Smt. Gulab Kali vs State Of U.P. And 4 Others
2022 Latest Caselaw 20194 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 21
 

 
Case :- WRIT - C No. - 23647 of 2022
 

 
Petitioner :- Smt. Gulab Kali
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Shri Krishna Mishra,Ajay Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Jayant Banerji,J.

The instant petition has been filed challenging the notification dated 22.7.2022 issued in exercise of power under Article 243-Q of the Constitution read with section 3 of the U.P. Municipalities Act, 1916 constituting Nagar Panchayat Karikan Dhata, Fatehpur comprising of the areas mentioned in Schedule 1 and 2 of the said notification. As a result, the entire area of Village Narsinghpur Kabraha has been included in the transitional area of Nagar Panchayat, Karikan Dhata, District Fatehpur.

The impugned notification has been challenged on two grounds; firstly, the petitioner who is Pradhan of said Gram Panchayat was elected in the year 2021 and the first meeting of the Gram Panchayat was held on 26.5.2021 and according to Article 243-E of the Constitution, the tenure of the Panchayat was upto 26.5.2026. Consequently, the impugned notification will have the affect of curtailing the tenure of Gram Panchayat and the petitioner will be deprived of her office as Pradhan of the village and second, the draft of the notification under Section 3 was not published in the newspaper in the manner prescribed in Section 4 of the U.P. Municipalities Act, 1916.

As far as the first issue is concerned, the same has been decided by this Court in Writ - C No. 25471 of 2022 (Nilesh Singh vs. State of U.P. and 4 Others). The relevant part of the said judgment is reproduced below for ready reference: -

"5. Constitution defines a 'Panchayat' under Article 243(d) as an institution of self-government constituted under Article 243-B, for the rural areas. Article 243-E mandates that every Panchyat, 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.

6. Similarly under Section 12 of the U.P. Panchayat Raj Act, 1947, the term of the Gram Panchayat is five years. Our Constitution is a living document. The Parliament while introducing the 74th Amendment, 1992 conferring constitutional status to institutions of self-Government like Panchayats and Municipalities, was alive of the reality that urbanisation is making inroads in the rural areas. The constitutional scheme envisages constitution of a Nagar Panchayat for a transitional area that is to say, an area in transition from a rural area to an urban area; Municipal Council for a smaller urban area; and Municipal Corporation for a larger urban area.

7. In Smt. Mohini Sharma vs. State of U.P., 2016 (10) ADJ 221, a similar issue arose for consideration before this Court. It was answered as follows :-

"18. A bare perusal of the Section 5 of U.P. Municipalities Act, 1916, would go to show that whereby a notification referred to in sub-section (2) of Section 3 the Governor includes any area in a transitional area or smaller urban area, such area shall thereby become subject to all notifications, rules, regulations, bye-laws, orders, directions, issued or made under this or any other enactment and in force throughout the transitional area or smaller urban area, at the time immediately preceding the inclusion of the area. Thus the affairs of the same will have to be governed under the provisions of U.P. Municipalities Act, 1916 and it may be true that Pradhan in question has been elected for a period of five years but once the very identity of the Gram Panchayat in question has been lost on account of inclusion of such area, then the provisions of U.P. Panchayat Raj Act, 1947, would not at all operate and same will have to be governed under the provisions of the U.P. Municipalities Act, 1916. Any other view would tantamount to diluting the provisions of Section 5 of U.P. Municipalities Act, 1916.

19. Apex Court in the case of State of Maharashtra Vs. Deep Narain Chavan, 2002 (10) SCC 565, while considering the arguments advanced that once Municipal Council is constituted, then its duration shall be five years in accordance with constitutional provisions contained in Article 243-Q, has ruled while considering the expression "unless sooner dissolved under any law for the time being in force", that the moment Corporation is constituted in accordance with law, the elected Municipal Council would cease to function.

