SRIKRISHNA JAGRAM Vs. STATE OF M.P.

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution of India, the Petitioner Dr. Srikrishna Rajoria, a medical practitioner residing in the town of Harsud and a voter and tax -payer of Harsud Notified Area, seeks a writ of certiorari to quash the State Government Notification No. 590 -XVIII -11 -77, dated Bhopal the 30th September 1977 (Annexure C) by which the State Government has constituted a Notified Area Committee consisting of nominated -members only, in exercise of the powers conferred by the Second Proviso to Clause (d) of Sub -section (1) of Section 341 of the Madhya Pradesh Municipalities Act, 1961 (No. 37 of 1961). In the year 1971, the State Government, by a notification issued under Section 340 of the Madhya Pradesh Municipalities Act, 1961 (here -in -after referred to as 'the Act') declared as 'Notified Area, 'the area which earlier existed as a Gram Panchayat at Harsud. At the same time, the State Government, by another notification dated 3rd November 1971 constituted a Notified Area Committee consisting only of nominated members in exercise of the powers conferred by the Second Proviso to Clause (d) of Sub -section (1) of Section 341 of the Act. That notification was challenged in this Court by a similar writ petition which was ldan Dass v. State of M.P. and Ors. M.P. No. 905 of 1973 decided on 1.5.1974. The challenge in that petition was on the ground that the impugned notification did not state any reasons for constituting the committee of nominated members only, on account of which it was invalid. The Division Bench dismissed that writ petition taking the view that the State Government had shown from the material contained in the office file that reasons for such an action were contained in the file. Some of these reasons were also stated by the Division Bench in paragraph 4 of its order which were, inter alia, that some interim arrangement had to be made tilt holding of elections was feasible and that the action was taken on the basis of the report of the Collector sent in this behalf. Taking the view that the requisite reasons existed when the impugned notification was issued and that the reasons were stated in writing in the office file perused by the Division Bench, that notification was found not to be defective. It was also stated by the Division Bench that inordinate unexplained delay in filing that petition was a further ground to refuse relief to the Petitioner. The Division Bench, at the end of its order also observed as follows:

(2.) WE may, however, observe that the nominated body, which is not the normal rule, has continued for almost 21 years, a very long time for an emergency to continue; and the Government, we hope, shall examine the expediency of its further continuance in preference to an elected body. Notwithstanding the above facts, the Harsud notified Area has continued to have till now only a committee consisting of all nominated members and the first election has yet to be held. The State Government, by the next Notification No. 819 -XVIII -II -75, dated Bhopal the 22nd November 1975 (Annexure A) constituted a fresh committee, once again consisting only of nominated members, in exercise of the power conferred by the Second Proviso to Clause (d) of Sub -section (1) of Section 341 of the Act. This committee continued till it was replaced by a committee of single person, viz., the Tahsildar of tahsil Harsud, district Khandwa, in exercise of the power conferred by Section 341(1)(d) by the notification dated 8 -9 -1977 (Annexure B). This arrangement was for a very short period and then the impugned Notifica No. 550 -XVIII -II -77 dated 30 -9 -1977 (Annexure -C) was issued by the State Government, once again constituting a committee only of nominated members in exercise of the power conferred by the Second Proviso to Clause (d) of Sub -section (1) of Section 341 of the Act. It is this notification which has been challenged by this petition filed on 23 -11 -1977. In the impugned notification dated 30 -9 -1977 (Annexure -C) admittedly there is no statement of the reasons which led to the Constitution of a committee consisting only of nominated members in exercise of the extraordinary power conferred by the Second Proviso to Clause (d) of Sub -section (1) of Section 341 of the Act. It only states the conclusion that "the circumstances of the Harsud Notified Area are such that it would be in the public interest to appoint a committee of persons consisting of nominated members only." Learned Counsel for the Petitioner contends that for the valid exercise of the extraordinary power conferred on the State Government by the Second Proviso to Clause (d) of Sub -section (1) of Section 341 of the Act, compliance with the mandatory requirement of "stating the reasons therefor" in the order, has to be made. It is urged that this mandatory requirement not having been complied with, the impugned notification dated 30 -9 -1977 (Annexure C) must be quashed.

(3.) IT is not the case of the State Government that the reasons which led to the issue of the impugned notification, Annexure -C dated 30 -9 -1977 are stated in writing even in the office file although they are not in the impugned notification. At the hearing of the petition, we specifically asked the learned Government Advocate to tell us if the requisite reasons, which led to the exercise of this power and issue of the notification, had even been stated in the office file or elsewhere. The learned Government Advocate was unable to show us the requisite reasons in writing anywhere and he was unable to even say that such a writing was in existence with (be State Government in any record. The main ground on which the validity of a similar notification dated 3 -11 -1971 was upheld by this Court in Idan Doss's case (supra), as earlier stated, is, therefore, not available in the present case. Since the existence of reasons in writing anywhere in the record is not set up on behalf of the State Government, it is also not necessary for us in the present case to express our opinion on the question whether the "stating of reasons" in any record and not in the notification itself, to support the exercise of this power, amounts to compliance of this requirement, which was the view taken in Idan Dass's case (supra). We are concerned only with the question whether the impugned notification can be upheld when it was issued without "stating the reasons" either in the notification itself or anywhere else in the record. Having heard Shri C.L. Kotecha, learned Counsel for the Petitioner, the learned Government Advocate Shri S.L. Saxena for the Respondent No. 1 and Shri P.C. Pathak counsel for the Respondents 3 to 13 the nominated members of the committee we are satisfied that this petition must be allowed and the impugned notification dated 30 -9 -1977 (Annexure C) must be quashed. The relevant portion of Section 341 of the Act is as under: