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Swastik Oil Mills and anr. Vs. State of Gujarat, Ahmedabad and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 115 of 1961
Judge
Reported inAIR1966Guj31
ActsBombay District Municipal Act, 1901 - Sections 4, 4(1), 4(2), 6, 7, 8, 8(1), 8(2) and 8(3)
AppellantSwastik Oil Mills and anr.
RespondentState of Gujarat, Ahmedabad and anr.
Appellant Advocate I.M. Nanavati, Adv.
Respondent Advocate A.N. Surti, Asst. Govt. Pleader,; K.L. Talsania, Addl. Govt. Pleader and;
DispositionPetition dismissed
Cases ReferredState of U. P. v. Babu Ram
Excerpt:
.....belatedly stands good than to hold it null and void - objections so filed duly considered by state government with subjective opinion that objections not sound - requirements of section 8 duly complied with - notification cannot be challenged on ground that it contravened section 8 (2) due to collector's failure to forward objections with all reasonable dispatch - held, attack on notification falls and notification upheld. - - (2) that as the notification rejected the objections only on the ground that they were invalid and as there was no invalidity per se, the notification was clearly illegal and ultra vires; section 4(1) provides that subject to the provisions of sections 6, 7 and 8, the state government may, from time to time, by notification in the official gazette,..........has challenged the notification, dated 8th december, 1960, issued by respondent no. 1, the state government, under section 4 of the bombay district municipal act, 1901, (hereinafter referred to as 'the act').2. the short facts which have given rise to this petition are as under:the petitioner is a partnership firm carrying on business of oil mills at rajpipla. the petitioner's factory, known as swastik oil mills, is situated on lands bearing s. no. 809. the said factory was formerly run by m/s. dhane-shwar oil mills, a partnership firm, from whom in or about march 1960. shri ishvarlal lallu-bhai and shri chajurbhai lallubhai had purchased the same. the petitioner had in turn purchased the said factory on or about october 25, i960, from the said ishvarlal lallu-bhai and chaturbhai.....
Judgment:

Mehta, J.

1. In this petition under Articles 225 and 227 of the Constitution, the petitioner has challenged the notification, dated 8th December, 1960, issued by respondent No. 1, the State Government, under Section 4 of the Bombay District Municipal Act, 1901, (hereinafter referred to as 'the Act').

2. The short facts which have given rise to this petition are as under:

The petitioner is a partnership firm carrying on business of oil mills at Rajpipla. The petitioner's factory, known as Swastik Oil Mills, is situated on lands bearing S. No. 809. The said factory was formerly run by M/s. Dhane-shwar Oil Mills, a partnership firm, from whom in or about March 1960. Shri Ishvarlal Lallu-bhai and Shri Chajurbhai Lallubhai had purchased the same. The petitioner had in turn purchased the said factory on or about October 25, I960, from the said Ishvarlal Lallu-bhai and Chaturbhai Lallubhai and after that date the petitioner had started this factory on the said survey number. On December 4, 1958, a notification under Section 8 of the Act was issued inviting objections to the proposal of extension of the municipal limits so as to cover several lands, including the lands, on which tho petitioner's oil mills and certain other factories wore situated. Thereafter the final notification under Section 4 dated April 8, 1960, was issued extending the municipal limits so as to include the land in question within the municipal limits of the Rajpipla municipality who s respondent No. 2. This notification was challenged by one Narbada Valley Chemical Industries Private Limited which owned the Catachu factory by Special Civil Application No. 274/1960 which was filed on May 30,1960. By a decision of this Court the notification under Section 4 was quashed on the ground that the objections which were received by the Collector were not forwarded to respondent No. 1 and so the objections which were submitted within the requisite time limit of two months were not considered as required by Section 8(3) before issuing the notification and the said notification was therefore set aside by the order dated August 2, 1960. It seems, meanwhile on June 26, 1960, the Collector had forwarded the objections to respondent No. 1. Thereafter without inviting fresh objections the final notification under Section 4, dated December 8, 1960, published on December 29, 1960, was again issued extending the municipal limits so as to include the petitioner's lands in question along with the other lands. It is this notification which is challenged by the petitioner The said notification runs as under:

'Whereas the Government of Bombay by its Notification, Local Self Government and Public Health Department No. DTMA. 1258 dated the 4th December, 1958, issued under Section 8 of the Bombay District Municipal Act, 1901 (Bom. III of 1901) caused to be published a proclamation announcing that if it is proposed to alter the limits of the local area comprised in the Municipal District of the Municipality of Rajpipla, as mentioned in the said Notification.

And whereas the objections received by the Collector to the said proposal or in the opinion of the Government of Gujarat, invalid.

Now, therefore, in exercise of the powers conferred by the Sub-section (1) of Section 4 of the said Act and in supersession of Government of Bombay Notification, Local Self Government and Public Health Department No. DTMA. 1258-A dated the 8th April, 1960, the Government of Gujarat hereby alters the limits of the Municipal District of the Municipality of Rajpipla so as to include therein, with effect from the date of the publication of this notification in the official Gazette the area specified in Schedule 'A' and bounded by the boundaries specified in Schedule 'B' appended hereto'. In the said Schedule the land of the petitioner is included. The petitioner's case is that the said notification has been issued in breach of the mandatory requirements of Section 8 without inviting fresh objections. The Collector not having forwarded the objections with all reasonable despatch, the said objections which were belatedly forwarded by the Collector could not have been considered and as all the steps necessary for issuing the said notification were not followed by the Government, the notification was illegal and ultra vires. The notification was also challenged on the ground that it was illegal inasmuch as it proceeded on the basis that the objections were invalid even though they were submitted within the requisite period of two months. Finally, the petitioners also challenged the notification on the ground that the same having been issued in a grossly unreasonable manner without giving a fair opportunity to the petitioner and others to submit their fresh objections, it was a fraud on the statute. On behalf of respondent No. 1, the Under Secretary to the Government has filed the reply. It is the case of respondent No. 1 that it was not necessary to invite objections once again. It is further stated by him that the Collector had forwarded the objections to respondent No. 1 with his letter dated June 26 1960, when he found out that through oversight the said objections remained to be forwarded to respondent No. 1 by him. Both the respondents have supported the said notification.

3. At the hearing Mr. Nanavati for the petitioners challenged the said notification on three grounds:

(1) that Section 8(2) enjoins an obligation of quick despatch of objections and non-compliance with that provision would have invalidating consequence and, therefore, the objections which were so belatedly forwarded after about a year and a half by the Collector were invalid and as the notification was issued on a consideration of these objections, it was also invalid;

(2) that as the notification rejected the objections only on the ground that they were invalid and as there was no invalidity per se, the notification was clearly illegal and ultra vires; and

(3) that as the notification was issued in it grossly unreasonable manner without giving a fair opportunity to the persons concerned to submit their objections, the notification was a fraud on the powers conferred by the statute.

4. Before considering these objections, it would be proper to consider the scheme of Sections 4 and 8 of the Act. Section 4(1) provides that subject to the provisions of Sections 6, 7 and 8, the State Government may, from time to time, by notification in the Official Gazette, declare any local areas to be a municipal district, and may from time to time, by a like notification, extend, contract or otherwise alter the limits of any municipal district, or declare that any local area, shall from a date to be specified in the notification, cease to be a municipal district. Sub-section (2) of Section 4 provides that every such notification constituting a new municipal district, or altering the limits of an existing municipal district, shall clearly set forth the local limits of the area to he included in or excluded from such municipal district, as the case-may be. Thus, the issuing of the notification under Section 4(1) for alteration of the limits of any municipal district is made subject to the provisions of Sections 6, 7 and 8. We, are only concerned in this case with the provisions of Section 8, which runs as under:

(1) Not less than two months before the publication of any notification declaring any local area a permanent municipal district, or altering the limits of any such district or declaring that any local area shall cease to be a municipal district, the State Government shall cause to be published in the official Gazette in English, and in at least one of the local newspapers, if any, in the language of the district in which such local area is situated, and to he posted up in conspicuous spots in the said local area in the language of the said district, a proclamation announcing that it is proposed to constitute such local area a municipal district, or to alter the limits of the municipal district in a certain manner, or to declare that such local area shall cease to be a municipal district, as the case may be, and requiring all persons who entertain any objection to the said proposal to submit the same, with reasons therefor, in writing to the Collector within two months from the date of the said proclamation, and whenever it is proposed to add to or exclude from a municipal district any' inhibited area, it shall be the duty of the Municipality also to cause a copy of such proclamation to be posted up in conspicuous places in such area.

(2) The Collector shall, with all reasonable despatch, forward every objection so submitted to the State Government.

(3) No such notification as aforesaid shall be issued by the State Government unless the objections, if any, so submitted are, in its opinion insufficient or invalid'.

Thus Section 8 contemplates that when a notification under Section 4 is issued for altering the limits of any municipal district, at least two months before that stage a proclamation shall be Issued announcing the proposal for alteration of such limits and inviting the objections to the said proposal in writing to the Collector within two months from the date of the said proclamation. This time-limit is set up under Sub-section (1) of Section 8 within which the objections have to be filed before the Collector from the date of the proclamation issued in regard to the proposal. Section 8(2) then requires the Collector to forward every such objection, so submitted, to the State Government with all reasonable des-patch. Sub-section (3) then casts an obligation on the State Government not to issue any such notification for altering the limits unless the objections, if any, so submitted are, in the opinion of the Government, found to be insufficient or invalid.

5. Mr. Nanavati, therefore, contends that there are three conditions precedent for issuing a notification under Section 4(1), in view of the provisions of Section 8, as under:

(1) that a proclamation should be issued inviting objections to the proposal within two months,

(2) that the objections must be forwarded by the Collector with all reasonable despatch to the Stale Government, and

(3) that the State Government must consider the objections so submitted and form an opinion that they were insufficient of invalid. It is only after these three conditions are fulfilled that a valid notification can be issued. Mr. Nanavati contended that these three conditions were in the nature of conditions precedent or conditions for the acquisition of the power to issue the notification and unless they were fulfilled, the power of issuing the notification did not exist. So far as the first two conditions are concerned, viz. the issuing of the proclamation inviting objections to the proposal within the period of two months and the condition regarding the objections so submitted within the period of two months being considered and the opinion being formed whether they were insufficient or invalid, there would be much force in Mr. Nanavati's submission that they would be mandatory conditions. Sub-section (3) of Section 8 in terms provides that no such notification shall he issued unless the objections so submitted are found to be insufficient or invalid in the opinion of the Government. This imperative clause in terms contemplates that the power of issuing the notification in the Government is coupled with the duty to form a subjective opinion after consideration of the objections, so submitted as provided under Section 8(1) within the two months period. It is only when those objections arc considered insufficient or invalid that the power could he exercised by the State Government to issue such a notification for altering the limits of the municipality. The whole purpose and object of the scheme of Sections 4 and 8 appears to be the alteration of the municipal limits and when that is done, a statutory safeguard is provided for inviting the objections and it is only when the State Government forms the subjective opinion that the objections are Insufficient or invalid that a notification can be issued. Therefore, the conditions regarding the issuing of the proclamation inviting the objections and regarding the consideration of the objections, so submitted, would be imperative in so far as it secures the valuable safeguard for hearing the objections of the persons concerned before the municipal limits are altered. The controversy, therefore, is only so far as Section 8(2) is concerned, viz., the second condition urged by Mr. Nanavati. Mr. Nanavati contends that the second condition is one composite whole, viz. that the Collector shall forward every objection, so submitted within the time prescribed under Section 8(1), to the State Government with all reasonable despatch. According to Mr. Nanavati forwarding of the objections and the reasonable despatch both constitute an integrated, one whole condition, which must he fulfilled. His contention is that if conditions Nos. 1 and 3 are mandatory, the second condition would also be mandatory and, so, both the requirements thereof should be considered as steps-in-aid for acquisition of power to issue the necessary notification. So far as this Section 8(2) is concerned, its requirements must be examined from the point of view of the exercise of the power which is to be exercised under Section 8(3). The necessary ingredient for the exercise of power under Section 8(3) is the forwarding by the Collector of the objections which are to be considered by the State Government. Unless the Collector forwards the objections submitted before him to the State Government, there would be no objections which could be considered and on which alone a subjective opinion could be formed as required under Section 8(3) by the State Government. Therefore, in so far as Section 8(2) casts a duty on the Collector to forward all objections so submitted to him, it must be considered as mandatory, because unless the Collector forwards the objections received by him, the State Government would not be in a position to consider those objections. So far as the forwarding of the objections is concerned, it must be treated as a mandatory requirement. But the same cannot be said to be true so far as the aspect of the time factor or the efficiency of despatch is concerned in forwarding the said objections.