20. Article 243-E deals with duration of Panchayat, Article 243-U deals with duration of Municipalities and both the constitutional provisions share in common the expression "unless sooner dissolved under any law for the time being in force". Once Governor takes a call for constitution of municipality in exercise of authority conferred under the constitution namely Article 243-Q that specifically refers to three type of municipalities i.e. Nagar Panchayat for transitional area, a Municipal Council for a smaller urban area and Municipal Corporation for a larger urban area, the moment declaration is made under Article 243-Q read with Section 3 of the U.P. Municipalities Act, 1916, by the State Government, then the said municipal body would be a sovereign body having both constitutional and statutory status. As already noted in the earlier part of the judgement, the constitutional as well as statutory provisions pertaining to 'Panchayats' would go to show that object of Part IX of the Constitution was to introduce the panchayat system at grass root level and strengthen the panchayat system by giving uniform constitutional vibrant units of administration in the rural area so that there can be rapid implementation of rural development sector. Once there is complete transformation from rural area to urban area having regard to population of area, the density of population therein, the revenue generated from local administration, the percentage of employment in non-agricultural activities, the economic importance and other factors, made by the State Government, then the said area is denoted in the notification would be out from the purview of Part IX of the Constitution and the provisions of U.P. Panchayat Raj Act, 1947 and the affairs of the said area treating the same to be urban area would be covered by the provisions of Part IX A of Constitution alongwith the provisions of U.P. Municipalities Act, 1916."

8. Again, while interpreting Article 243-Q, which preserves five years tenure of Municipality, it has been held by this Court in Nagar Palika Parishad and others Vs. State of U.P. and others, 2010 (3) ADJ 703 that the tenure contemplated under the said provision will not apply where an area of one description is converted into an area of another description. The dissolution of municipality of lower description was held to be a fate accompli. The relevant portion is extracted below :-

"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 . "

9. Under Section 3-A(2) of the Act, every Nagar Panchayat or Municipal Council constituted under sub-section (1) is a body corporate. Thus, with the issuance of the impugned notification, an entirely new body in the name of Nagar Panchayat - Haisar Bazar has come into existence. It has a separate and distinct identity from its predecessor i.e., the Gram Panchayats whose territories have been merged in constituting the Nagar Panchayat. The provision of Article 243-E and Section 12 of the U.P. Panchayat Raj Act cannot be read in isolation but harmoniously, alongwith the other provisions of the Constitution and the Act. Under Section 333 of the Act, the District Magistrate has been invested with power to perform the functions and duties of the newly constituted Municipality until the holding of first election. Section 333 is quoted below :-

"333. Exercise by District Magistrate of Municipality's power pending establishment of Municipality.- When a new municipality is created under this Act, the District Magistrate, or other officer, or committee, or authority appointed by him in this behalf, may until a Municipality is established, exercise the powers and perform the duties and functions of the Municipality, and, he or it shall, for the purposes, aforesaid be deemed to be the Municipality.

Provided always that the District Magistrate or such other officer, or committee, or authority shall, as early as possible, make preliminary arrangements for the holding of first elections and generally of expediting the assumption by the Municipality of its duties when constituted."

10. The Gram Panchayat of which the petitioner was Pradhan, had ceased to exist in view of the constitutional scheme and the provisions of the Act. The petitioner is left with no subsisting right to continue to function as Pradhan or to resist holding of election of the newly constituted Nagar Panchayat."

Consequently, we find no force in the first submission.

Coming to the second submission, we may note that Section 4 of the U.P. Municipalities Act, 1916 prescribes that proposed notification has to be published at least in one newspaper published from the district in Hindi and if there is no such paper in the district, in the division in which the local area covered by the notification is situate apart from other modes.

It is noteworthy that the State-respondents have come up with categorical stand in paragraph 7 of the counter affidavit that the draft notification was published in one local newspaper and one national newspaper, extracts of which has been annexed. It reveals that the draft notification was duly published in two newspapers, one of it being in a newspaper published from the district in hindi.

In relation to publication by other modes, no challenge is being made. Consequently, we find no force in the second submission also.

The petition lacks merit and is, accordingly, dismissed.

Order Date :- 7.12.2022

sfa/

(Jayant Banerji, J) (Manoj Kumar Gupta, J)