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2010 DIGILAW 734 (ALL)

NAGAR PALIKA PARISHAD v. STATE OF U. P.

2010-02-26

V.M.SAHAI, Y.C.GUPTA

body2010
JUDGMENT By the Court.—We have heard Sri H.R. Mishra, learned senior counsel assisted by Sri Rahul Verma for the petitioners, Sri Satish Chaturvedi, Additional Advocate General appearing for the respondents No. 1 to 3 and Sri U.N. Sharma, learned senior counsel assisted by Sri Chandan Sharma and Umesh Dwivedi, learned counsel appearing on behalf of the respondent No. 4, Sri T.P. Singh learned senior counsel assisted by Sri R.K.S. Nishith and Sri Prakash Chandra Srivastava, learned counsel appearing on behalf of the Nagar Nigam, Saharanpur. 2. By means of this writ petition the petitioners have prayed to quash the notifications dated 1.10.2009, Annexure-1 to the writ petition whereby respondent No. 1, State Government has declared and constituted larger Municipality (Nagar Nigam) in place of Municipal Council, Saharanpur. It is also prayed that the respondents be also directed not to interfere in the functioning of the petitioners till completion of the constitutional and statutory term of five years from the date of the last election of petitioner No. 1. 3. The facts of the matter lie in a very short compass. Prior to the impugned notification the urban area of Saharanpur was being governed by an elected body called Municipal Council under the provisions of U.P. Municipalities Act, 1916. Some time in the month of September 2009, 25.9.2009 to be exact, the State Government by a notification included the area of 32 villages, having achieved urbanization, in the existing area of Municipal Council, Saharanpur. On 1.10.2009 the impugned notification No. 2176/9-7-09-53 J/1998 was issued by the State Government. By this notification Nagar Nigam, Saharanpur was established for the larger urban area of city of Saharanapur. This exercise of power was made basically under Article 243 Q of the Constitution of India which provides for specification of larger urban area. By another notification of the same date issued under Section 8-AA (1) (b) of the U.P. Municipalities Act, 1959 (U.P. Act No. 2 of 1959), all powers, functions and duties of Nagar Nigam (Municipal Corporation) during the transitional period till the constitution of Nagar Nigam were vested in the District Magistrate, Saharanpur as Administrator. By reasons of both the aforesaid notifications the Municipal Council, Saharanpur was rendered non-existent. The petitioners Sri Imran Masood and Sri Man Mohan Jadeja are the erstwhile Chairman and Members of Municipal Council, Saharanpur, respondent No. 1. 4. By reasons of both the aforesaid notifications the Municipal Council, Saharanpur was rendered non-existent. The petitioners Sri Imran Masood and Sri Man Mohan Jadeja are the erstwhile Chairman and Members of Municipal Council, Saharanpur, respondent No. 1. 4. The impugned notification is challenged by the petitioners firstly, on the ground that extension of urban area of Municipal Council, Saharanpur was not done according to law. It is argued that the extension of area of Nagar Palika Parishad, Saharanpur was hurriedly undertaken without issuing and publishing preliminary notification as provided under Section 4 (1) of the U.P. Municipalities Act, 1916, whereby objections/suggestions are to be invited, therefore, inclusion of the area of 32 villages by notification dated 25.9.2009 issued under Section 3 (2) of the Municipalities Act, 1916 was illegal and arbitrary and as a consequence the subsequent notification dated 1.10.2009 declaring larger Municipality is also illegal and unconstitutional. 5. The next submission of the writ petitioners is based upon the provisions of Article 243U of the Constitution of India. Sub-clause (1) of Article 243 (U) reads as under : “(1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer : Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.” 6. It is contended that under Article 243 U of the Constitution of India, without sooner dissolved, the Municipality is Constitutionally entitled to continue for five years. Since the Municipality is so entitled, its elected Members also have the right to their term of office for five years. It is argued that this period of five years is mandatory in nature but in view of the fact that all functions and powers of the Municipality have been vested in Administrator/District Magistrate, Saharanpur under Section 8 AA of U.P. Act No. 2 of 1959, the Municipal Council Saharanpur for all practical purposes stands dissolved since it can exercise none of the powers of smaller Municipality whereas its term is yet to expire in the year 2011. It is further urged that there are certain preconditions for exercise of powers under Section 8-AA. It is further urged that there are certain preconditions for exercise of powers under Section 8-AA. The State Government has to form an opinion and the same is to be stated in the order of appointment of administrator that Government thought it expedient to fill up the gap before final constitution of the larger municipality, to have the function of municipality performed by administrator rather than elected members of the Municipal Council. It is submitted that the appointment of administrator offends both the words of the Constitution and the spirit of it which grants positively the right of self Government and local Government. Learned counsel for the petitioners submits that the action of the State Government, respondent No. 1 and the Notifications dated 1.10.2009 constituting larger Municipality in place of smaller Municipality and appointing Administrator are malafide, illegal, against the spirit of Constitution and therefore is liable to be quashed. 7. In contra, it has been argued on behalf of the respondents that the extension of area of Municipal Council, Saharanpur was undertaken in accordance with law. Since by the Notification a different and better Municipality has been notified and its all powers, functions and duties, till its final constitution, have been vested in the Administrator/District Magistrate, Saharanpur, the petitioners have lost their right to continue in office. The petition is devoid of any merits and is liable to be dismissed. 