Allahabad High Court
Smt. Ragni Devi vs State Of U.P. And 5 Others on 9 August, 2021
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - C No. - 13629 of 2021 Petitioner :- Smt. Ragni Devi Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Chandan Sharma Counsel for Respondent :- C.S.C.,Man Bahadur Singh Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard Sri Shashi Nandan learned senior Advocate assisted by Sri Chandan Sharma learned counsel for the petitioner, Sri M.C Chaturvedi learned Additional Advocate General and learned senior Advocate assisted by Sri Ravi Prakash Pandey learned counsel for the respondent no.5, Sri Man Bahadur Singh learned counsel for caveators and learned Standing counsel for the State respondent.
The petitioner herein is the elected Chairman of Nagar Panchayat, Siswan Bazar which was notified by the notification dated 6.2.1953 issued in exercise of the power conferred under Clause (a) and (c) of Sub-section (1) of Section 3 of the U.P. Town Areas Act, 1914. The last election of the Nagar Panchayat wherein the petitioner was elected as Chairman, had been held on 1.12.2017.
A notification dated 10.12.2019 had been issued by the State Government for constitution of the Municipal Council (Nagar Palika Parishad) in Siswan Bazar, Maharajganj comprising of 22 Revenue villages /17 Gram Panchayats around the Nagar Panchayat area.
Consequent to the notifications issued by the State Government, the Public Interest Litigation no.1822 of 2020 (Anoop Kumar Pathak & another vs State of U.P & others) was filed wherein the following prayer was made:
"I) Issue a writ, order or direction in the nature of mandamus commanding the respondents to dissolve the erstwhile Nagar Panchayat, Siswan Bazar, Maharajganj.
II) Issue a writ, order or direction in the nature of mandamus commanding the respondents to constitute the Municipal Council and Ward Committee in accordance with provisions of Article 243-Q, 243-R, 243-S, 243-T, 243-U read with Section 9 and 10A of the U.P Municipality Act, 1916.
III) Issue a writ, order or direction in the nature of mandamus commanding the respondents to appoint administrator in Municipal Council, Siswan Bazar, District Maharajganj till the election of the Chairperson and Ward Committee of the newly constituted Municipal Council Siswan Bazar, Maharajganj."
The said writ petition was disposed of vide order dated 8.2.2021 in the following terms:
"As regard to relief for the constitution of Municipal Council, proviso to Section 333 of 1916 Act stipulates:
"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."
In the case at hand evidently with the Notification dated 31.12.2019 Municipal Council, Siswan Bazar, District Maharajganj is constituted. It was the bounden duty of the District Magistrate as early as possible make preliminary arrangements for the holding of first elections. Non holding of election for over one year reflects inaction and non performance of statutory obligation, by the District Magistrate.
In view whereof the District Magistrate, Maharajganj is directed to hold election of newly created Municipal Council, Siswan Bazar, as early as possible, however not later than three months from the date of communication of this order.
The petition is disposed of finally in above terms.
No costs."
It is contended by the learned senior counsel that the order passed by this court dated 8.2.2021 had been challenged before the Apex Court and the special leave petition is pending consideration as on date.
However, in purported compliance of the judgment and order dated 8.2.2021 the State Government had issued an order dated 2.6.2021 for appointment of the Administrator in respect of the Nagar Palika Parishad Siswan Bazar citing the provisions of Sections 333, 333-A and 343 of the U.P Municipalities Act, 1916. Pursuant thereto, the consequential order dated 2.6.2021 had been passed by the District Magistrate, Maharajganj appointing the Additional Sub Divisional Magistrate, Maharajganj as Administrator, Nagar Palika Parishad, Siswan, Bazar until further orders.
These two orders are subject matter of challenge in the present petition.
It is argued by the learned senior Advocate that the provisions of Section 333 of U.P Municipalities Act, 1916 cannot be invoked for the purpose of the appointment of the Administrator in the matter of reconstitution of the existing municipality as no new municipality has been created rather the exercise conducted by the State Government is the exercise of delimitation by virtue of sub-section (2) of Section 3 of the U.P Municipalities Act, 1916. The submission is that, in case of transition or declaration of small urban area, the provisions of Section 333-A of the Act, 1916 are applicable which do not provide for any exercise for appointment of the Administrator till the elections of the reconstituted Municipality (Nagar Palika Parishad) is held.
