


8.    Further, according to the learned counsel for the 1st respondent,  the
second part of Section 9 states that whenever it is proposed to  add  to  or
to exclude from a smaller urban area any inhabited area,  it  shall  be  the
duty of the municipal council also to post a copy of the proclamation  in  a
conspicuous place, meaning thereby  in  the  inhabited  area  sought  to  be
included or excluded from the smaller  urban  area.  The  case  of  the  1st
respondent is that it has  a  township  which  is  an  inhabited  area  with
housing for workmen, management, etc. and thus  it  was  mandatory  for  the
municipal council to post the proclamation  in  conspicuous  places  in  the
said inhabited area which was sought to be included.


9.     Learned  counsel  relied  upon  the  following  judgments   for   the
proposition that the proclamation has to be posted in the affected  area  or
concerned locality and  the  objective  of  the  proclamation  is  that  the
affected persons could come to know about the proposed change and that  such
a posting is mandatory and not merely directory.


(a)   (1985) 3 SCC 1, Collector (District Magistrate)     Allahabad  &  Anr.
vs. Raja Ram Jaiswal.


(b)   (1991)1 SCC 401, Syed Hasan Rasul Numa & Ors. vs.  Union  of  India  &
Ors.


(c)   (2011) 10 SCC 714, J&K Housing Board and Anr.      vs.  Kunwar  Sanjay
Krishan Kaul & Ors.


(d)   (2012) 6 SCC 348, Klsum R.Nadiadwala vs. State of Maharashtra & Ors.


10.   We have heard the rival contentions raised by the parties and perused
the records.


11.   For convenient reference, Section 9 of  Karnataka  Municipalities  Act
is quoted below:


   "9.      Procedure for Constitution, abolition,  etc.  of  smaller  urban
areas:


  Not less than thirty days  before  the  publication  of  any  notification
declaring any local area to be smaller urban area, or  altering  the  limits
of any such smaller urban area or declaring that the local area shall  cease
to be smaller urban area,  the Governor shall cause to be  published in  the
official  gazette  in  English  and  Kannada,   and  to  be   posted  up  in
conspicuous placed in  the  said   local  area  in  Kannada  a  proclamation
announcing that it is proposed to constitute the local area  to  be  smaller
urban area or to alter the limits of the smaller urban  area  in  a  certain
manner or to declare that the local area shall cease to be a  smaller  urban
area,  as the case may be,  and requiring  all  persons  who  entertain  any
objection to the said  proposal  to  submit  the  same,   with  the  reasons
therefore, in writing to the Director  of  Municipal  Administration  within
thirty days from the date of the said  proclamation,   and  whenever  it  is
proposed to add or exclude from a smaller urban  area  any  inhabited  area,
it shall be the  duty of the  municipal council also  to  cause  a  copy  of
such  area.  The  Director  of  Municipal  Administration  shall,  with  all
reasonable dispatch forward every objection so submitted to the Governor.

      No such notification as aforesaid shall  be  issued  by  the  Governor
unless the objection, if any, so submitted are in its  opinion  insufficient
or invalid."

      Section 9 prescribes  a  mandate  which  is  to  be  followed  by  the
Governor before publication of notification declaring any local area  to  be
smaller urban area; or altering the limits of any such small urban area;  or
declaring that the local area shall  cease  to  be  a  smaller  urban  area.
Firstly, a proclamation announcing the object/proposal of such  notification
should be published in the Official Gazette  in  both  English  and  Kannada
language. Secondly,  such  proclamation  should  be  posted  in  conspicuous
places in the said local area  'in  Kannada'.   Thirdly,  such  proclamation
shall require all persons who has any objection  to  the  said  proposal  to
submit the same stating reasons within thirty days from  the  date  of  such
proclamation.

      Section 9 further stipulates that whenever it is proposed  to  add  or
exclude from a smaller urban area any inhabited area, it shall be  the  duty
of the municipal council to cause a copy of such proclamation to  be  posted
up in conspicuous  places in such area. The phrase "such area"  used  herein
means the inhabited area which is proposed to be added or excluded from  the
smaller urban area.

12.   Section 9 of the Act has to be read in the light of  Article  243Q  of
the Constitution of India which is as under:


      "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 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 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 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  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 general for local economic importance or such other factors  as  may
be deem fit, specify by public notification or the purposes of this Part."



13.   The Provision of Section 9 is somewhat similar to  Section  4  of  the
Land  Acquisition  Act,  1894  whereunder  the  posting  of  the  notice  in
conspicuous/convenient places is mandatory.

      If the argument advanced by the learned senior counsel for  the  first
respondent is accepted, in that case every affected  person  whose  land  is
sought to be included for the purpose of alteration of  the  limits  of  the
smaller urban area would claim that such notice must be posted in his land.



14.   The Office of the Collector, Panchayat Office,  Office  of  Tehsildar,
Office of  municipality, railway station and bus stand,  etc. of  the  local
area are  public places; which are expected to be visited by general  public
for one or the other reason. Those places  can  be  safely  expected  to  be
conspicuous/convenient places for posting  a  notice  about  declaration  of
local area to be smaller urban area  or  altering  the  limit  of  any  such
smaller urban area as is done in the case of land acquisition.



