The Apex Court dealt with a very interesting question as to what is a conspicuous place for posting of a Public Notice under land acquisition law which if not read might affect rights of several persons. It has held that 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 and are expected to be visited by general public, so they can safely be assumed as conspicuous places for making a declaration under an Act.
The Bench comprising of Justices Sudhanshu Jyoti Mukhopadhaya and Vikramajit Sen allowed the appeal filed by Karnataka State whereby it has upheld the provision of Section 9 of the Karnataka Municipalities Act, 1961 and the notification issued in reference to that.
The brief facts are that the Government of Karnataka initially proposed to alter the existing limits of Town Municipal Council, Sedam for inclusion of Survey No. 630-642 within the municipal limits of town municipality. It invited objections and suggestions to the proposal from persons likely to be affected therein. It then notified that having received no objection from persons likely to be affected within the said period of 30 days from the date of publication of notification, Governor of Karnataka specified the smaller urban area and further specified it to be called Town Municipal Council Area of Sedam.
The case of the 1st respondent was that the notice has to be posted in area sought to be added or deleted in smaller urban areas, but it was not posted in the area of his factory which is a large area of around 1235.03 acres and is an inhabited area with housing for workmen, management, etc and has mini townships. It has not even been posted in any other area sought to be included.
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 and notice had posted 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.
Court held that Section 9 of the Act has to be read in the light of Article 243Q of the Constitution of India and that the Provision of Section 9 is somewhat similar to Section 4 of the Land Acquisition Act, 1894 where under the posting of the notice in conspicuous/convenient places is mandatory.
It held that if the argument advanced by the 1st 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. That the notice was posted in the Office of the Collector, Panchayat Office, Office of Tehsildar, Office of municipality, railway station and bus stand, etc. of the local area which are public places and are expected to be visited by general public for one or the other reason and can be safely expected to be conspicuous/convenient places for posting a notice about such a declaration. If notice was posted within the township of 1st respondent, then other affected persons might not have any access to such notice, as posted not on 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.
The judgment undeclaredly goes hand in hand with the relative criminal law jurisprudence for posting of wanted posters for proclaimed offenders, history sheeters etc at public places. Such places have to be chosen tactfully so that more views are recorded in less time. In land acquisition jurisprudence, for such public notices, even more caution needs to be taken care of as it involves huge amount of money and basic rights of citizens at large are involved. This also dates back to the doctrine of individual responsibility for collective conscience under common law designed to address issues for public at large.
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.
SEC. HSG. & URB. & ANR.
... APPELLANTS
VERSUS
VASAVADATTA CEMENT & ANOTHER
Dated;FEBRUARY 16, 2015.
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 19 th June/22nd July, 1986
Page 1
2
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
15 th
April/20th May, 1987, issued by Governor of Karnataka published
in Karnataka Gazette dated 25th May, 1987 exercising the power
conferred
by
sub-Section
Municipalities
Act,
1961
(1)
of
Section
(hereinafter
4
of
referred
Karnataka
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
Schedule 'A
'B' and
the smaller urban area in
and the limits of which are specified in Schedule
further specified it to be called 'Town Municipal
Council Area of Sedam having regard to:
Page 2
3
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
14554/96
respondent
before
the
High
filed
Court
another
of
Writ
Petition
Karnataka,
No.
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 19 th August,
1997 passed in the writ petition No. 14554/1996 was set aside
and the said writ petition was restored. However,
hearing the parties,
2004 dismissed the
after
the learned Single Judge on 24th May,
writ petition on the ground that the
action of inclusion of an area to the limits of an existing
Town essentially conditional
Municipal
legislation
and
Limits
hence
is
judicial
a
intervention
is
not
warranted.
Page 3
4
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
while
counsel
assailing
procedure
appearing
the
impugned
prescribed
under
on
behalf
judgment,
Section
of
the
appellant
submitted
9
of
that the
Act is
the
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
conspicuous
the
places,
existing
municipal
calling
for
limits
objection
in
from
all
the
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
Page 4
5
(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
conspicuous
to
place,
post
a
meaning
copy
of
thereby
the
in
proclamation
the
in
inhabited
a
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.
Page 5
6
(c) (d)
10.
(2011) 10 SCC 714, J&K Housing Board and
Anr. vs. Kunwar Sanjay Krishan Kaul & Ors.
(2012) 6 SCC 348, Klsum R.Nadiadwala vs.
State of Maharashtra & Ors.
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,
etc. of smaller urban areas:
abolition,
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.”
Page 6
7
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
proclamation
to
be
a
smaller
announcing
urban
the
area.
object/proposal
Firstly,
of
a
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
State,-
shall
be
constituted
in
every
Page 7
8
(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
Page 8
9
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
stand,
etc. of
municipality, railway station and bus
the local area are
public places; which are
expected to be visited by general public for one or the other
reason.
Those
places
conspicuous/convenient
can
places
be
safely
for
expected
posting
a
notice
to
be
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
respondent,
have
then
been
posted
within
the
township
of
1 st
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.
Page 9
10
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.
No.:NE:407:MLR:95,
26.09.1995
Circular,
Bangalore,
bearing
Dated
–-------
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.
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,
iii)Bus Stand,
Sedam
Sedam
iv) Notice Board of Town Municipal Council,
Sedam.”
Page 10
11
17.
Learned counsel for the 1st respondent accepted
Panchayat Office of the 1st respondent
that the
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 3 rd
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 28 th
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 1 st
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
Page 11
12
apart
from
obtained
thumb
from
impressions,
different
signatures
individuals
to
also
have
show
been
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
additional
mentioned
five
places
in
the
include
first
the
notification.
premises
of
the
The
first
respondent. The second notification is signed in green ink by
some
other
officer.
notification
dated
3rd
Prima
facie
October,
it
1995
appears
that
containing
conspicuous places wherein it was to be notified,
the
nine
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
Page 12
13
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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