Smt. Sushma Devi And 8 Others vs State Of U.P. And 4 Others on 1 October, 2021

[Cites 12, Cited by 1]

Allahabad High Court

Smt. Sushma Devi And 8 Others vs State Of U.P. And 4 Others on 1 October, 2021

Equivalent citations: AIRONLINE 2021 ALL 3244

1. Heard Sri Sanjeev Singh, Sri Pramod Kumar Srivastava, Sri Rama Shanker Mishra learned Advocates for the petitioners, Sri Manish Goel learned Additional Advocate General assisted by Sri A.K. Goel learned Additional Chief Standing Counsel for the State-respondents, Sri Madan Mohan Srivastava learned Advocate for the Nagar Palika Parishad and perused the record.

2. By means of the abovenoted writ petitions, the petitioners seek for quashing of the notification dated 26.10.2016 issued under Section 4 of the Uttar Pradesh Municipalities Act, 1916 (hereinafter referred to as "the Act, 1916"); alongwith the decision for rejection of their objections dated 13.1.2017 as also the final notification issued under sub-section (2) of Section 3 of the Act, 1916.

Further prayer is to issue a mandamus commanding the respondents not to treat the Nagar Panchayat Bharwari, Kaushambi as upgraded Nagar Palika Parishad, Bharwari, Kaushambi as the conditions of the Government Order dated 10.11.2014 had not been met while issuing the final notification under Section 3(2) of the Act, 1916.

The petitioners herein (in both the writ petitions) are mostly Gram Pradhans of the respective Village Panchayat and some are villagers of different villages.

3. The challenge to the notification for upgradation of the Nagar Panchayat to Nagar Palika Parishad is based on the plea of violation of the mandatory conditions of the Government Order dated 10.11.2014.

4. It is argued by Sri Sanjeev Singh, Sri Pramod Kumar Srivastava and Sri Rama Shanker Mishra learned Advocates for the petitioners that the Government Order dated 10th November, 2014 had been issued for laying down the criteria for categorization of the Nagar Palika Parishads as well as for upgradation of the Nagar Panchayats to Nagar Palika Parishads. In Para '3(Ka)' of the Government Order, three categories of Nagar Palika Parishads had been provided with the condition for their categorization based on the Annual income, population and density of population per square kilometer of the concerned local body (Nagar Palika Parishad).

The table in Para '3(Kha)' has been placed before us to assert that the decision for upgradation of a Nagar Panchayat to Nagar Palika Parishad would require fulfillment of the criterias in the above noted Para '3' of the Government Order. For determination of the population/density of population, Census of the year 2011 was to be taken into consideration as per Para '5' of the Government Order dated 10.11.2014. As per the aforesaid table provided in Para '3(Ka)' of the Government Order dated 10.11.2014, for category 'III', (which is applicable in the matter of the Nagar Panchayat Bharwari), the minimum yearly income as required was Rs. 60 Lacs to Rs. 1.75 crores and the minimum population criteria was more than 1 Lac and less than 1.50 Lacs whereas the density of the population was minimum 6266 per square kilometer. The upgradation of the Nagar Panchayat to that of the Nagar Palika Parishad could be done only on fulfillment of the above criterias and not otherwise.

It is contended that on a R.T.I. information dated 16.9.2017 received by one person Sri Shankar Lal, it was reflected that the receipt of the Nagar Panchayat, i.e. yearly income of the Nagar Panchayat Bharwari was only Rs. 25,17,140/- for the financial year 2014-15, Rs. 30,23,201/- for the financial year 2015-16 and Rs. 23,09,957/- for the financial year 2016-17. As regards the population, as per the census of the year 2011, the population of the Nagar Panchayat Bharwari was only 98352, less than 1 Lac. As per the final notification dated 1.9.2017 itself, the total area of the Nagar Palika Parishad being 7422.5805 hectares, the density of the population as per census of the year 2011, would be 1325 persons per square kilometers which further supports that the criteria determined in the Government Order dated 10th November, 2014 were not fulfilled. It is then contended that even if, the total population of the Nagar Panchayat Bharwari was taken as 1,08,000 as indicated in the final notification, it could not meet the minimum criteria of density of population being 6266 per square kilometer for upgradation as Nagar Palika Parishad as the population density per square kilometer would be only approximately 1450 per square kilometers in that case. Apart from above two objections, no other grounds narrated in the writ petition have been pressed before the Court to challenge the notification in question.

5. Sri Manish Goel learned Additional Advocate General assisted by Sri A.K. Goel learned Additional Chief Standing Counsel for the State-respondents, on the other hand, submits that the Government Order dated 10.11.2014 was merely a guideline and the decision of the Governor for upgradation of the Nagar Panchayat to Nagar Palika Parishad is based on all other criterias not only income and population as provided in Article 243-Q(2) of the Constitution of India. Even otherwise, objections were invited from all concerned by issuance of a notification dated 26th October, 2016 under Section 4 of the Act, 1916, which was published in the daily newspaper "Dainik Jagran" on 12th November, 2016 and was also pasted on the 'Notice Board' in the office of the Collector, Kaushambi and the offices of the Tehsils Chayal and Sirathu on 8.11.2016. Number of objections had been received in the office of respondent no. 1 and they were forwarded to the District Magistrate, Kaushambi. Full opportunity was provided to the objectors by the District Magistrate, Kaushambi and by the order dated 14.12.2016, all the objections were decided and forwarded to the respondent no. 1, wherein approval was given on 13.1.2017. The order passed by the District Magistrate, Kaushambi rejecting the objections has also been appended with the writ petition. The final notification, thus, had been issued after disposal of the objections in writing.

It is then contended that all the requirements in respect of the upgradation of the Nagar Panchayat to Nagar Palika Parishad had been fulfilled and the constitution of Nagar Palika Parishad Bharwari, District Kaushambi was for the better development of the area concerned. As regards the plea of the petitioners regarding non-fulfillment of the criteria regarding minimum income of the Nagar Panchayat for upgradation, Article 243-X has been placed before the Court to submit that the income of a 'Municipality' includes its annual income from the levy/collection of the taxes, duties, tolls and fees as also the grant-in-aid received by the Municipality from the consolidated funds of the State or any other funds received by it under the Central sponsored scheme.

The contention is that as per the mandate of Article 243-X, the funds of Municipality is created for crediting all moneys received by or on behalf of the Municipalities. The contention of the petitioners, thus, that yearly income of the Nagar Panchayat Bharwari was below the limit (1.75 crores) is incorrect.

The photo copy of the income chart appended as Annexure C.A.-'7' to the counter affidavit has been placed before the Court to assert that the annual income of the Nagar Panchayat Bharwari for the financial year 2013-14 was Rs. 4,26,85,979/-, year 2014-15 was Rs. 4,51,67,043/- and for the year 2015-16 it was Rs. 4,11,74,242/-, which has been intimated by the Executive Officer, Nagar Panchayat Bharwari, Kaushambi.

6. It is then contended that the information under R.T.I. Act provided by the Clerk of the Accountant was misleading and the concerned Clerk was not competent to provide any information under the R.T.I. Act. Wrong information having been provided on behalf of the Executive Officer, Nagar Panchayat Bharwari, Kaushambi containing incorrect data cannot be believed.

As regards the dispute relating to the population, it is contended that after completion of the due process, the figures pertaining to the population of the Nagar Panchayat Bharwari had been placed before the State Government. It is lastly contended that only few of the petitioners herein had filed objections which had been dealt with and the issues raised herein had not been raised by them in their objections. The present writ petitions have been filed only with a view to stall the process of upgradation for personal benefit and motivated minds of the petitioners who are making all efforts to save their Pradhanships of the respective villages.

7. Considering the said submissions, we may firstly note the relevant provisions pertaining to the upgradation of the Nagar Panchayat to Nagar Palika Parishad. The Constitution of the Municipalities is governed by the provisions of the Constitution under Article 243-Q which reads as under:-

"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."

As provided therein, there are various factors which have to be taken into consideration by the Governor for declaration of a transitional area, small urban area, larger urban area. The Nagar Panchayat as per Article 243-Q(1)(a) is a transitional area, i.e. an area in transition from a rural area to an urban area. For upgradation of a transitional area to a small urban area (Municipal Council) as has been done by the notification in question, the Governor was required to have regards to various factors which are:-

(i) population of the area;

(ii) the density of the population of the area;

(iii) the revenue generated for local administration;

(iv) the percentage of employment in non-agricultural activities;

(v) the economic importance;

(vi) or such other factors as he may deem fit.

The population or density of the population of the area and the revenue generated for local administration are only two of the various factors which were required to be considered by the Governor.

8. Article 243-X is further relevant to understand the meaning of the words "revenue generated for local administration" as indicated in Article 243-Q. Article 243-X is reproduced for ready reference:-

"243X. Power to impose taxes by, and Funds of, the Municipalities.- The Legislature of a State may, by law,-

(a) authorise a Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits;

(b) assign to a Municipality such taxes, duties, tolls and fees levied and collected by the State Government for such purposes and subject to such conditions and limits;

(c) provide for making, such grants-in-aid to the Municipalities from the Consolidated Fund of the State; and

(d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of the Municipalities and also for the withdrawal of such moneys therefrom, as may be specified in the law."

A careful reading of Article 243-X(a-d) shows that the Legislature of the State, by law, has to provide for constitution of funds of the Municipality for crediting all moneys received either by or on behalf of the Municipalities. It shall also make legislation for providing grant-in-aid to the Municipalities from the consolidated funds of the State and authorise or assign to the Municipality to levy such taxes, duties, tolls and fees collected by it and by the State Government for the purpose and subject to such conditions and limits, as may be specified in the legislation of the State.

9. Learned Additional Advocate General submits that the phrase "the revenue generated for local administration" as occur in Article 243-Q would include the funds provided by the State/Centre under different schemes, including grant-in-aid to the Municipalities from the consolidated funds of the State as also the taxes, duties, tolls, fees levied/collected either by it or by the State Government. All these funds collectively would constitute the revenue of the Municipality and the stand of the petitioners that only the income generated by the Municipality for a financial year from the levy/collection of taxes, duties, tolls and fees would be the factor or criteria as per Para 3(Ka) of the Government Order dated 10.11.2014, is a wrong interpretation of the language employed therein.

10. Having carefully gone through the constitutional provisions and the language of the Government Order dated 10.11.2014, we are afraid to accept the submissions of the learned Advocates for the petitioners that the income of the Municipality (Nagar Panchayat Bharwari) as indicated in the R.T.I. Information, was less than Rs. 1.75 cores. The certificate of the Executive Officer, Nagar Panchayat Bharwari, Kaushambi appended as Annexure C.A.-'7' to the counter affidavit clearly indicates the income/revenue generated by the Nagar Panchayat being much more that the minimum prescribed limit.

11. In the rejoinder affidavit, only this much is stated that the document appended as Annexure C.A.-'7' does not bear the date on which the authority concerned had signed or prepared it. The said statement would not be a plausible objection. The denial of the stand of the respondent regarding incorrect information being provided by the Clerk of the Accountant in the office of the Executive Officer, Nagar Panchayat, Bharwari is also vague.

This apart, the person who had obtained the alleged information namely one Sri Shankar Lal is not before us. We, therefore, cannot place reliance on the information received by some other person from the office of the Nagar Panchayat Bharwari which had not been signed by the Executive Officer, Nagar Panchayat Bharwari, Kaushambi. The stand of the respondent that the Clerk of the Accountant was not the competent authority or the Public Information Officer is also substantiated from a perusal of the R.T.I. information appended as Annexure '5' to the writ petition.

12. We, therefore, cannot take exception to the stand of the respondent that the income of Nagar Panchayat Bharwari was much more than the limits prescribed by the Government Order dated 10.11.2014.

13. As regards the population criteria, we may note that the figures provided in the preliminary notification under Section 4(1) of the Act, 1916 shows the population of each village which were to be included for upgradation of the Nagar Palika Parishad, Bharwari, District Kaushambi. No objection whatsoever had been taken by any of the petitioners regarding the figures mentioned therein. Further, the population density or the population as per the Census of the year 2011 was taken as one of the criteria for creation of the Nagar Palika Parishad but there are other important factors which were to be taken into consideration by the Governor. Apart from this fact that the Census of the year 2011 was taken into consideration in the year 2017 to assess the population density. There is nothing on record which would indicate that there was no increase in the population of the village Panchayat in the intervening period (for five years).

14. Lastly, while considering all the above arguments, we must remind ourselves to the scope of judicial review to an executive decision within the scope of Article 226 of the Constitution of India. It is settled principle that within the limited scope of the judicial review, the decision of the Executives cannot be overturned on the basis of that being an incorrect decision. The Court can only examine as to whether there was flaw in the decision making process. If two views are possible, the view taken by the competent authority/Executive will not be upset on the ground that the Court thinks that the other (better) view ought to have been taken. This is not in the province of the writ court.

15. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in exercise of such power or the exercise of the power is manifestly arbitrary. The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established, mere assertion in that regard would not be sufficient. The satisfaction of the authority can be interfered with only if the satisfaction recorded is demonstratively perverse based on no evidence, misreading of evidence or which a reasonable man could not form or that the person concerned was not given due opportunity resulting in prejudice. To that extent, objectivity is inbuilt in the subjective satisfaction of the authority. [Reference State of NCT of Delhi and another vs. Sanjeev Alias Bittoo1]

16. As demonstrated before us, no flaw could be found in the decision making process as the notification under Section 4(1) of the Act, 1916 was issued to invite objections from all concerned. The final notification was issued only after disposal of the objections by a written order. Under the scheme of the Constitution, a large amount of latitude within the four corners of the Article 243-Q(2) has been made available to the State in determining as to which category of the Municipality is to be constituted for an area, under the Act. The parameters within which the Governor is to notify an area as a Municipality under Article 243-Q refers to various factors including the population density and income/revenue generated by the Municipality, which are the subject matter of dispute in the present petition.

17. As has been noted above, the "Nagar Panchayat" under the scheme of the Constitution is a transitional area, an area which is in transition from a rural area to an urban area. There cannot be a dispute or doubt that the population density of the concerned area is increasing day by day. The "revenue generated for the local administration" is also variable depending upon the income which also include the income generated from the State funds under the schemes floated in the concerned area. The percentage of employment in non-agricultural activities and the economic importance are also the important factors which have to be taken into consideration by the Governor for upgradation of the transitional area to an urban area (small urban area as in this case). From the material on record and even from the stand of the petitioners herein, it cannot be said that the Nagar Panchayat Bharwari which was a transitional area had not seen changes/increase in the population, revenue generation, employment opportunities and economic activities during the course of time.

18. The contention of the learned Advocates for the petitioners that the transition of the Nagar Panchayat Bharwari to a smaller urban area (Municipal Council), i.e. Nagar Palika Parishad would run against the spirit of the constitution is, thus, found wholly misconceived.

19. We may note that there is no basis of the contention of the petitioners that the upgradation of the Nagar Panchayat Bharwari will affect the lives and livelihood of its denizens rather the stand of the respondent that the creation of the Nagar Palika Parishad, Bharwari would provide better prospects for development as the scope of implementation of the Government scheme in a Nagar Palika Parishad would be expanded. There cannot be a doubt that the upgradation is for the public benefit.

20. Considering the above, we do not find it a fit case for exercise of judicial review within the scope of Article 226 of the Constitution of India, as for any alternative view taken by this Court, the decision of the State for the upgradation of the Nagar Panchayat Bharwari to Nagar Palika Parishad, Bharwari cannot be upset on the plea of it being against the Constitutional scheme. The notification dated 26.10.2016 cannot be held unconstitutional on the plea of the petitioners herein and the material on record.

The writ petitions are, thus, found devoid of merits and hence dismissed.

			   [Sadhna Rani (Thakur),J.]        (Sunita Agarwal,J.)
 
Order Date :- 1.10.2021
 
Brijesh

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