Nagar Panchayat Jhunsi Prayagraj ... vs State Of U.P. And 3 Others
2021 Latest Caselaw 3164 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on : 5.2.2021
 
Delivered on : 5.3.2021 
 
Court No. - 29
 
Case :- WRIT - C No. - 8226 of 2020
 
Petitioner :- Nagar Panchayat Jhunsi Prayagraj And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- R.K. Mishra,Shashi Nandan (Sr. Adv.),Udayan Nandan
 
Counsel for Respondent :- C.S.C.,Suresh C. Dwivedi,Vibhu Rai
 
and 
 
Case :- WRIT - C No. - 3522 of 2020 
 

 
Petitioner :- All India Panchayat Parishad And Another 
 
Respondent :- State Of U.P. And 7 Others 
 
Counsel for Petitioner :- Hardev Singh,Shri Radha Kant Ojha (Sr. Advt ) 
 
Counsel for Respondent :- C.S.C.,Sunil Dutt Kautilya,Vibhu Rai 
 

 
Hon'ble Pankaj Naqvi,J.

Hon'ble Piyush Agrawal,J.

The issues involved in both the petitions are similar, hence are being disposed of by a common judgment. CMWP No. 8226 of 2020 is treated as a leading petition.

1. The petitioner no.1 in CMWP No. 8226 of 2020 is Nagar Panchayat Jhunsi, Prayagraj through its Chairman and petitioner no.2 is the Chairman in her individual capacity. A challenge is laid by them to the notification dated 31.12.2019 issued by the State Government merging Nagar Panchayat, Jhunsi, Prayagraj into Nagar Nigam, Prayagraj and for mandamus declaring paragraphs- 3 and 5 of the Government Order dated 3.4.2018 as unconstitutional with a further prayer to not to interfere in the working of petitioner no.2 as Chairman Nagar Panchayat, Jhunsi and finally inviting the objections of the Board of Nagar Panchayat, Jhunsi for inclusion of Nagar Panchayat, Jhunsi in Nagar Nigam Prayagraj.

The petitioners in the connected petition are All India Panchayat Parishad, a registered society, which claims to have branches, all over India and the District President of District Prayagraj, who also claims himself to be as elected Pradhan of Gram Panchayat Tendui, Block- Bahadurpur, Tehsil- Phulpur, Prayagraj. They too have challenged the notification dated 31.12.2019 including certain villages/ Gram Panchayats of Block Bahadurpur into Nagar Nigam Prayagraj.

2. Heard Sri Shashi Nandan, learned Senior Counsel assisted by Shri Udayan Nandan, Sri R.K. Ojha, learned Senior Counsel assisted by Sri Hardev Singh for the petitioners in the respective petitions and Sri Anoop Trivedi, learned Senior Advocate, assisted by Sri Vibhu Rai for Nagar Nigam Prayagraj and Ms. Shubhra Singh, learned Standing Counsel for the State.

3. Shri Shashi Nandan, learned Senior Counsel assisted by Shri Udayan Nandan for the petitioner in the leading petition broadly raised following contentions:-

i) The impugned notification is issued in purported exercise of the powers conferred under Article 243Q of the Constitution of India sought to be exercised on the recommendation of the Commissioner under the Government Order dated 3.4.2018, wherein in paragraph-4 thereof certain conditions have been mentioned for proposed merger and in paragraph-5 thereof it is provided that either such a proposal must emerge from the resolution of the Board, i.e, of Nagar Nigam Prayagraj or the report of the Commissioner but in the absence of any proposal of the Board of Nagar Nigam Prayagraj, conferment of alternate power on the Commissioner to forward its report is in blatant violation of the spirit of 74th Constitutional Amendment.

ii) Learned Senior Counsel for the petitioner while placing the provisions of UP Municipal Corporation Act, 1959 (short "the Act of 1959") submitted that in the entire scheme, no power is conferred on the Commissioner but for clause (56) of Section 2 which has no relevance to the present case. It is thus submitted that the recommendation of the Commissioner for merger of Nagar Panchayat, Jhunsi in Nagar Nigam Prayagraj is dehors the law rendering the impugned notification invalid.

iii) Article 243U of the Constitution read with Section 10-A of the U.P. Municipalities Act, 1916 (short "the Act of 1916") confers security of tenure of a municipality for a period of 5 years from the date appointed for its meeting, which in the present case was 27.12.2017, which can only be brought to an end prior to expiry of the said period only in the event of a dissolution but after a reasonable opportunity of being heard not resorted in the present case.

iv) The provisions of Section 4 of the Act of 1916 relating to inviting objections prior to inclusion of a Gram Panchayat into Nagar Panchayat should be read down in case of inclusion of Nagar Panchayat in Nagar Nigam.

