STATE OF KARNATAKA TR.SEC. HSG. & URB. & ANR.versusVASAVADATTA CEMENT & ANR.

                   [2015] 2 S.C.R. 399


STATE OF KARNATAKA TR.SEC. HSG. & URB. & ANR.              A

                            v
           VASAVADATTA CEMENT & ANR.

            (Civil Appeal No. 1918 of 2015)                B

                  FEBRUARY 16, 2015

     [SUDHANSU JYOTI MUKHOPADHAYA AND
             VIKRAMAJIT SEN, JJ.]                          c

     Karnataka Municipalities Act, 1961 - ss.9, 3 -
Procedure for Constitution, abolition, etc. of smaller
urban areas - Compliance of - Notification issued o
altering the existing limits of town municipality Council,
Sedam for inclusion of a Survey within the municipal
limits of town municipality, Sedam - Challenge to, by 1st
respondent on the ground that the notice should have
                                                            E
been posted in the area of the 1st respondent factory
which has mini township - Writ petition allowed by the
High Court holding that there was no proper compliance
of posting the Notification at the requisite places - On
appeal, held: All the persons, said to be affected by the F
notification were informed sufficiently by notice posted at
the conspicuous places - Apart from the land of 1st
respondent, land belonging to others were also shown in
the said notification - As regards two notifications of the G
same date, in the first notification it was directed to be
posted at four places, and in the other notification it was
to be posted at nine places which was prepared

                          399                              H
400      SUPREME COURT REPORTS                [2015] 2 S.C.R.


A subsequently - State 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 to
B be inquired into by the concerned authority - Thus, the
  State Government directed to inquire into the matter -
  Constitution of India, 1950 -Art. 2430

       Allowing the appeal, the Court
c     HELD: 1.1 Under Section 9 of the Karnataka
  Municipalities Act, 1961 the posting of the notice in
  conspicuous/convenient places is mandatory. The
  Office of the Collector, Panchayat Office, Office of
D Tehs.ildar, Office of municipality, railway station and
  bus stand, etc. of the local area are public places;
  which are expected to be visited by general public for
  one or the other reason. Those places can be safely
E expected to be conspicuous/convenient places for
  posting a notice about declaration of local area to be
  smaller urban area or altering the limit of any such
  smaller urban area. [Para 13, 14] [410-C,E-F]

F     1.2 The stand of the 1st respondent that the notice
  should have been posted within the township of 1s1
  respondent, would frustrate the objective of Section 9
  as other affected persons whose land would also
G 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 pub:ic place. In such case, every individual/affected
  persons would claim posting of such notice at their
H
  STATE OF KARNATAKA v. VASAVADATTA CEMENT 401


land which will amount to giving individual A
notice to all affected persons. [Para 15] [410-G-
H; 411-A]

     1.3 All the persons, who are said to be affected by
the notification, were informed sufficiently by notice      s
dated 3rd October, 1995 posted at the conspicuous
places. The submission that only the factory and
residential area of the 1st respondent was added by
notification dated 28th November, 1995 cannot be
accepted in view of the fact that apart from the land       c
of 1st respondent, land belonging to others were also
shown in the said notification dated 28th November,
1995. [Para 17, 18] [412-D-F]

     1.4 There are two notifications both dated 3rd
                                                            0
October, 1995 having same number. 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 1st notification     E
which appears to be original, it has been shown that
the notice to be posted at four places, panchayat
office, railway station, bus stand and notice board of
town municipal council. The other notification shows
that direction has been issued to post the said             F
notification at nine places, i.e. five more places apart
from the four places mentioned in the first notification.
The additional five places include the premises of the
first respondent. Prima facie it appears that the
notification dated 3rd October, 1995 containing nine        G
conspicuous places wherein it was to be notified,
signed in green ink by some officer was prepared
subsequently.[Para 19] [412-G-H; 413-A;C-E]

    1.5 The State has neither created any document H
402       SUPREME COURT REPORTS                [2015] 2 S.C.R.


A 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. The Chief
B Secretary, State of Karnataka is directed to hold an
  inquiry with regard to notification 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
C notifications. [Para 21] [413-G-H; 414-A, C-D]

      Collector (District Magistrate) Allahabad & Anr. vs. Raja
  Ram Jaiswal 1985 (3) SCR 995 :(1985) 3 SCC 1; Syed
  Hasan Rasul Numa & Ors. vs. Union of India & Ors. 1990
D (3) Suppl. SCR 165: (1991)1 SCC 401; J&K Housing
  Board and Anr. vs. Kunwar Sanjay Krishan Kaul & Ors.
  2011 (14) SCR 976: (2011) 10 sec 714; Klsum R.
  Nadiadwala vs. State of Maharashtra & Ors. (2012) 6 SCC
  348 - referred to.
E
                    Case Law Reference
        1985 (3) SCR 995            referred to.   Para 9