It is then argued that an elected body cannot be displaced without taking recourse to the provisions of the Act. Only power vest with the State Government is to dissolve the existing Municipality (Nagar Panchayat concerned) by invoking the provisions of Section 30 of the U.P Muncipalities Act, 1916 which would require conducting of the exercise in accordance with the provisions of Article 243U of the Constitution of India. Submission, thus, is that the reconstitution of the existing municipality is covered by sub-section (2) of Section 3 and in that eventuality the petitioner being an elected Chairman of the then Nagar Panchayat, is entitled to continue till the elections are held to manage the affairs of the reconstituted Municipality (Nagar Palika Parishad).
Sri M.C Chaturvedi learned Additional Advocate General/learned Senior Advocate appearing for the respondents, on the other hand, submits that the transition of the Nagar Panchayat into a Nagar Palika Parishad is in fact creation of a new Municipality vide notification issued in terms of Section 3(1) of the Act, 1916. The consequence of Sections 333 and 333-A of the Act, 1916 would, therefore, follow.
Considering the said submissions, having noticed the provisions of the U.P Municipalities Act, specifically Section 3(1), Section 333 and Section 333-A of the Act, 1916, we are of the considered view that the transition of Nagar Panchayat into a Nagar Palika Parishad is a declaration under Section 3(1) of the Act, 1916. The provisions of Section 3(2) of the Act, 1916 as pressed into service by the learned senior Advocate, are not attracted in the instant case.
The word "Municipality" has been defined in sub-section (9) of Section 2 of the Act, 1916. Sub-sections '(9-A)', '(9-B)' and '(9-C)' are also relevant to be noted hereunder:
"(9) "Municipality" means an institution of self-Government [referred to in clause (e) of Article 243-P of the Constitution];
(9-A) "Municipal area" means the territorial area of a municipality.
(9-B) "Municipal Council" means the Municipal Council constituted under sub-clause (b) of clause (1) of Article 243-Q of the Constitution.
(9-C) "Nagar Panchayat" means the Nagar Panchayat constituted under sub-clause (a) of clause (1) of Article 243-Q of the Constitution."
The Nagar Panchayat and Nagar Palika Parishad (Municipal Council) are included in the word "municipality" which is an institution of self government referred to in Clause (e) of Article 243-P of the Constitution.
The opening words in Section 333 are "when a new "Municipality" is created under the Act"; which means the creation of Nagar Panchayat, Nagar Palika Parishad, (Municipal Council) or the Municipal area defined in sub-sections '(9-C)', '(9-B)' and '(9-A)'; respectively.
The then Nagar Panchayat as defined in sub-section '(9-C)' of Section 2 has now ceased to be in existence with the creation of the Municipal Council (Nagar Palika Parishad) as defined in sub-section (9-B) of Section 2 of the Act. With the creation of a new municipality by virtue of the notification issued under Section 3(1) of the Act, the provision of Section 333 of the U.P Municipality Act, 1916 is to follow.
As regards Section 333-A, the same deals with the consequence of the declaration of smaller urban area with the notification issued under Section 3(1) of the Act, 1916. Section 333 of the Act, 1916 makes provision for the transitional period and confers the power on the District Magistrate, or other officer, or Committee or authority appointed by him in this behalf, to exercise the power and perform the duties & functions of the Municipality, till an elected body takes over.
Considering the scheme of the Act, we are not impressed by the above arguments of the learned Senior Advocate. The challenge to the direction issued by the State Government in terms of the judgment and order dated 8.2.2021 of this Court and the consequential decision of the District Magistrate for appointment of Administrator under Section 333 of the Act, 1916, therefore, cannot be sustained.
The writ petition is, accordingly, dismissed.
Order Date :- 9.8.2021 Harshita