4. Shri R.K. Ojha, learned Senior Counsel assisted by Shri Hardev Singh for the petitioners in the connected petition while adopting the submission of Shri Shashi Nandan also submitted that given the Constitutional framework, post 74th Amendment, a Gram Panchayat cannot straight away be merged with a larger urban area called municipal corporation. It was also contended that with above merger the inhabitants of the Gram Panchayat, recipients of various social benefit schemes of Government would be deprived of their rights to receive benefits and that too without any notice.

5. Sri Anoop Trivedi, the learned Senior Counsel assisted by Sri Vibhu Rai for Nagar Nigam, Prayagraj and Ms. Shubhra Singh, the learned Standing Counsel, while assiduously controverting the above submissions contended that the impugned notification does not violate the spirit of 74th Amendment in any manner, Commissioner being the delegate of the State Government is empowered to make his recommendation for merger which is based on prescribed parameters, existence of which is not disputed. He further submitted that impugned notification does not have the effect of dissolution as it presupposes persistent default and incompetency on the part of the municipality in discharging its functions, which is not the case. The provisions of Section 4 of the Act of 1916 according to Sri Trivedi cannot be read down. He further submitted that under law there is no prohibition in including an area of Gram Panchayat into Nagar Nigam as long as prescribed parameters are fulfilled and in so far the contention of withdrawal of beneficial scheme is concerned, same is of no consequence as inhabitants of merging bodies would be entitled to the beneficial scheme operating in urban area.

6. The Constitution (74th Amendment) brought about a transcendental change in the Constitution of the municipalities by providing a 3 tier hierarchical structure of local bodies so as to provide democratic decentralization and greater accountability between citizens and the State as being effective entities of self-governance.

7. Article 243-Q of the Constitution is quoted hereunder:

"243Q. Constitution of Municipalities

(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 area to an urban area

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

(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part: Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of tile 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

(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 therein, the revenue generated for local administration, the percentage of employment in non agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part"

Article 243-Q provides for constitution of 3 tier municipalities in every State with a Nagar Panchayat for a transitional area, i.e, an area in transition from a rural area to urban area; a municipal council for smaller urban area and a municipal corporation for larger urban area in accordance with Part-IX-A.

8. Article 243-U of the Constitution relates to duration of municipalities, which reads as under:

"243-U. Duration of Municipalities, etc.-- (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.

(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).

(3) An election to constitute a Municipality shall be completed,-

(a) before the expiry of its duration specified in clause (1);

(b) before the expiration of a period of six months from the date of its dissolution:

Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period.

(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under clause (1) had it not been so dissolved."

Thus every municipality is entitled to continue for a period of 5 years from the date appointed for its first meeting and no longer. However, the proviso provides a municipality can be subjected to dissolution before expiry of above period provided an opportunity is given to show cause against proposed dissolution. Such power is exercised only when there is a persistent default or any incompetency on the part of the Municipality to discharge its functions, but after notice.

9. The provisions contained in Part-IXA of the Constitution are also incorporated by way of amendments in the Act of 1916 and that of 1959 respectively so as to bring them at par with 74th Amendment. Section 3 of the Act of 1916 relates to declaration etc, of transitional area and smaller urban area while Section 3-A relates to constitution of municipality for every transitional area and smaller urban area as provided under Article 243-Q of the Constitution. Section 10-A of the Act of 1916 relates to the term of municipality for a period of 5 years with effect from the date appointed for its Ist meeting and no longer. Similarly, Section 3 of the Act of 1959 provides for declaration of larger urban area, i.e, Municipal Corporation as provided under Article 243Q of the Constitution, while Section 8 of the Act of 1959 provides for the duration of term of a Municipal Corporation, which too is at par with Article 243U of the Constitution.

10. The entire thrust of the 74th Amendment is on making municipalities which includes a 3 tier structure at the urban level, i.e, a Nagar Panchayat, a municipal council and a municipal corporation as effective institutions of local self governance with full functional and financial autonomy.

11. The dominant purpose of all the local bodies is to serve the needs of all the local people and post 74th amendment not to depend on the State Government for their day to day functioning. A Finance Commission and a State Election Commission have been constituted for them under the Constitution. The multiple powers conferred on the local bodies is with a view to render efficient discharge of its functions / services in the entire system of local governance and to that extent there is total devolution of power at the grassroot level.

12. We in the light of above position now examine the scope and extent of the Government Order dated 3.4.2018 in order to ascertain as to whether it impinges upon the autonomy of the municipalities guaranteed under the 74th Amendment? The Government Order dated 3.4.2018 is reproduced hereinbelow.

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13. Clause-4 of the above Government Order enumerates the criteria evolved by the state government compatible with the Constitutional spirit of Article 243Q(2), which are to be cumulatively considered before the merger of any area into Municipality. The criteria are as follows -

(i) At least 75% of the inhabitants of the effected area must be involved in non-agricultural operations.

