HIND LAMPS LTD Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) By a notification dated 4th September, 1973, the State Government, in exercise of power under Section 5 (1) (d) of the U. P. Muni cipalities Act (hereinafter referred to as the Act), included certain areas within the Municipal limits of Shikohabad with effect from 5th September, 1973. The petitioner has challenged the legality of the aforesaid notification. The petitioner is a public limited company carrying on the business of manufacture of electric lamps, bulbs, fluorescent tubes, miniature bulbs and other components with its registered office and factory at Shikohabad, district Mainpuri. The case set up by the petitioner was that it has built its own small township across the railway station of Shikohabad on the land in village Mizampur Garhuma and Ubti outside the municipal area of Shikohabad. This township is built over an area of about 85 acres of land. The petitioner company has built its own factory, office premises, residential quarters for officers and other employees, canteen, dispensary, school, co-operative consumer stores, clubs and has its own power generator for producing electricity. It has cons tructed its own pucca roads, parks, children's play ground, employees' play ground, its own sewage line and has also its own water supply system providing water to the factory as well as to every residential quarters and has its own sanitation arrangements. The Shikohabad town is situate towards north of the Railway line and the area of the Municipal Board, Shikohabad, extended upto this railway line. A notification under Section 4 (1) of the Act was published in the U. P. Gazette dated 29th August 1964 containing _a draft of the notification which the Government of Uttar Pradesh proposed to issue in exercise of powers under clause (d) of sub-section (1) of Section 3 of the Act in respect of municipality of Shikohabad for information of all concerned with a view to inviting sugges tion and objections in respect thereof. The objections and suggestions were to be made within three weeks from the date of publication of the notification. According to the petitioner Company it learnt of the proposal for extension of the Municipal limits of Shikohabad towards the end of January 1965. By its letter dated llth February 1965, addressed to the Secretary, Local Self Govern ment, Uttar Pradesh, Lucknow, the Company suggested to drop the proposal to include the petitioner Company's land within the Municipal limits. The petitioner Company did not hear anything from the Government of Uttar Pradesh or from the Municipal Board about the aforesaid proposal for a long time. The petitioner received a letter dated 31st October 1969 from the Sub-Divisional Magistrate, Shikohabad, requiring the petitioner Company to re present its case before the said Officer on 18th November, 1969, in respect of the proposal for extension of the Municipal limits. The petitioner company made a written representation on 7th February 1970. On 13th July 1971, the petition r Company addressed a similar letter to the District Magistrate, Main-puri, regarding the proposal in question. A representative of the petitioner Company along with certain other industrialists of Agra Region had a meeting with the Commissioner, Agra Division, Agra, on 21st April 1971, and apprised him of the serious consequences of extension of the Municipal limits of Shikohabad. The Commissioner recommended that the proposal for extension of the municipal limits should not be accepted. The petitioner Company learnt from the local municipal circles that some time in April 1972, the Secretary to the Local Self Government, Uttar Pradesh, Lucknow, asked the District Magistrate, Mainpuri to send fresh proposals for extension of the Municipal limits of Shikohabad after excluding the land of the petitioner Company. It was not known whether any fresh proposals were submitted but the impugned notification dated 4th September 1973, was published in U. P. Gazette dated 15th September 1973, extending the municipal limits of Shikohabad under which the entire land owned by the petitioner Company has been included. Sri Khare, learned counsel for the petitioner, contended that a valid notification under clause (d) of sub- section (1) of Section 3 of the Act could be issued by the State Government only after a notification being issued after the previous publication required by Section 4 (1) of the Act. The publication of the notification dated 29th August 1964 did not comply with the provisions of Section 4 (1) of the Act and consequently the notification under Section 3 (1) was invalid and mandatory for the State Government to publish a draft in Hindi of the proposed notification under Section 4 (1) in a paper approved by the State Government for purposes of publication of public notices, published in the district or, if there was no such paper in the district, in the division in which the local area covered by the notification is situate, and comes to be affixed at the office of the District Magistrate and at one or more conspicuous places within or adjacent to the local area concerned and since this was not done, no valued notification could be issued under Section 3 (1") of the Act. The provision for publication of the draft of the proposed notification in an approved paper of the district or the local area was introduced in the Act by U. P, Act No. 27 of 1964 which came into force on 30th November, 1964 i. e,, after the publication of the notification under Section 4 (1) of the Act, which was done on 29th August, 1964. At that time the only requirement of the law was that the draft notification shall be published in the official Gazette and be affixed at the office of the District Magistrate and at one or more conspicuous places within or adjacent to the local area. It was, however, con tended that the amendment introduced by U. P. Act No. 27 of 1964 was pro cedural in nature and consequently retrospective in operation and being mandatory it had to be complied with before a valid notification could be issued under Section 3 (1) of the Act. We find no merit in the contention. While it is true that as a general rule alterations in the form of procedure are retrospective in character unless there is some good reason or other why they should not be, it is equally well settled that a statute should not be so cons trued as to create new disabilities (1) of obligation or impose new duties in respect of transactions which were complete at the time the amending Act came into foree. Applying this principle the Supreme Court in Matri Copal Mitra v. State of Bihar, A. I. R. 1970 S. C. 1936 held that whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. No clear averment has been made in the petition, regarding affirmation of the draft notification at the office of the District Magis trate and at one or more conspicuous places within or adjacent to the local area concerned. In the counter affidavit filed on behalf of the respondents it has been clearly asserted that when the notification dated 29th August 1964 was issued, all formalities required under the law had been gone into. We see no reason to doubt the averment made in the counter affidavit. Since these formalities had been concluded before Section 4 was amended, it was not by the amended provision. It was next contended that when the Sub-Divisional Magistrate by his letter dated 31st October 1969 required the petitioner to make a representation, it was incumbent on the State Government to first comply with the require ments of the amended provision of Section 4 (1) of the Act. The argument is misconceived. On 4th February 1965, the petitioner had