Allahabad High Court
Smt. Geeta Mishra vs State Of U.P.Thru Prin.Secy.Nagar ... on 8 July, 2020
Bench: Pankaj Kumar Jaiswal, Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- MISC. BENCH No. - 10372 of 2020 Petitioner :- Smt. Geeta Mishra Respondent :- State Of U.P.Thru Prin.Secy.Nagar Vikas Lucknow & Ors. Counsel for Petitioner :- Himanshu Raghave,Durga Prasad Shukla Counsel for Respondent :- C.S.C.,Sampurna Shukla Hon'ble Pankaj Kumar Jaiswal, J.
Hon'ble Dinesh Kumar Singh, J.
1. The present writ petition has been filed by the petitioner impugning the Notification No.1990/Nau-6-2019-05 C.V./2016 Lucknow dated 31.12.2019 issued under Section 3(2) of the Uttar Pradesh Municipalities Act ,1916 (hereinafter referred to as the 'Act') read with clause (2) of Article 243Q of the Constitution of India, whereby the rural areas shown in List-I have been declared to be included as smaller urban areas in the Municipality, Behla, District Pratapgarh. The petitioner has also prayed for quashing of the Government Order No.1584/Nau-6-2019-05 C.V./2016 dated 8.11.2019, whereby the objections of the petitioner as also others made in response to the Notification No.1870/Nau-6-2018-05 C.V./2016 dated 17.7.2019 with regard to proposal for including the various rural areas within the municipal limits of the Municipality, Behla, District Pratapgarh have been rejected.
2. Initially, a proposal dated 16.9.2009 was made by the Municipal Council. Behla regarding extension of its territorial limits. It appears that no substantive action was taken on the said proposal. Thereafter, on 5.11.2016 another proposal was made regarding which the Executive Officer, Municipal Council, Behla sent a letter dated 8.9.2017 to the District Magistrate Pratapgarh with recommendations in support thereof with request for taking further action in accordance with law. Again on 20.1.2018, a proposal for inclusion of certain areas for the purpose of extension of the territorial limits of the said municipality was approved, which was placed before the District Magistrate, Pratapgarh. The Sub-Divisional Magistrate, Sadar, Pratapgarh sent the proposal along with his report dated 19.7.2018 for inclusion of certain areas within the municipal limits of the said municipality. The Municipal Council, Behla vide letter dated 26.7.2018 gave its acceptance to the said proposal. Finally, the Sub-Divisional Magistrate, Sadar, Pratapgarh vide his letter dated 8.11.2019 furnished certain details with a list of areas proposed to be included for extension of the municipal area of the Municipality, Behla.
3. In exercise of the powers conferred by clause (2) of Article 243Q of the Constitution of India and sub-section (2) of Section 3 of the Act following the procedure as laid down in Section 4 of the said Act, an official Gazette dated 17.7.2019 containing draft proposal for inclusion of the enlisted and described areas in the municipal limits of Behla Municipality was published.
4. The petitioner who claims to be a social worker and had contested the election of Chairman of the said municipality and some others sent their objections to the draft proposal regarding inclusion of proposed areas in the municipal limits of Municipal Council, Behla. The Sub-Divisional Magistrate, Sadar issued notices to the objectors and heard them personally on their objections. The Sub-Divisional Magistrate after considering the objections submitted his report to the District Magistrate, Pratapgarh. The District Magistrate concurring with the report of the Sub-Divisional Magistrate, Sadar, submitted his report to the Secretary, Government of Uttar Pradesh, Nagar Vikas Anubhag-6, Lucknow vide his letter dated 20.9.2019.
5. The present petition has been filed on the ground that the Secretary was not empowered under the law to delegate powers to the subordinate authorities and, the power of considering the objections vests with the Governor alone. The Governor under Sections 3 and 4 of the Act is competent to decide the objections. Since, the objections have been decided by the District Magistrate/Sub-Divisional Magistrate as contained in the letter dated 20.9.2019, this exercise was done by an incompetent authority and, therefore, void. It has been further submitted that under Article 243Q of the Constitution of India various parameters which though are not exhaustive, have been provided for creation of "a transitional area", "a smaller urban area" or "a larger urban area" which inter alia include (i) population of the area, (ii) density of population, (iii) revenue generated for local administration, (iv) the percentage of employment in non-agricultural activities and (v) the economic importance. It has also been submitted that these parameters have been ignored while rejecting the objections.
6. Clause (e) of Article 243P of the Constitution of India defines "municipality" as to mean "the territorial area of a municipality constituted under Article 243Q". Article 243Q is extracted 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"
7. Section 3 of the Act provides for declaration etc. of transitional area and smaller urban area in the following manner :-
"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.] (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. Section 4 of the Act provides for the procedure preliminary to notification as under :
"4. Preliminary procedure to issue notification. - [(1) Before the issue of a notification] [referred to in Section 3], the [Governor] shall publish in the Official Gazette [and in a paper approved by it for purposes of publication of public notices, published 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 or the proposed notification along with a notice stating that the draft will be taken into consideration on the expiry of the period as may be stated in the notice.
(2) The [Governor] shall, before issuing the notification consider any objection or suggestion in writing which it receives from any person, in respect of the draft within the period stated."
9. From the objection disposal report dated 8.11.2019 (Annexure-2), it is evident that the objections have been finally decided at the level of the Government by the Principal Secretary, Urban Development. The only objection which the petitioner took, is that certain villages mentioned in the objections, which are adjacent to the boundaries of the municipalities have not been included. The said objection was rejected stating therein that the main occupation of the residents of the said villages was agriculture and, therefore, as per the policy of the Government, said villages have not been included in the notification. It was also said that two villages, namely, Karaundi Jehargo and Poorey Keshavrai, are situated at three kilometers away from the boundary of the municipality and NH-96 passes through these two villages. In village Poorey Keshavrai several schemes are under construction and some had got completed. Thus, the only objection raised was that certain villages, which were adjacent to the municipal boundaries, were not included. This said objection was rejected on the ground that the main occupation of the villagers was agriculture.
10. The petitioner has not taken any other objection and, therefore, she cannot be permitted to raise the new objection, which she did not take before the competent authority.
11. It is not correct to say that the objections were decided by Sub-Divisional Magistrate. From Annexure-2 dated 8.11.2019, it is evident that the objections were decided finally at the level of the Government i.e. by the Principal Secretary, Urban Development.
12. So far as population, density etc. are concerned, these are not the fixed parameters. The authorities have to take into consideration several factors while deciding the objection for inclusion of a particular area within the municipal limits. The Court should not interfere with the subjective satisfaction of the competent authority for inclusion or non-inclusion of a particular area within a municipal limit unless the power has been exercised arbitrarily or for oblique purposes or it is a colourable exercise of the power by the authority. There has been no violation of Article 243Q of the Constitution of India or Section 3 of the Act. Final notification has taken into consideration the population of the area, density of population, revenue generated in the areas for local administration, the percentage of employment in non-agricultural activities, the economic importance and other relevant factors. This Court does not find that the exercise has been undertaken in any arbitrary manner as alleged or otherwise. Relevant criteria have been considered and then the decision has been taken in accordance with law.
13. In respect to the second submission, learned counsel for the petitioner has placed reliance upon the judgement of the Madhya Pradesh High Court rendered in the case of Abhinesh Mahore and others Vs. State of MP and others, dated 14.10.2014, reported in 2014 Law Suit (MP)1552:2015 AIR (MP) 7 and has submitted that it is only the Governor, who is competent to decide the objection.
14. The Constitution of India provides parliamentary system of the Government both at the Union and the State levels subject to the discretionary functions or powers of the President and Governor. The Governor is not to exercise any function personally (Shamsher Singh Vs. State of Punjab) AIR 1974 SC 2192 (paras 55, 138). The Governor is a constitutional head of the executive and his powers are to be exercised on the advice of the Council of Ministers and through Ministers and other officers to whom functions may be allocated according to Rules of Business made under Article 166(3) of the Constitution of India. Any function vested in the Governor, whether executive, legislative or quasi judicial in nature and whether vested by the Constitution or by a Statute, may thus be delegated according to Rules of Business, unless the contrary is clearly provided for by constitutional or statutory provisions. When a function is so allocated by Rules of Business, the decision of the Minister or other officer empowered by those rules becomes the decision of the Governor.
15. The Principal Secretary, Ministry of Urban Development has been delegated with the power to decide the objections for including an area within the municipal limits. The power has been exercised by the competent officer while deciding the objection in his order dated 8.11.2019. Therefore, submission of the learned counsel for the petitioner that it was for the Governor to decide the objection has no merit and is liable to be rejected at the threshold. The Governor after satisfying from the report of deciding the objection, has published in the Official Gazette dated 31.12.2019, which is the subject matter of challenge in this writ petition and we do not find any illegality in the notification.
16. We do not find any error of law or jurisdiction in publication of such notification and, therefore, this writ petition is hereby dismissed, but without cost.
( Dinesh Kumar Singh, J.) (Pankaj Kumar Jaiswal, J.) Order Date :- 8.7.2020 Rao/-