TaxTMI 
TaxTMI 
1989 (7) TMI 97
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....mbay Provincial Municipal Corporations Act, 1949 (" the Act "). The draft notification proposed the formation of what is termed as " Kalyan Corporation " (" the Corporation "). It suggested the merging of the municipal areas of Kalyan, Ambarnath, Dombivli and Ulhasnagar. Against this proposal, there were many objections and representations from persons, companies and authorities. Ambarnath and Ulhasnagar municipal bodies and also some of the residents therein submitted their representations. They objected to the merger of their municipal areas into the Corporation. It is said that, in Ulhasnagar municipal area, Sindhis are predominant. In 1947, they were the victims of partition of the country. Being uprooted from their homeland, they have since settled down at Ulhasnagar. They have formed a union or federation called the All India Sindhi Panchayat Federation. It a is interested in having a separate identity for Ulhasnagar. The Federation challenged the said draft notification by a writ petition before the Bombay High Court. The writ petition was not disposed of on merits. It was permitted to be withdrawn on an assurance given by the Government. The Government gave the assurance th....
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....er section 3 of the Act is an extension of the legislative process and, therefore, section 3 is nothing but a piece of conditional legislation. The principles of natural justice will not apply to such legislative function nor could it be imported into it even by necessary implication. The petitioners have not challenged the validity of sub-section (2) of section 3 of the Act and, even otherwise, the said validity has been upheld by a Division Bench of this court (Shah and Deshpande JJ.) in Writ Petition No. 706-A of 1982 (Village Panchayat Chikalthana v. State of Maharashtra) decided on 23/24 December, 1982. Therefore, it cannot be said that the notification issued in exercise of the said legislative power is vitiated by non-compliance with the principles of natural justice. The conditions laid down by section 3 are fully complied with ; a preliminary notification was issued as contemplated by sub-section (4) of section 3 of the Act ; the objections and suggestions made by the various citizens and persons were duly considered by the State Government and thereafter the final notification was issued. In the very nature of things, there is bound to be difference and variance between t....
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....the social world where all belts of civilization inter-twine along its avenues. A municipal corporation is . . . in nature, where people belonging to different castes, creeds, religions and language want to live with each other. Town planning cannot be denominational or fractional. It is not a museum of human beings ; otherwise, Harijan Bastis, Mominpuras and such other Mohallas will have to be preserved to maintain their separate identity and the socio-economic map of the village or city will never change. It cannot be forgotten that we are heading towards a global village. By saying this, we do not want to belittle the achievements or sacrifices of the Sindhi community. However, that is not very relevant for deciding the question of the establishment of a municipal corporation. Its main object is to ensure better municipal government of the city. It appears that the Government was also aware of this and this seems to be the reason why the decision " for the time being " is pertinent and clearly indicates that the Government wanted to reconsider the issue at a later stage. However, unfortunately, till today, Government has not taken any decision in that behalf. " The High Court....
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....he High Court, the State Government has not preferred any appeal. The Kalyan City Corporation, though vitally concerned with the matter, has also not appealed to this court. The present appeals are only by those who were impleaded as interveners in the writ petitions. We have heard counsel for all parties and gave our best attention to the questions raised by the appellants. Counsel for the appellants reiterated the stand taken by the Government before the High Court. He urged that the State has a wide discretion in the selection of areas for constituting a Corporation and the court cannot interfere with such discretion. The court has no jurisdiction to examine the validity of the reason that goes into the decision of the Government. The power to constitute municipal corporations under section 3 of the Act is legislative in character. It is an extension of the legislative process for which rules of natural justice have no application. He said that the Government, in the instant case, has complied with the statutory requirements and it was not expected to do anything more in the premises. And, at any rate, it is wholly unnecessary, according to counsel, to go through that exercis....
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....really fell fairly and squarely within what was said there. They were indeed on terra firma since the decision in Chikalthana's case was a clear authority against every contention raised by the petitioners. Faced with this predicament, counsel for the petitioners urged before the High Court that their case should be referred to a larger Bench to reconsider the decision in Chikalthana's case. But the learned judges (Dharmadhikari and Kantharia JJ.) did not heed to that submission. They neither referred the case to a larger Bench nor followed the view taken in Chikalthana's case. It was not as if they did not comprehend the issue to be determined and the principle to be applied. They were very much aware of it when they remarked : " In our opinion, once it is accepted that this is a piece of conditional legislation, then it will have to be held that the principles of natural justice would not apply to such a case as held by the Division Bench of this court in Village Panchayat Chikalthana's case nor could it be said that because under a mistaken notice, the federation was heard, the denial of such a right to the petitioners will amount to hostile discrimination within the contempl....
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....in law than any other thing, it is the quality of certainty. That quality would totally disappear if judges of co-ordinate jurisdiction in a High Court start overruling one another's decisions. " The attitude of the Chief Justice, Gajendragadkar, in Lala Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767, was not quite different : " It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned single judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned single judge, departed from this traditional way in the present case and chose to examine the question himself. " Chief Justice Patha....
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....ositive vein. One should never let a decision go until one is absolutely sure it is right. The law must be made clear, certain and consistent. But certitude is not the test of certainty and consistency does not mean that there should be no word of new content. The principle of law may develop side by side with new content but not with inconsistencies. There could be waxing and waning of the principle depending upon the pragmatic needs and moral yearnings. Such development of law, particularly, is inevitable in our developing country. In Raghubir Singh's case, learned Chief Justice Pathak had this to say ([1989] 178 ITR 548, 557 ; 66 Comp Cas 466, 475) : " Legal compulsions cannot be limited by existing legal propositions, because there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which would well affect the validity of existing legal dogmas. The search for solutions responsive to a changing social era involves a search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminacy such as 'fairness' or 'reasonableness', but also among pr....
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....e present case, the Government did publish the proposal by a draft notification and also considered the representations received. It was only thereafter that a decision was taken to exclude Ulhasnagar for the time being. That decision became final when it was notified under section 3(2). The court cannot sit in judgment over such decision. It cannot lay down norms for the exercise of that power. It cannot substitute even " its juster will for theirs. " Equally, the rule issued by the High Court to hear the parties is untenable. The Government, in the exercise of its powers under section 3, is not subject to the rules of natural justice any more than is the Legislature itself. The rules of natural justice are not applicable to legislative action, plenary or subordinate. The procedural requirement of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed. The High Court, therefore, was in error in directing the Government to hear the parties who are not entitled to be heard under law. Megarry J. in Bates v. Lord Hailsham of St. Marylebone [1972] 1 WLR 1373 (Ch D), while dealing with the legislative process under section 56 of the So....
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....entation regarding the advisability of extending the limits of the Town Area Committee. Venkataramiah J., as the present learned Chief Justice then was, while rejecting the contention observed (at pages 1119-20 of 2 SCR and at page 887 of AIR 1980 SC) : " The power of the State Government to make a declaration under section 3 of the Act is legislative in character because the application of the rest of the provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration. Section 3 of the Act is in the nature of a conditional legislation. Dealing with the nature of functions of a non-judicial authority, Prof. S. A. de Smith in Judicial Review of Administrative Action (third edition) observes at page 163 : 'However, the analytical classification of a function may be a conclusive factor in excluding the operation of the audi alteram partem rule. It is generally assumed that in English law the making of a subordinate legislative instrument need not be preceded by notice or hearing unless the parent Act so provides.' " In Baldev Singh v. State of Himachal Pradesh [1987] 2 SCC 510 AIR 1987 SC 1239 a similar question arose for con....