(ii) Good connectivity with the road

(iii) Presence of following indicators

(a) Police Station (b) Commercial Centre (c) Schools and other educational institutions (d) Status of Health facilities at Health Centre, hospitals, (e) electricity arrangements (f) branches of different banks (g) Post Office (h) Public toilet (i) Transport facility etc.

(iv) The merging area must have a population of at least 3 lacs.

14. Clause-5 of the above Government Order further provides that once the conditions indicated in paragraph-4 are satisfied then either the resolution of the Board or recommendation of the Commissioner for inclusion of an area into Nagar Nigam, i.e, Municipal Corporation be forwarded to the State Government. The report by the Commissioner must incorporate parameters mentioned therein.

15. Commissioner may not have been conferred with any power within the four corners of the Act of 1959, so as to include any area into the existing area of Nagar Nigam, which otherwise is well within the exclusive domain of the State Government under Article 243Q. The Commissioner rightly is not the approving authority for the merger. He only submitted a report on the basis of inputs as to the justification for merger of Nagar Panchayat Jhunsi and villages / Gram Panchayats of Block Bahadurpur into Nagar Nigam Prayagraj on the parameters indicated in the Government Order.

16. The Apex Court in Champa Lal v. State of Rajasthan, (2018) 16 SCC 356 held that under Article 243-Q(2), the Governor is not free to notify areas in his absolute discretion but is required to fix the parameters necessary to determine as to whether a particular area is a transitional area or smaller urban area or larger urban area with regard to parameters mentioned in Article 243-Q (2). It is implicit that such parameters must be uniform for the entire State and that only after determination of the parameters, various municipal bodies contemplated under Article 243-Q (1) could be constituted. The Apex Court in the said case struck down the notification on the premise that they purported to classify municipalities only on the basis of population and not the other parameters required under Article 243-Q(2) of the Constitution. We pointedly and repeatedly inquired from the learned Senior Counsels for the petitioners as to whether the prescribed parameters of Article 243-Q (2) of the Constitution and that of the Government Order dated 3.4.2018 are disputed or not and their answer was ''No', which otherwise is also discernible from their writ petitions and rejoinder affidavits as there was no specific challenge to the existence of prescribed parameters but for a bare general denial, as they only stuck to their stand that they ought to have been heard before merger.

17. Governor is the competent authority under Article 243-Q to take a final call as to whether an area of a local body is to be merged with another or not and that decision is to be based on certain materials. The power of the Governor is not under challenge, which otherwise is an executive power exercised with the aid and advise of the council of ministers. The State has its delegate in the form of a Commissioner, who on the basis of inputs supplied by the authorities submitted a report recommending a merger. The recommendation of the Commissioner cannot be faulted, as he is not the final arbiter to take a decision for merger. The report of the Commissioner is based on multiple relevant factors and the contention on behalf of the petitioner that it is based only on financial consideration, is patently misconceived. Once the recommendation of the Commissioner for merger is based on inputs supplied by amongst others, the Mayor, Municipal Commissioner, Addl. Municipal Commissioner of the Nagar Nigam on relevant indicators, thus absence of resolution of the Board, which was in the alternative, would be of no consequence.

18. We find from the provisions of Article- 243-Q as contained in Part-IX-A of the Constitution (The Municipalities) that the Governor is empowered to declare the character of an area as transitional area, smaller urban area or larger urban area, i.e, municipal corporation (Nagar Nigam) as the case may be, on the basis of population, density, revenue generated from the area, population employed in non-agricultural operations, economic importance or such other factors as the Governor may deem fit. Thus, there is no embargo to include any area to either in transitional area (Nagar Panchayat) or smaller urban area (Municipal Council) or larger Urban Area, (Municipal Corporation / Nagar Nigam). Once the petitioners do not dispute the existence of the parameters provided in paragraph-5 of the government order, the logical inference is that the merging area has all the potential to merge with the area of Nagar Nigam. If it were not so, it would give rise to an anomalous situation as even though the merging area may have the potential of a would be urban area, it would still be deprived of the scheme operating at the urban level and continue to be governed by the scheme operating at the merging area. Why a merging area, which has all the portents of becoming an important vehicle in the growth of a Nagar Nigam be deprived to reap fruits of a SMART CITY, which Nagar Nigam Prayagraj is apprising for?

