Dismissed

Hazi Akhtar and Another v. State of U.P. and 2 Others

Allahabad HC9 Feb 2021WPIL/299/2021

Case brief

AI extract

What is this about?

Petitioners challenged a state notification excluding their village from the Municipal Council limit, seeking inclusion. The court found the notification issued validly under Article 243-Q and the Uttar Pradesh Municipalities Act, 1916, with proper procedure observed. The dismissal of suggestions did not vitiate the order. The PIL was dismissed.

What did the court decide?

The petition seeking quashment of the notification and direction to include the village in the Municipal Council limit was dismissed.

Hazi Akhtar and Another Vs State of U.P. and 2… — Municipal and Town Planning | Allahabad HC (2021)

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Court No. - 9

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Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 299 of 2021

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Petitioner :- Hazi Akhtar And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rahul Mishra,Abhishek Mishra Counsel for Respondent :- C.S.C.,Shyam Kishore Yadav

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Hon'ble Sanjay Yadav,J. Hon'ble Jayant Banerji,J.

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Petitioners, resident of Village Panchayat Hasangarh, engaged in social work vide this Public Interest Litigation seeks quashment of notification dated 23.12.2020 and order dated 18.12.2020 and seek direction to the State to include entire area of Village Panchayat- Bauraoli, Khurja, District Bulandshahar within the territorial limit of Nagar Palika Parishad, Khurja or in the alternate direct respondent to include Gata No. 63 to 70, 73(Neeli Kothi), 78 and 79 of said Village Panchayat within Nagar Palika Parishad, Khurja.

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Evidently, the impugned notification is issued by the State Government in exercise of its powers under Clause (2) of Article 243-Q of the Constitution read with sub-section (2) of Section 3 of the Uttar Pradesh Municipalities Act, 1916 and is in furtherance to notification No. 1074/IX-2-2019-02 (Seema Vistar)/2011 dated November 13, 2020 whereby objections and suggestions were invited for including certain area specified in Schedule-I annexed therewith in the smaller urban area of Municipal Council Khurja. The objections and suggestions as evident from the notification were decided and disposed of vide Government Order No. 850/IX-2-2020-02 (Seema Vistar)/2011 dated December 18, 2020.

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That Article 243-Q of the Constitution stipulates that 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 the 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 in accordance with Part IXA.

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Clause (2) of the Article 243Q provides that "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 purpose of this part.

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That relevant provisions in consonance with Part IXA of the Constitution were substituted in the Act of 1916. Section 3 makes provision regarding declaration etc. of transitional area and smaller urban area. Sub-section (2) of Section 3 mandates that:

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"(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."

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That by virtue of sub-section (3) of Section 3 the notification under sub-section (1) and (2) of Section 3 has been subjected to the condition of the notification being issued after the previous publication required by Section 4 which mandates:

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" 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.]

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(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]."

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In the case at hand the procedure as prescribed under Section 3 and Section 4 of the 1916 Act has been adhered to. Thus there is no procedural irregularity. Furthermore, as contemplated under sub-section (2) of section 4, the impugned notification has been issued after disposing the objection and suggestions and merely because the suggestions of the petitioners for including Village Panchayat- Bauraoli, Khurja or Gata No. 63 to 70, 73(Neeli Kothi), 78 and 79 of Village Panchayat Bauraoli, Khurja is not acceded, will not in our considered opinion make the impugned notification vulnerable.

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In view whereof we perceive no merit in the petition.

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Consequently, petition fails and is dismissed. No costs.

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Order Date :- 9.2.2021 A. V. Singh

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(Jayant Banerji, J.) (Sanjay Yadav, J.)

Hazi Akhtar and Another v. State of U.P. and 2 Others

Case brief

What is this about?

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Hazi Akhtar and Another v. State of U.P. and 2 Others

Case brief

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