8. We have considered the submissions of learned counsel for both the parties. 9. As regards first point, we would like to express that basically ‘a transitional area’, ‘a smaller urban area’ and ‘a larger urban area’ are specified under Article 243Q of the Constitution of India. It also declares that for ‘a transitional area’ there shall be Nagar Panchayat by whatever name it is called, for ‘a smaller urban area’ a Municipal Council and for ‘a larger urban area’ a Municipal Corporation. Any inclusion or exclusion in or from the aforesaid areas, is also to be notified under the same Article 243 Q of the Constitution of India. 10. Section 3 of the U.P. Municipalities Act, 1916 which deals with the functions, powers and duties of the Municipal Council, provides that any area can be included in the existing area of Municipal Council by a subsequent notification under Article 243Q but the same shall be subject to the formalities to be observed under Section 4 of the Act. 10. Section 3 of the U.P. Municipalities Act, 1916 which deals with the functions, powers and duties of the Municipal Council, provides that any area can be included in the existing area of Municipal Council by a subsequent notification under Article 243Q but the same shall be subject to the formalities to be observed under Section 4 of the Act. Section 4 of the Act is as under : “4. Preliminary procedure to issue notification.—(1) Before the issue of a notification referred to in Section 3, the Governor shall publish in the Official Gazette and in a paper approved by it for purposes of publication of public notices, published in the district or, if there is no such paper in the district, in the division in which the local area covered by the notification is situate and cause 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 a draft in Hindi or the proposed notification along with a notice stating that the draft will be taken into consideration on the expiry of the period as may be stated in the notice. (2). The Governor 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.” 11. Thus, Section 4 provides that before inclusion of any area, a draft notification inviting objections/suggestions is to be published in the Official Gazette and in a newspaper in the circulation in the effected area. It is after consideration of objections/suggestions, if any, that the final notification giving effect to the inclusion of the area is to be issued. The grievance of the petitioners is that no such publication before the inclusion of area was made, therefore, notification dated 25.9.2009 is against the spirit of law and is therefore illegal and consequently the notification dated 1.10.2009 declaring the constitution of larger municipality i.e. Municipal Corporation, Saharanpur is also bad in law. 12. As regards this aspect of the matter, the learned Additional Advocate General Sri Satish Chaturvedi has produced the entire record of the inclusion of area in question as well as conversion of Municipal Council into Municipal Corporation, Saharanpur. 12. As regards this aspect of the matter, the learned Additional Advocate General Sri Satish Chaturvedi has produced the entire record of the inclusion of area in question as well as conversion of Municipal Council into Municipal Corporation, Saharanpur. We have perused the record and find that the preliminary draft notification as provided under Section 4 of the Municipalities Act, 1916 was published in Official Gazette on 31.7.2009. Objections/suggestions were invited by 19.8.2009. It is also revealed that other necessary formalities at district level as required under Section 4 of the Act were undertaken by the District Magistrate. It is further revealed from the record that in pursuance of the draft notification certain objections/suggestions were received. This included the representation dated 17.8.2009 of petitioner Sri Imran Masood also. 13. Before issuing the final notification dated 25.9.2009 extending the limits of the Municipal Council, all the representations were considered on 10.9.2009. It has been urged on behalf of petitioners that no reasons were assigned in the order dated 10.9.2009 while deciding/rejecting the objections invited under Section 4 of the Act. We gave our earnest consideration to the submission of learned counsel of petitioners. It shall be worth mentioning that the petitioners were well aware with all the developments regarding the matter in question and as soon as the proposal of extension of area of smaller municipality was sent to State Government by respondents No. 2 and 3, petitioner Sri Imran Masood immediately thereafter on 6.7.2009 sent a representation to the State Government. By the order of this Court in writ petition No. 37845 of 2009, representation dated 6.7.2009 was considered and decided by respondent No. 1 State Government vide its order dated 2.9.2009 that is to say before issuing of the final notification dated 25.9.2009 extending the area of Municipal Council, Saharanpur. The order dated 2.9.2009 has been annexed to the writ petition by the petitioner himself as Annexure-18. From the perusal of record we find that the representations/objections dated 6.7.2009 and 17.8.2009 were on the same line by the petitioner and representation dated 6.7.2009 which was decided by the order dated 2.9.2009 was dealt with in detail and reasons for not accepting the objections of the petitioners were detailed in the order. From the perusal of record we find that the representations/objections dated 6.7.2009 and 17.8.2009 were on the same line by the petitioner and representation dated 6.7.2009 which was decided by the order dated 2.9.2009 was dealt with in detail and reasons for not accepting the objections of the petitioners were detailed in the order. Since representations/objections against the extension of area were dealt with in detail while deciding representation dated 6.7.2009 on the same point, in our view there appears no force in the submission that no reasons were there in the order dated 10.9.2009 deciding the objection of petitioner dated 17.8.2009.Moreover both the orders dated 2.9.2009 and 10.9.2009 have also not been challenged by the petitioners in the writ petition. 