made a represen tation on coming to know of the Gazette notification dated 29th August 1964. The Sub-Divisional Magistrate by his letter dated 31st October, 1969 only afforded another opportunity to the petitioner to make its representation. It was not necessary that the formalities contemplated under Section 4 (1) should have been undergone again before a representation was entertained. The validity of the notification was also challenged on the ground that the power exercised under Section 3 (1) of the Act being quasi judicial in nature, before that power could be exercised the objections filed against the draft proposal should have been disposed of by a reasoned and speaking order. In this connection reference was made to sub-section (2) of Section 4 of the Act which provides that the State Government shall, before issuing the notification, consider any objection or suggestion in writing which it receives from any person, in respect of the draft within the period stated. It was urged that since the law required the State Government to 'consider' the objections or suggestions in respect of the draft, the function of the State Government was quasi judicial in nature and that made it incumbent on the State Government to dispose of the objections and suggestions by a reasoned order. In this connection our attention was invited to the decisions in B. Cr Das Gupta and another v. Bijoyranjan Bakshit and others A. I. R. 1953 Cal. 212, Ghanahyan Das Gupta and others v. Board of High School and Intermediate Education, U. P. A. I. R. 1956 All. 539, and the judgment of Supreme Court arising out of the decision of this court in Board of High School and Intermediate Education, U. P. v. Ghamhyam Dass Gupta and others A. I. R. 1962 S. C. 1110. These cases related to the nature of the power exercised by the disciplinary body taking action against students charged with having used unfair means at the examination. It was held that the body deciding whether the candidates have been guilty of unfair means and what punishment should be inflicted, must not only act in good faith, but also fairly and reasonably and without violation of the principles of natural justice. The very nature of the power exercised made it clear that the authority had to act in a quasi judicial manner. It is well settled that the question whether a power in judicial or quasi judicial or whether it is administration has to be decided upon the language of the statute has to be decided upon the language of the statute, upon the nature of the power and the consequences of its exercise upon the rights of others and the exigencies of the situation. The Supreme Court in the case referred to above and in Dwarka Nath v. Income-Tax Officer A. I. R. 1966 S. C. 81, observed that the question whether the authority set up by the statute has the duty to act judicially or not can only be inferred from the express provisions of the statute in the first instance in each case and no on; circumstance alone will be determinative of the question. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred of the duty imposed on the authority and other indicia afford ed by the statute. Judged in the light of these observations it is difficult to accept the contention that while considering the objections and suggestions made to the draft proposal for extension of the municipal limits the State Government has to set in a judicial or quasi judicial manner. By the act of extending the municipal limits no rights of the residents of the area sought to be brought within the municipal limits are affected as such. It may be that the residents of the locality sought to be included within the municipal limits may be liable to taxes imposed by the Municipal Board but it cannot be said that the mere act of bringing in that area within the municipal limits directly affects the rights of the residents of the locality. See Tulsipur Sugar Co. Ltd. v. Notified Area Committee, Tulsipur, A. I. R. 1968 Alld. 258. The statute does not expressly lay down any objective criterion to be adopted in arriving at the decision. In our opinion the mere use of the word 'consider' does not have any bearing on the nature of the power exercised by the Stats Government under Section 3 of the Act which is purely administrative in character. Objections and suggestions under Section 4 (2) of the Act are invited as a means of acquiring information, of local opinion, and gleaning local information as to the likely impact of a proposed administrative decision. It provides the decision marked with a bitter fund of knowledge. The object is not to adjudicate upon the legal right of persons likely to be affected by the decision. In taking the policy decision to extend the municipal limits no function akin to adjudication is involved in the matter. All that the law requires is that the authority must apply its mind and consider the objections and suggestions received from interested persons but no duty is cast to act judicially in the sense of affording an op portunity of personal hearing or of passing a reasoned order on the objections and suggestions received against the proposal. It would be enough if the authority gives a fair consideration to such representations are made to it before arriving at the final decision. The nature and function of the State Government throughout remains administrative in character. In the present case the original record of the State Government was produced before us for perusal. The record clearly indicates that the representations were carefully looked into and considered before the final decision was taken. It was next contended that in the present case the power has been exer cised iii an arbitrary manner. In this connection it was urged that the peti tioner company provides all modern amenities in the area sought to be included within the municipal limits and there was absolutely no necessity of including this area within the municipal limits. In the counter affidavit filed on behalf of the Board it has been pointed out that the area included within the muni cipal limits under the impugned notification has a population of about 20,000. It is hardly at a distance of 300 yards from the old municipal limits apart from the factory area of the petitioner company, there are no street light, water supply or drainage in that area. The Board has to provide the daily amenities to that locality and that can be done only by a planned development of the locality after it is included in the municipal limits. The impugned notification was issued after considering all these matters in detail. The charge that the deci sion of the State Government is arbitrary is wholly baseless. It was then contended that the provisions of Sections 3 and 4 of the Act indicate that the notification under Section 3 should be made within a reason able time of the publication of the draft proposal under Section 4 (1) of the Act and since in the present case the notification under Section 3 was made after a lapse of nine years of the publication of the draft proposal, it was bad in law. Reliance in this connection was placed on Regina v. Secretary of State for the Home Department (1976 Q. R. 606 ). The principle laid down in that case has absolutely no bearing in the present case. There appears to be nothing in Sections 3 and 4 of the Act to indicate that the notification under Section 3 must be made within any time limit. The final decision may have been delayed due to various circumstances but no motive or bad faith could be attributed to the State Government and the final notification is not rendered invalid on that ground. In our opinion the petition has no merit. It is accordingly dismissed with costs. .