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Allahabad High Court · body

2022 DIGILAW 1936 (ALL)

Sonu v. State of U. P.

2022-12-07

JAYANT BANERJI, MANOJ KUMAR GUPTA

body2022
JUDGMENT : By the Court.-Heard Sri Brijesh Chandra Tripathi, learned counsel for the petitioners, learned Standing Counsel Sri Pradeep Kumar Tripathi for respondent Nos. 1 and 2 and Sri Virendra Singh Chauhan, learned counsel for respondent No. 3. 2. With consent of counsel for the parties, the petition is being disposed of finally at the admission stage. 3. The facts in brief are that petitioner No. 1 is elected Corporator from Ward No. 3, Nagar Palika Parishad, Baghapat and petitioner No. 2 also is an elected Corporator from Ward No. 19, Nagar Palika Parishad, Baghpat. They have challenged the notification issued on 21.9.2022 by respondent No. 1 in exercise of power under Article 243-Q of the Constitution read with sub-section (2) of Section 3 of the U.P. Municipalities Act, 1916 including the area specified in Schedule-1 of the said notification in smaller urban area of the Municipal Council, Baghpat and a declaration under clause (d) of the Article 243-P of the Constitution that the area specified in Schedule-2 would be territorial area of Municipal Council, Baghpat. 4. The facts and grounds on which the challenge has been made is noted in our order dated 15.11.2022, which is as follows : ''The contention of counsel for the petitioners is that a draft notification was issued on 26.8.2022 under Section 4 of the U.P. Municipalities Act, 1916, for inclusion of certain areas in the smaller urban area of Nagar Palika Parishad, Baghpat. Its Hindi version was published in ''Amar Ujala'' dated 27.8.2022 and thereby objections and suggestions were invited against the draft notification within fifteen days. On 4.9.2022, a corrigendum was published in the newspaper, stating that the draft notification in English provides only seven days time for filing objections/suggestions. However, on account of error, the Hindi version provided fifteen days time for filing objections/suggestions. Accordingly, the Hindi version was sought to be amended, so as to bring it in line with the notification issued in English. Learned counsel for the petitioners submitted that issuance of draft notification in Hindi in a local area, is the requirement of law. The petitioners on basis of the said notification filed objections against the draft notification on 6.9.2022. However, while issuing the final notification dated 21.9.2022, their objections have not been considered, apparently on the ground that the same was filed after seven days. The petitioners on basis of the said notification filed objections against the draft notification on 6.9.2022. However, while issuing the final notification dated 21.9.2022, their objections have not been considered, apparently on the ground that the same was filed after seven days. It is submitted that the corrigendum issued by the respondents deprives the petitioners of their valuable right to file objections against the draft notification and therefore, the final notification is rendered illegal. Sri Dilip Kesarwani, learned Additional Chief Standing Counsel, on instructions, admits that the objections and suggestions that were received within seven days alone were considered, meaning thereby that the objections filed by the petitioners were not considered. Prima facie, the exercise undertaken in this behalf appears to be against the spirit of the statutory provisions. We grant three days time to the Secretary, Urban Development, Government of U.P., Lucknow to file his personal affidavit in the matter on the above aspect. List as fresh on 21.11.2022. Sri Dilip Kesarwani, learned Additional Chief Standing Counsel, shall communicate the instant order to the concerned respondent for due compliance. The order has been passed in the presence of Sri Virendra Singh Chauhan, learned counsel for respondent No. 3.'' 5. In compliance, respondent No. 1 has filed his affidavit. 6. The State-respondents admit that the objections filed by the petitioners against the draft notification on 6.9.2022 had not been decided on the ground that the same was filed beyond prescribed period of seven days. 7. Section 3 of the U.P. Municipalities Act, 1916 reads as follows : ''3. Declaration etc. of transitional area and smaller urban area.(1) Any area specified by the Governor in a notification under clause (2) of Article 243-Q of the Constitution with such limits as are specified therein to be a transitional area or a smaller urban area, as the case may be. (2) The Governor may, by a subsequent notification under clause (2) of Article 243-Q of the Constitution, include or exclude any area in or from a transitional area or a smaller urban area referred to in sub-section (1), as the case may be. (2) The Governor may, by a subsequent notification under clause (2) of Article 243-Q of the Constitution, include or exclude any area in or from a transitional area or a smaller urban area referred to in sub-section (1), as the case may be. (3) The notifications referred to in sub-sections (1) and (2) shall be subject to the condition of the notification being issued after the previous publication required by Section 4 and notwithstanding anything in this section, no area which is, or is part of a, cantonment shall be declared to be a transitional area or a smaller urban area or be included therein under this section.'' 