        1990 (3) Suppl. SCR 165 referred to        Para 9
F       2011 (14) SCR 976           referred to    Para 9
        (2012) 6 sec 348            referred to    Para 9
         CIVIL APPELLATE JURISDICTION: Civil Appeal No.
      1918 of 2015

         From the Judgment and Order dated 23.06.2010 of
         High Court of Karnataka, Circuit Bench at Gulbarga, in
          \ppeal No. 2999/2004 (LB-RES).

             'a Shenoy for the Appellants.
  STATE OF KARNATAKA v. VASAVADATTA CEMENT 403


    Jayant Bhushan, Brijesh Kalappa, Divya Nair, N.            A
Ganpathy, Ajay Bhargava, Vanita Bhargava, Arvind Ray,
Khaitan & Co. for the Respondents.

    The Judgment of the Court was delivered by

    SUDHANSU JYOTI MUKHOPADHAYA,J. 1. Delay                    B
condoned. Leave granted.

    2. This appeal has been preferred by the appellant-
State of Karnataka against the judgment dated 23'd June,
2010 passed by the High Court of Karnataka, Circuit Bench C
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           D
    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."                                                E

    3. The factual matrix of the case is as follows:

       The Government of Karnataka initially by draft
Notification No. HUD 14 TML 84 dated 191h June/22nd F
July, 1986 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 G
suggestions to the proposal from persons likely to be
affected therein. It was followed by Notification No.HUD
14 TMT 84 dated 151h April/2Q 1h May, 1987, issued by
Governor of Karnataka published in Karnataka Gazette
                                                                H
404       SUPREME COURT REPORTS                [2015] 2 S.C.R.


A dated 25 1h May, 1987 exercising the power conferred by
  sub-Section (1) of Section 4 of Karnataka Municipalities
  Act, 1961 (hereinafter referred 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
B 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 28 1h November, 1995, it
C 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
D Section 9 of the Act, the Governor of Karnataka specified        ..
  the smaller urban area in Schedule 'A and the limits of
  which are specified in Schedule 'B' and further specified
  it to be called 'Town Municipal Council Area of Sedam
  having regard to:
E
       1) the population of the area specified in Schedule-
       A being not less than twenty thousand but less
       than fifty thousand.

F      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
G
       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
H
  STATE OF KARNATAKA v. VASAVADATTA CEMENT 405
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]

    the total employment.                                      A

     4. The first respondent filed another Writ Petition No.
 14554/96 before the High Court of Karnataka, Bangalore
challenging the said notification and the same was
summarily dismissed on 191h August, 1997 observing that B
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 201h August, 2001 and C
the order dated 191h August, 1997 passed in the writ petition
No. 14554/1996 was set aside and the said writ petition
was restored. However, after hearing the parties, the
learned Single Judge on 241h May, 2004 dismissed the
writ petition on the ground that the action of inclusion of an D
area to the limits of an existing Town Municipal Limits is
essentially a conditional legislation and hence judicial
intervention is not warranted.

     5. Against the said order, the respondent preferred the   E
writ appeal No. 2999/2004 which was allowed by the
Division Bench by impugned judgment dated 23'd June,
2010.

     6. Learned counsel appearing on behalf of the appellant F
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. The
third appellant under the directions of the first appellant
had posted the notices announcing the inclusion of the G
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.
                                                             H
406        SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A       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
 B 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;
 c
            (1) Panchayat Office, Old Bazar, Sedam

            (2) Railway Statio, Sedam

            (3) Bus Stand, Sedam and
 D
            (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.
 E
      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
F municipal council also to post a copy of the proclamation in
  a conspicuous place, meaning thereby in the inhabited area
  sought to be included or excluded from the smaller urban
  area. The case of the 1st respondent is that it has a township
G 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.

 H        9. Learned counsel relied upon the following judgments
  STATE OF KARNATAKA v. VASAVADATTA CEMENT 407
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]

for the proposition that the proclamation has to be posted in the A
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.
                                                                    B
   (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.                                        c
   (c) (2011) 10 SCC 714, J&K Housing Board and Anr. v s .
   Kunwar Sanjay Krishan Kaul & Ors.