6. Mr. Nanavati, therefore, relied on the settled principles of construction and urged that even the words 'with all reasonable despatch' used in Section 8(2) should be considered as mandatory and not as directory. For this purpose he relied on the passages from Maxwell on interpretation of Statutes, 1962 Edition, at pp. 362 to 864. It is well settled that where a condition precedent is prescribed it must he strictly fulfilled. In finding out whether the condition is a condition precedent, the negative clause or imperative language would not always he conclusive, and so also the presence of the word 'shall' would not be conclusive as to whether the requirement is mandatory or directory. If the object of the statute would be, plainly defeated, if the command to do the thing in a particular manner did not imply a prohibition to do it in any other, a mandatory requirement would have to be necessarily inferred. The determining factor would be the true intention of the Legislature and that must ultimately depend on the context. As observed by the Supreme Court in State of U. P. v. Babu Ram, AIR 1961 SC 761 at p. 766 for ascertaining the real intention the Court may consider, inter alia, the nature and design of the statute, and the consequences which would follow from construing it one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and above all, whether the object of the legislation wilt he defeated or promoted.

As pointed out by Maxwell at page 364, it may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is In the main governed by considerations of convenience and justice, and, when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the Legislature.

7. Mr. Nanavati first argued that even the formality of forwarding the objections with all reasonable despatch was really a condition precedent. As far as Section 8(3) is concerned, where a negative clause has been used, the Legislature has not provided any time-limit within which a notification has to be issued. In clause (2) of Section 8 also the condition of reasonable despatch has not been expressly made a condition precedent. Mr. Nanavati urged that the reasonable lime was implicit as otherwise the whole object of providing for the objections would be frustrated as the circumstances may change and the objections which were valid would become either invalid or Insufficient in the context of the changed circumstances and the whole right would become illusory, if the objections could be despatched at any time at the sweet will of the Collector. It is implicit in the scheme of this provision in Section 8, according to Mr. Nanavati, that there should be no time-lag between the final decision and the issuing of the proclamation. Now in considering the object of Section 8 and Section 4 what is to be kept in mind is that what is purported to be done under these two sections is the extension or contraction or alteration of the municipal limits. That is the real object underlying these two provisions. The power in this connection which is conferred on the State Government has, therefore, to be exercised for achieving this object after considering the objections which are submitted by the persons concerned. The right to submit objections is a valuable right of the persons affected by this proposal. If this right was going to be denied, the object would be clearly frustrated. Therefore, all the conditions which guaranteed this right, viz. (1) the issuing of the proclamation, the forwarding of the objections to the Government and the consideration of the objections by the Government would all be the important steps or the necessary conditions for the exercise of this important power by the Government But merely because the Collector on whom the duty is cast by the Legislature omits to forward the objections with all reason-able despatch or does not perform that duty with efficiency, it cannot be said that the right of submitting the objections is denied to the persons concerned. If the time factor was considered as an important ingredient, the Legislature would have provided a time-limit in Sub-section (3) of Section 8 itself. In fact after the time-limit of two months expires for filing the objections as provided in Section 8(1), the objectors would have no right to file further objections even if the circumstances were to change even in cases where the Collector promptly forwarded the objections. What Section 8(2) does is to cast a public duty on the Collector to forward the objections as promptly as possible. Once, therefore, he forwards the objections and the objections are ultimately considered by the State Government for issuing the necessary notification, all the requirements of Section 8 are duly compiled with. For the fault of the Collector, if any, in not forwarding the objections with sufficient promptness, the notification bythe State Government could not be invalid. The two requirements in Section 8(2) viz. forwarding the objections and doing it with all reasonable despatch are two separate requirements. The requirement of forwarding the objections goes to the very mot without which the power under Section 8(3) could not be effectively exercised and that would he a mandatory requirement, but the other requirement of forwarding it with reasonable despatch would not be mandatory. The object of these two sections would not be frustrated even if there is some delay in ultimately forwarding the objections so long as those objections are considered bythe State Government and the objectors get an opportunity of submitting their objections and getting them duty considered by the State Government.

8. Mr. Nanavati next laid much emphasis on the passage in Maxwell at p. 364 which runs us under

'A strong line of distinction may be drawn between cases where the prescriptions of the Act affect the performance of a duty and where they relate to a privilege or power. Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, It seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred and it is, therefore, probable that such was the intention of the Legislature'.

9. Mr. Nanavati, therefore, argued that Sub-section (2) of Section 8 was a clause, on compliance with which alone, the State Government acquired the power to issue the relevant notification. Now, this is not a case of it power which is coupled with a duly cast on the State Government itself. In this case a duty was cast on the Collector to forward the objections to the State Government with all reasonable despatch, while the power was conferred on the State Government to issue the notification. Mr. Nanavati tried to argue that the Collector was merely the agent of the State Government. There was no delegation to him of any such function bythe State Government. The Collector was really a statutory authority, separate from the State Government and though he is the channel through which all objections must pass, he cannot be regarded as an agent of the State Government. The two being distinct entities, even if the Collector failed in promptly forwarding the objections, the power of the State Government of issuing the notification after a consideration of these objections was not in any way affected and it cannot be urged that the State Government was taking advantage of its own wrong. As far as the State Government is concerned, the question is one of power coupled with duty to consider all the objections submitted to it and So the requirement of forwarding the objections by the Collector must be considered as mandatory, but so far as the requirement of promptness of despatch by the Collector is concerned. It is a case of mere public duty on him, which does not create a power or privilege for the benefit of the objectors and it must be considered as directory.

10. That is why the relevant paragraph in Maxwell for our purpose would be the later portion of the said paragraph on page 304:

'But when a public duly is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be, regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative.'