8. Under the scheme of the Act, before issuance of a notification under Section 3 of the Act, the mandate of law is that the Governor shall publish in the official gazette and in a paper approved by it for purposes of publication of public notices 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 of the proposed notification alongwith a notice stating that the draft will be taken into consideration on the expiry of the period as may be stated in the notice. The law also mandate that before issuing final notification, any objection or suggestion received in writing from any person in respect of the draft within the period stated shall be considered. 9. The publication of the draft notification in the Hindi newspaper is one of the mandatory requirement under Section 4 of the Act apart from other prescribed modes. 10. In the instant case, admittedly the Hindi version of the draft notification as initially published provided fifteen days time for filing objections. The Hindi version was published in 'Amar Ujala' on 27.8.2022 and thus, the time for filing objections and suggestions was upto 11.9.2022. However, on 4.9.2022, the respondents published a corrigendum notifying that only seven days time would be available for filing objections as is the period provided in the English version. The Hindi version was published in 'Amar Ujala' on 27.8.2022 and thus, the time for filing objections and suggestions was upto 11.9.2022. However, on 4.9.2022, the respondents published a corrigendum notifying that only seven days time would be available for filing objections as is the period provided in the English version. On the date the corrigendum was published, seven days time fixed for filing objection as per English version of the draft notification had already expired and thus, any person who had read the Hindi version of draft notification was completely prevented from filing objection. One of the objects of conferring right in the general public to file objections and make suggestions is to empower them in matter of self-Government. The objection could be in relation to the size of the area or the municipal services being provided or proposed to be provided and with regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as provided for in clause (2) of Article 243-Q of the Constitution. All these factors are to be taken into consideration while issuing notification under Section 243-Q. The respondents in the instant case have cut short the period during which general public was initially entitled to file objections. This had prevented the petitioner, and many like him, from filing objections against the draft notification. This in our opinion, goes to the root of the matter and renders the final notification illegal. 11. Learned Additional Chief Standing Counsel submits that the petitioners are not residents of the area which has been included in the smaller urban area and, therefore, they had no locus to file objections. 12. Under law, there is no prohibition for a person not living in the area which is sought to be included to file objection. Concededly, the petitioners are Corporators of the Nagar Palika Parishad, Baghpat and the impugned notification is in regard to the inclusion of various Gram Panchayats in the Municipal Council, Baghpat. As such, it cannot be said that they had no locus to file objection against the draft notification. 13. Learned Additional Chief Standing Counsel further submits that during pendency of the writ petition, the respondents have kept the final notification in abeyance and granted time to the petitioners to file objection. As such, it cannot be said that they had no locus to file objection against the draft notification. 13. Learned Additional Chief Standing Counsel further submits that during pendency of the writ petition, the respondents have kept the final notification in abeyance and granted time to the petitioners to file objection. It is urged that under the circumstances, the defect has been cured. 14. We are of the considered opinion that the aforesaid exercise will not cure the defect as post decisional hearing of objections is not contemplated under law. The objections were to be decided before finalizing the draft notification and not after the issuance of final notification. Moreover, we notice that the order by which the final notification was kept in abeyance is in form of office memorandum and it is not clear at all whether it was notified to general public so that others who are not before us but were deprived of right to file objection against the proposed notification had the opportunity to file the objections. 15. For all the reasons aforesaid, the impugned notification dated 21.9.2022, issued by respondent No. 1 is hereby quashed. 16. The writ petition stands allowed.