   (d) (2012) 6 SCC 348, Klsum R.Nadiadwala vs. State of
   Maharashtra & Ors.                                    D

    10. We have heard the rival contentions raised by the parties
and perused the records.

    11. For convenient reference, Section 9 of Karnataka E
Municipalities Act is quoted below:

       "9.   Procedure for Constitution, abolition, etc.
    of smaller urban areas:

     Not less than thirty days before the publication of            F
    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
                                                                    G
    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
                                                                    H
408      SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A       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
 B      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
C       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
 D      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."
 E
          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
F local area shall cease to be a smaller urban area. Firstly, a
  proclamation announcing the object/proposal of 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
G 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.

 H        Section 9 further stipulates that whenever it is
  STATE OF KARNATAKA v. VASAVADATTA CEMENT 409
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]

proposed to add or exclude from a smaller urban area any A
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.          B

     12. Section 9 of the Act has to be read in the light of
Article 2430 of the Constitution of India which is as under:

            "243Q. Constitution of Municipalities:             c
  (1) There shall be constituted in every State,-

  (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;                  D

  (b) a Municipal Council for a smaller urban area;
    and

  (c) A municipal Corporation for a larger urban area          E
     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
                                                               F
    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.                      G
  (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
                                                               H
410        SUPREME COURT REPORTS                [2015] 2 S.C.R.


A        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."

 B        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.

c            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 purpose of alteration of
      the limits of the smaller urban area would claim that
o     such notice must be posted in his land.

      14. The Office of the Collector, Panchayat Office,
  Office of Tehsildar, Office of municipality, railway
  station and bus stand, etc. of the local area are
E public places; which are expected to be visited by
  general public for one or the other reason. Those
  places can be safely expected to be conspicuous/
  convenient places for posting a notice about
  declaration of local area to be smaller urban area or
F altering the limit of any such smaller urban area as
  is done in the case of land acquisition.

      15. If the stand of the 1s1 respondent is accepted
  that the notice should have been posted within the
G township of 1st respondent, then 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
H boundaries of the 1st respondent's factory, being not
 STATE OF KARNATAKA v. VASAVADATTA CEMENT 411
     [SUDHANSU JYOTI MUKHOPADHAYA, J.]

a public place. In such case, every individual/affected· A
persons will claim posting of such notice at their land
which will amount to giving individual notice to all
affected persons.
16. Notification dated 3rd October, 1995 was posted at
four conspicuous places, the English version of which B
reads as follows:
   "No.TMC;95-96                             Office     of
   the TMC
                                Sedam,            dated      c
    3.10.1995
                    NOTIFICATION
      Sub.: Publication of Govt. Circular
      Ref.: Govt. Circular, bearing No.:NE:407:MLR:95, D
      Bangalore, Dated 26.09.1995


       With reference to the above subject, the
   public of the Town Municipal area are informed            E
   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         F
   30 days. The public area hereby informed of the
   same by this notification.
                                                Sd.,
                                      Chief Officer          G
                                            SEDAM"

     It is directed that the copy of the Notification
  should be posted at the following places:
                                                             H
412     SUPREME COURT REPORTS              [2015] 2 S.C.R.


A       i) Panchayat Office, Old Bazar, Sedam

        ii) Railway Station, Sedam

        iii)Bus Stand, Sedam

 B      iv) Notice Board of Town Municipal Council,
           Sedam."

      17. Learned counsel for the 1st respondent
  accepted     that the Panchayat Office of the 1st
C respondent 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
D by notice dated 3rd 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
E 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 28th
F 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
G 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 1st notification
  dated 3rd October, 1995, which appears to be original,
H
  STATE OF KARNATAKA v. VASAVADATTA CEMENT 413
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]

it has been shown that the notice to be posted at A
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 B
of it apart from thumb impressions, signatures also
have been obtained from different individuals to show
that the notification was posted in presence of those
witnesses.
                                                      c
       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 mentioned in the first
notification. The additional five places include the D
premises of the first respondent. The second
notification is signed in green ink by some other
officer. Prima facie it appears that the notification
dated 3rd October, 1995 containing nine conspicuous
places wherein it was to be notified, signed in green E
ink by some officer has been prepared subsequently.

    20. Learned counsel appearing on behalf of the 1s1
respondent requested the Court to initiate contempt
proceedings against the concerned official and to F
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 G
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
                                                      H
414         SUPREME COURT REPORTS           [2015] 2 S.C.R.


A 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 matter and, if so necessary, file an FIR against the
  alleged officers who might have created the document
B 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
C 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
D 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.

 E       22. The appeal is allowed with the aforesaid
      observations and directions.

      Nidhi Jain                              Appeals allowed.

 F