15.   If the stand of the 1st respondent is accepted that the notice  should
have been posted within the township of  1st  respondent,   then   it  would
frustrate the objective of Section 9 of the Act as  other  affected  persons
whose land would also come under the purview of the said notification  might
not have any access to such notice posted within the boundaries  of the  1st
respondent's factory,  being  not  a  public  place.  In  such  case,  every
individual/affected persons will claim posting of such notice at their  land
which will amount to giving individual notice to all affected persons.

16.   Notification dated 3rd October, 1995 was posted  at  four  conspicuous
places, the English version of which reads as follows:

            "No.TMC;95-96                    Office of the TMC

                                             Sedam, dated 3.10.1995

                                NOTIFICATION

                 Sub.: Publication of Govt. Circular

Ref.:  Govt.   Circular,   bearing   No.:NE:407:MLR:95,   Bangalore,   Dated
26.09.1995

                                  --------

With reference to the above subject,  the public of the Town Municipal  area
are informed that vide Circular stated in the reference, the  boundaries  of
Sedam Town Municipalities is proposed to be altered to extend the  municipal
area. Any person having objections to  the  said  proposal  can  file  their
written objections within 30 days. The public area hereby  informed  of  the
same by this notification.


                                                                       1 Sd.


                                                               Chief Officer


                                                                      SEDAM"


It is directed that the copy of the Notification should  be  posted  at  the
following places:


i)  Panchayat Office, Old Bazar, Sedam


ii) Railway Station,  Sedam


iii)Bus Stand,  Sedam


iv) Notice Board of Town Municipal Council,           Sedam."


2 17. Learned counsel for the 1st respondent accepted   that  the  Panchayat
Office of the 1st respondent   is  at  Old  Bazar,  Sedam,  nearest  railway
station is at Sedam  and  the  bus  stand  for  the  employees  of  the  1st
respondent is at Sedam. This indicates that all the persons,  who  are  said
to be affected by the notification, were informed   sufficiently  by  notice
dated 3rd October, 1995 posted at the above said conspicuous places.

18.   Learned senior counsel for the  1st  respondent  next  contended  that
only the factory and residential area of the 1st  respondent  was  added  by
notification dated  28th  November,  1995  but  such  submission  cannot  be
accepted in view of the fact that apart from the  land  of  1st  respondent,
land belonging to others were also shown  in  the  said  notification  dated
28th November, 1995.

19.    However,  on  perusal  of  the  original   record,    we   find   two
notifications both dated  3rd  October,  1995  having  same  number  are  on
record.  Per se, both notifications dated 3rd October,  1995  are  same  but
there is a substantial difference in the last paragraph which  mentions  the
places where copies of the notification  were  to  be  posted.  In  the  1st
notification dated 3rd October, 1995, which appears to be original,  it  has
been shown that the notice   to  be   posted  at  four  places  namely,  (i)
Panchayat Office, Old Bazar, Sedam; (ii) Railway Station,   Sedam;  (iii)Bus
Stand, Sedam and (iv) Notice Board of Town Municipal Council, Sedam.  It  is
an old paper, laminated to ensure that it should not be damaged and  in  the
back of it apart from thumb impressions, signatures also have been  obtained
from different individuals to show  that  the  notification  was  posted  in
presence of those witnesses.

      The other notification dated 3rd October, 1995  shows  that  direction
has been issued to post the said notification  at  nine  places,  i.e.  five
more places apart from the aforesaid four  places  mentioned  in  the  first
notification. The additional five places include the premises of  the  first
respondent. The second notification is signed in green  ink  by  some  other
officer. Prima facie it appears that the  notification  dated  3rd  October,
1995  containing  nine  conspicuous places wherein it was  to  be  notified,
signed in green ink by some officer has been prepared subsequently.

20.   Learned counsel appearing on behalf of the  1st  respondent  requested
the Court to initiate contempt proceedings against  the  concerned  official
and to dismiss the appeal as the document has been created  to  mislead  the
Court.

21.   The appeal has been preferred by the State of  Karnataka.   The  State
has neither created any document nor filed the same before  the  High  Court
or this Court. If any document is created by  any  officer  to  keep  it  on
record so as to produce it before the Court, it is a  serious  matter  which
requires to be inquired into by the concerned  authority.  In  view  of  the
fact that a detailed inquiry is  required,  we  find  it  more  feasible  to
direct  the  State  Government  to  inquire  into  the  matter  and,  if  so
necessary, file an FIR against the alleged officers who might  have  created
the document containing the name  of  nine  conspicuous  places  in  the  so
called notification dated 3rd October, 1995, signed by  the  Chief  Officer,
Sedam in green ink.

      The Chief Secretary,  State  of  Karnataka  is  directed  to  hold  an
inquiry with regard to notification No. TMC:SEDAM:95-96 dated  3rd  October,
1995 issued from the office TMC, Sedam, signed by Chief  Officer,  Sedam  in
green  ink  wherein  nine  places  have   been   shown   for   posting   the
notifications. If it is found to be a document created subsequently, an  FIR
to this effect  be  lodged  against  the  concerned  officials  for  forging
documents. Departmental proceedings be also  initiated  and  an  appropriate
action be taken.

22.   The appeal is allowed with the aforesaid observations and directions.

..............................................................................
                                                                       ...J.
                                        (SUDHANSU JYOTI MUKHOPADHAYA)



..............................................................................
                                                                       ...J.
                                  (VIKRAMAJIT SEN)
NEW DELHI,
FEBRUARY 16, 2015.

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