19. Deprivation of benefits under Government schemes operating at the Gram Panchayat or at Nagar Panchayat Level upon merger with Municipal Corporation ipso facto would not affect the economic status of the inhabitants as they would be eligible under those government schemes operating at urban level. The Counter Affidavit on behalf of respondent no.3 Nagar Nigam Prayagraj in connected petition annexes a letter of State Government dated 5.2.2020, wherein a decision has been taken that development works initiated at village / Gram Panchayats of Block Bahadurpur, now notified to be merged in Nagar Nigam Prayagraj, consequent upon allocation of funds in 2019-20 shall be continued. We only reiterate what the Apex Court said in State of Maharashtra and others Vs. Jalgaon Municipal Council and others, (2003) 9 SCC 731, wherein a similar plea was rejected. Para-35 is quoted hereunder:

"So far as the objections preferred by the Municipal Council collectively and the individual 239 objectors are concerned, no one has alleged that any one of the factors contemplated as relevant by Article 243-Q proviso of the Constitution was absent or non-existent. None has disputed the correctness of the population figure as totalled by the census. The contentions raised are that the development works initiated by the Municipal Council may be adversely affected or that the taxes would increase while the quantum of the State's financial aid or grant may be reduced. Though it is for the State Government to apply its mind to the relevance and weight of the objections preferred, still we may note the submissions made by the learned counsel for the appellant State Government that a mere change in the constitution of the local self-government does not necessarily entail discontinuance of development projects and there is no reason to apprehend that they would not be continued. A change in governance is involved at every election though the administration continues with the Municipal Council. At the time of an election certain development works would be pending in progress which would naturally be taken over by the successor Municipal Council. Just as any new Municipal Council would take over the ongoing projects initiated by the predecessor Municipal Council so also a Municipal Corporation newly brought into being shall take over the continuing projects of the previous Municipal Council. Every change in mode of governance needs some readjustments. Need for switching over from a Municipal Council to a Municipal Corporation mode of administration is occasioned by growth of population and prosperity in any particular urban area. People share the prosperity and so must be prepared to pay the additional price by way of additional taxes, submitted the learned counsel for the State Government and we found substance therein."

19. The State Government, while issuing the impugned notification, has taken a conscious decision on the parameters prescribed in the Government Order dated 3.4.2018 to include the respective area of Gram Panchayat/ Nagar Panchayat into Nagar Nigam Prayagraj and there being no provision either in the Constitution and in particular in Article 243Q or in the Act of 1959 to put either the inhabitants or the representatives of the merging local bodies to notice, the logical inference is that it was a case of causus omissus. The Apex Court in Sangeeta Singh v. U.O.I, (2005) 7 SCC 484 observed that the two principles of construction appear to be well settled, i.e, one relating to causus omissus and the other of reading down the statute, while the former cannot be supplied by the Court except in a case of clear necessity and the reasons therefor are to be found within the 4 corners of the statute, while the latter should not be readily inferred and for that purpose all the parts of a statute or sections must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. "An intention to produce an unreasonable result", said Danckwerts LJ in Artemion vs. Procopiou (1965) 3 All ER 539 is not to be imputed to a statute if there is some other construction available.

20. The Courts are prohibited from filling the gaps in a statute where the omission appears to be deliberate and the omission does not lead to any anomaly or absurdity as it would amount to legislation, which is not intended. Thus, in the light of above interpretative process absence of opportunity to the residents / representatives of the merging body prior to merger of an area into municipal corporation was a deliberate omission in the Act of 1959, as it was open for the State Government while enacting the Act of 1959 to have taken note of the provisions of an earlier law in Section 4 of the Act of 1916 for prior notice. Once it's a case of deliberate omission on the part of legislature to provide a prior opportunity before merger of a local body into municipal corporation, we would refrain to import the principles of "reading down" as that would be in conflict with the legislative intent. The Constitution as amended by the 74th Amendment does not provide any opportunity to the merging local body prior to merger and the only opportunity contemplated is the one, which is granted before dissolution of a municipality under Article 243-U of the Constitution. The State in its wisdom had chosen to provide this opportunity to local bodies merging with Nagar Panchayat and Municipal Council under Section 4 of the Act of 1916. The Act of 1959 is absolutely silent. Absence of prior opportunity in the above backdrop does not lead to any absurdity, so as to enable us to read down the provision of prior opportunity.

21. We before parting also take judicial notice that the area of Jhunsi is situate on G.T. Road (NH-19) across the Shastri Bridge over the Ganges towards Varanasi, which has almost merged with the urban area of Prayagraj. Lawyers, Doctors, Teachers and other professionals are residing in the said area. Jhunsi has residential colonies of Awas Vikas and that of Prayagraj Development Authority and it also takes the credit of various hospitals, educational institutions and institutes of national and international repute, such as G.B. Pant Social Science Institute (a constituent college of Allahabad University) , Harish Chandra Research Institute (An Aided Institute of Department of Atomic Energy, Government of India), an institute dedicated to research in mathematics and theoretical physics.

We in the ultimate analysis are of the considered view that none of the pleas raised by the petitioners has any force, petitions are devoid of merit hence liable to be dismissed.

The writ petitions are dismissed. No orders as to cost.

Order Date :- 5.3.2021

N.S.Rathour

(Piyush Agrawal,J.) (Pankaj Naqvi,J.)