This rule would clearly apply in a case as the present one, where to hold this requirement of prompt despatch of objections in the discharge of his public duty by the Collector as mandatory would work injustice and hardship to the parties who would have no control over his acts, without in any way serving the aforesaid real object of this statutory provision. The public duty is cast on the Collector and as none of the contesting parties bad any control over his acts, the provision as to prompt despatch of the objections must be held to be directory and its disregard or neglect by the Collector cannot render the objection forwarded by him a nullity. The failure by the Collector to promptly perform that public duty would not rob the Government of its power to form the requisite subjective opinion and the exercise of its power to issue the notification could not be questioned on the ground that objections were not promptly forwarded, aS provision regarding prompt despatch must be regarded as merely directory and its neglect as of no consequence to the result. It would do far less harm to allow such a belatedly forwarded objection to stand good than to hold it null and void, for so to hold would not render the protection guaranteed under Section 8 of getting the objections considered by the Slate Government ineffective, because in cases when no objections are at all forwarded, the requirement of forwarding having been held to be mandatory, the notification could be quashed by the Court. This view would not cause any serious hardship to anyone. It does not appear that the object of the statute would be defeated by reading this provision of forwarding objections with reasonable despatch as directory. Mr. Nanavati also argued that general inconvenience or injustice to innocent persons would result and the real aim and object of the enactment would be frustrated, unless this requirement is held to be a mandatory one. We cannot appreciate how any general inconvenience was going to be caused to the objectors. There would be also no question of any injustice caused to the objectors or frustration of object of the Legislature so long as the objections arc duly taken into consideration by the Government, which is the real purpose and object of issuing proclamations and inviting objections against the proposal, before the final notification is issued. We, therefore, cannot agree with Mr. Nanavati that the requirement of Section 8(2) regarding the reasonable despatch is mandatory. In the present case it is clear from the affidavit of respondent No. 1 that through some inadvertence the Collector had not forwarded the objections and during the pendency of the writ petition before the High Court by a letter, dated June 26, 1960, the objections were forwarded to the Slate Government and they were duly considered by the Stale Government. Therefore, all the requirements of Section 8 are duly complied with and the notification cannot be challenged on the ground that it contravened Section 8(2) as the Collector had not forwarded the objections with all reasonable despatch as urged by Mr. Nanavati. The first ground urged byMr. Nanavati must, therefore, fail.

11. Mr. Nanavati next argued that the ground stated in the notification for rejecting the objections, viz. that the objections were invalid was ex facie erroneous. According to Mr. Nanavati the word 'invalid' In the context in Section 8(3) would mean an objection which is not submitted within the period of two months as required under Section 8(1). We cannot agree with Mr. Nanavati in this interpretation of the word 'invalid'. In both the Sections 8(2) and 8(8) the words 'so submitted' would indicate that the objections which are contemplated for being forwarded to the Government for being taken into consideration are the objections which are 'so submitted, that is, submitted as required within the two months' period as provided under Section 8(1) of the Act. The word 'invalid' is of the widest amplitude and would mean also that the objections were not sound. The Government is entitled to reject the objections both on the ground of their being invalid or insufficient. This is a subjective opinion of the Government. We do not find any ex facie error if the Government rejected the objections on the ground that they were not sound or were invalid. The objections are not before us and nothing is urged in that connection, except the narrow ground that they could not be invalid if they were filed within the two months' time-limit.

12. Finally, Mr. Nanavati contended that the notification was a fraud on the statute. Here also his argument was that if the power was exercised after such a long time in a grossly unreasonable manner without inviting fresh objections, such a power should be held to be a fraud on the statute. Respondent No. 1 has stated in its reply that through inadvertence the objections were not forwarded by the Collector to the State Government and that is why with the letter, dated June 26, 1960, they were forwarded. In the earlier writ petition only the notification under Section 4(1) was quashed as the objections had not been forwarded by the Collector. That is why during the pendency of the petition the Collector seems to have forwarded the objections to the Government and ultimately all the objections have been duly considered by the State Government and the objections have been held to be invalid. The statutory safeguard provided in Section 8, before altering the limits of the municipal district of inviting the objections and of duly considering them has been duly complied with. As only the final notification was quashed in the earlier writ petition, it was not necessary for the State Government to issue a fresh proclamation and invite fresh objections. If it was legally open to the government to act on the earlier objections, it cannot be said to be a fraud committed on the statute, if the Government acts on those objections. There is no substance, therefore, in any of the contentions advanced by Mr. Nanavati.

13. In the result, the attack on the notification falls and the notification must be upheld. The petition, therefore, fails and is dismissed. Rule discharged with costs in two separate sets for both the respondents.


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