Allahabad High Court
Keshav Dev Kushwaha vs State Of U.P. & 3 Others on 28 August, 2014
Author: Dilip Gupta
Bench: Dilip Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court AFR Case :- WRIT - C No. - 44289 of 2014 Petitioner :- Keshav Dev Kushwaha Respondent :- State of U.P. & 3 Others Counsel for Petitioner :- S.M. Haider Zaidi, Saurabh Tiwari Counsel for Respondent :- C.S.C. Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, Chief Justice Hon'ble Dilip Gupta, J.
This petition has been filed by an elected member of the Nagar Palika Parishad, Firozabad for the following reliefs:
(i) A declaration that Section 8-AA of the Uttar Pradesh Municipal Corporation Act, 19591 is ultra vires Article 243-U of the Constitution;
(ii) A certiorari for quashing notifications dated 4 August 2014 and 7 August 2014;
(iii) A mandamus not to curtail the term of the Nagar Palika Parishad, Firozabad and to allow the elected members to continue, notwithstanding the constitution of a municipal corporation; and
(iv) A mandamus to reconstitute the areas to be included in the Nagar Palika Parishad for uplifting it to the status of a municipal corporation.
On 20 October 2008, in exercise of powers conferred by Section 3 of the Uttar Pradesh Municipalities Act, 1916 read with Article 243-Q of the Constitution, the State Government notified the areas which were comprised within the limits of the Nagar Palika Parishad, Firozabad. On 20 April 2011, an unanimous resolution was passed at a meeting of the Nagar Palika Parishad recording that since the population of the area was 6,23,000, a municipal corporation may be notified. By a notification dated 4 August 2014 issued under Section 3 of the Act of 1959 read with Article 243Q, the areas comprised in Schedule-1 to the notification have been comprised to form part of a larger urban area within the meaning of sub-clause (c) of Clause (1) of Article 243Q. The limits of the municipal corporation of Firozabad have been specified in Annexure-2.
At the hearing of the petition, the constitutional challenge to the provisions of Section 8-AA of the Act of 1959 has not been pressed.
The submission which has been urged on behalf of the petitioner is that when a proposal was originally sent to the State Government, it was proposed to upgrade the Nagar Palika Parishad to a municipal corporation of which the area was described to be 21.35 sq kms. Subsequently, on 10 July 2014, the District Magistrate addressed a communication to the Urban Development Department wherein it was contemplated that 344 gatas comprising of the entire village of Asafabad and 322 gatas of the entire village Didamai were to be comprised in the larger urban area. However, according to the petitioner, it appears that the total area which has been included within the municipal corporation admeasures 3490.132 hectares (stated to be equivalent to 34.90 sq kms) as opposed to the original proposal, which extended to an area admeasuring 21.35 sq kms. Moreover, it has been submitted that the area which is comprised in the limits of the municipal corporation stands increased, though the proposal envisaged that there would be no increase in the area. It has also been submitted that the actual gata numbers which have been comprised would stand reduced if a comparison is made between the notification dated 20 October 2008 constituting a municipality and the notification dated 4 August 2014 constituting a municipal corporation. This point is sought to be illustrated by stating that in respect of village Asafabad, the notification dated 20 October 2008 comprised 421 gata numbers, whereas the notification dated 4 August 2014 comprises of 344 gata numbers. In the case of Didamai, it is stated that the earlier notification dated 20 October 2008 comprised of 506 gata numbers as opposed to the notification dated 4 August 2014 which comprises of 512 gata numbers. On this basis, it is urged that the area and the exact number of gatas cannot be ascertained.
At the outset, it must be noted that the petition in question is not one which is filed in the public interest. The petition is by an elected member of the Nagar Palika Parishad, Firozabad. Elections to the Nagar Palika Parishad were held on 26 June 2012 and the petitioner claims an indefeasible right to hold office for a period of five years. In fact, that is the basis on which prayer (iii) seeks a mandamus to the respondents not to curtail the term of the Nagar Palika Parishad and to allow the petitioner and other elected members to continue to perform their duties. Such a submission cannot be countenanced. The elected members of the Nagar Palika Parishad had, in fact, resolved on 20 October 2011 to recommend the constitution of a municipal corporation. Be that as it may, there is no merit in the plea of the petitioner that elected members of the erstwhile Nagar Palika Parishad must continue until their term of five years comes to an end. This point is no longer res integra and is governed by a decision of the Supreme Court in State of Maharashtra Vs. Deep Narayan Chavan2 where the Supreme Court, while dealing with the provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, held as follows:
".. under Section 341 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 when the whole of the local area comprising a municipal area ceases to be a municipal area, with effect from the date on which such local area ceases to be a municipal area, the Council constituted for such municipal area shall cease to exist or function and the Councillors of the Council shall vacate office. Article 243-U of the Constitution unequivocally indicates that 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. The expression "unless sooner dissolved under any law for the time being" would bring within its sweep the provisions of Section 341 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 and therefore the moment the Corporation is constituted in accordance with law, the elected Municipal Council would cease to function and so also the Councillors, though elected will have to vacate the office..."
The principal purpose of the petitioner appears to be to continue in office as an elected member of the erstwhile Nagar Palika Parishad which now stands dissolved upon the constitution of a municipal corporation.
Insofar as the ground of challenge as advanced by the learned counsel is concerned, the Court must, first and foremost, have due regard to whether there is a substantive plea in the pleadings to support the submission. On this aspect, the petition is entirely vague. The only averment which can remotely come to the aid of the petitioner is contained in paragraph 34 of the petition which reads as follows:
"That the very basis of the inclusion of new Mauza (villages) in Nagar Palika Parishad, Firozabad is doubtful and there are differences in Government Notifications 2008 and 2014. The area and the exact number of gatas cannot be ascertained in the present case on account of differences."
A similar ground of challenge is set up in Ground P. In paragraph 6 of the supplementary affidavit, there is a reference to a difference in the number of gatas shown in the gazette notification of 2008 (constituting a municipality) and the notification dated 4 August 2014 (constituting a municipal corporation). Now, in this regard, it is evident from the material which is annexed to the supplementary affidavit, that the entirety of the villages were intended to be included are included within the ambit of the municipal area. However, there was a change in the actual number of gatas as a result of the bifurcation of the land between ZA and non-ZA numbers which necessitated an alteration in the actual number of gatas which came to be included in the final notification dated 4 August 2014.
Article 243-Q of the Constitution provides for the constitution in every State, inter alia, of a municipal corporation of a larger urban area. Clause (2) of Article 243-Q specifies that the Governor may, having regard to the population of the area, the density of the population, the revenue generated for local administration, the percentage of employment in non-agricultural activities and the economic importance or such other factors as may be deemed fit, specify by a public notification, a larger urban area for the purposes of Part IX-A. The notification which has been issued in the present case is in exercise of this constitutional power read with the provisions of Section 3 of the Act of 1959. The challenge to the notification, besides not being supported by any specific pleadings, is entirely on a surmise and is lacking in substance.
For these reasons, we find no reason to entertain the petition. The petitioner is not entitled to reliefs as claimed or for any other relief.
The petition is, accordingly, dismissed. There shall be no order as to costs.
Order Date :- 28.8.2014 AHA (Dr. D.Y. Chandrachud, C.J.) (Dilip Gupta, J.)