14. In view of the above, we find that all necessary requirements under Sections 3 and 4 of the Act were observed by the respondents, therefore, we do not find any illegality in the procedure to be adopted by the State Government for the extension of area of Municipal Council, Saharanpur. The submission of the learned counsel for the petitioners in this regard that the extension of area of Municipal Council, Saharanpur was arbitrary is devoid of any substance and merits. 15. Coming to the next submission on behalf of the petitioners that an elected Member of the Municipality has a constitutional right to continue in office for 5 years, it shall be enough to say that normally a Municipality and its elected members are to continue for 5 years but the term of 5 years is not an unalterable term. Article 243U itself suggests that a Municipality may be dissolved sooner even before the completion of its 5 years term though subject to all just and lawful exceptions. 16. Apart from what is said above, Article 243U of the Constitution of India suggests and means the duration of the same type of Municipality coming to an end and the same type of successor Municipality taking over as a consequence of term of the previous Municipality coming to an end either prior to the period of 5 years or at the end of 5 years. In other words Article 243U cannot be pressed into service in a case where the area of one description is converted into an area of another description and one description of Municipality is ceased by constituting another Municipality of a better description, that is to say that where the dissolution is fait accompli and the Municipality cannot be revived as it was before, the same cannot be termed a dissolution as envisaged under Article 243U and in such an event the provisions of Article 243U are not at all violated if an Administrator is appointed under Section 8-AA. The relevant part of Section 8-AA is as under : “ 8-AA. Temporary provisions for the constitution of Corporation and administration of area notified as City.—(1) Where any area has been specified to be a larger urban area under Clause (2) of Article 243Q of the Constitution and the State Government is of opinion that until the due constitution for such area under the Constitution, it is expedient so to do, then the State Government may, notwithstanding anything contained in this Act or any other law for the time being in force, by order direct that— (a)................ (b) all powers, functions and duties of the Corporation, its Mayor, Deputy Mayor, Wards Committee, Executive Committee, Development Committee and other Committees established under Clause (e) of Section 5 and of the Municipal Commissioner shall as from the specified date be vested in and be exercised, performed and discharged by an officer appointed in that behalf by the State Government (hereinafter referred to as the Administrator) and the Administrator shall be deemed in law to be the Corporation, the Mayor, the Deputy Mayor, Wards Committee, Executive Committee, Development Committee or other Committees, or the Municipal Commissioner as the occasion may require.” 17. It may be taken that while appointing the Administrator, the State Government may mention in its order the expediency of appointing the Administrator but to our mind it may not always find place in the order and the same can be gathered from the facts and circumstances of each case. It may be taken that while appointing the Administrator, the State Government may mention in its order the expediency of appointing the Administrator but to our mind it may not always find place in the order and the same can be gathered from the facts and circumstances of each case. In this regard, we find sufficient strength in the submission of the learned counsel for the respondents that as a matter of Constitutional Policy, the constitution of the larger Municipality being necessary at the earliest and since formation of a larger Municipality is not merely paper work done on the desk, a lot of preparation is needed, Wards which are different from the previous one are to be delineated and fresh voter list are to be prepared and the Municipal Council being of the view by its resolution dated 30.5.2009 that formation of the larger Municipality should not take place before the expiry of the term of the smaller Municipality in the year 2011, it is conceivable that if Councillors of smaller wards are still functioning and exercising their powers, the delineation of new Wards of the larger Municipality would not be undertaken with that smoothness and lack of obstructions as it could be undertaken under an Administrator who has not been elected and who is not looking forward for 5 years of office in the Municipality, therefore, there was no impropriety in the appointment of Administrator and submission of the petitioner that vesting of functions and duties of the Municipal Corporation to be performed by Administrator in place of elected Members of Municipal Council is illegal, does not inspire our confidence nor the absence of mentioning the expediency of appointment of Administrator goes too far so as to cancel Notification appointing the Administrator. 18. In view of the above in our opinion, neither the extension of area of Municipal Council, Saharanpur was illegal or arbitrary nor the Notification dated 1.10.2009 constituting larger Municipality in place of Municipal Council and appointing the Administrator was illegal and unconstitutional. The up-shot of the above discussion is that the writ petition is without any merits and therefore is liable to be dismissed and is accordingly dismissed. ————