Dismissed

Birendra Prasad Yadav v. The State of Bihar through the Chief Secretary

Patna HC12 May 2022CWJC/6193/2021

Case brief

AI extract

What is this about?

Three Gram Panchayat Mukhiyas challenged the constitution of two Nagar Panchayats, arguing violation of Article 243-Q(2) due to lack of public notice specifying classification parameters. The Court held that the Bihar Municipal Act, 2007 prospectively specified requisite uniform parameters satisfying the constitutional mandate, and dismissed the writ.

What the court decided

AI extract

Birendra Prasad Yadav Vs The State of… — Constitutional and Fundamental Rights | Patna HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6193 of 2021

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======================================================

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Birendra Prasad Yadav, Son of Bhuvneshwari Yadav, Resident of Village - Khunt, Ward No.4, Ramnagar Pharsahi, P.O. - Chopra Bazar, P.S. - Jankinagar, District- Purnia, Bihar- 854102.

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Smt. Rupa Devi, Wife of Ramesh Paswan, Resident of Village - Madhuban, Vishwakarma Chowk, Ward No. 6, P.O. - Chopra Bazar, P.S. - Jankinagar, District- Purnia, Bihar - 854102.

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Smt. Ramawati Devi, Wife of Shayamlal Mandal, Resident of Village - Laharouni, P.O.-Rupouli, P.S.-Rupouli, Rampur Parihat Panchayat, DistrictPurnia, Bihar - 854204.

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... ... Petitioner/s

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Versus

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The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

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The Secretary, Law Department, Government of Bihar, Patna.

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The Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna.

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The Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna.

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The Commissioner, Purnia, Division.

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The District Magistrate, Purnia.

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The Sub-Divisional Officer, Banmankhi, District- Purnia.

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The Sub- Divisional Officer, Dhamdaha, District- Purnia.

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The Bihar State Election Commission through its Secretary, Sone Bhawan, Patna.

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The Secretary, Bihar State Election Commission, Sone Bhawan, Patna.

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... ... Respondent/s ====================================================== Appearance : For the Petitioners : Mr.Kumar Kaushik, Advocate Ms. Namrta Dubey, Advocate For the State : Mr.Shankar Kumar, A.C. to AAG-7 For the State Election Commission (Respondent Nos.9 & 10) : Mr.Sanjeev Nikesh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE MADHURESH PRASAD CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE MADHURESH PRASAD)

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Date : 12-05-2022

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Three petitioners in the instant application were the elected Mukhiya of Ramnagar Pharsahi Gram Panchayat, Madhuban Gram Panchayat and Rampur Parihat Gram Panchayat, all in the district of Purnia. They have approached this Court being aggrieved by the process of upgradation/constitution of Nagar Panchayat Jankinagar (Banmankhi) and Nagar Panchayat Rupouli, as also the consequent constitution of the two Nagar Panchayats as being violative of Article 243-Q of the Constitution of India (the Constitution’, in short) and the provisions of the Bihar Municipal Act, 2007 (the 2007 Act’, in short).

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The petitioners’ counsel, at the very outset, submits that in view of the decision of this Court in the case of Usha Devi vs. State of Bihar, reported in 2022(1)PLJR 833 , wherein the Division Bench has dealt with the other issues which the petitioners initially proposed to canvass in these proceedings, the counsel would confine his submissions to the effect that Article 243-Q(2) of the Constitution requires the Governor to specify by public notification the requisite population of the area, density of population therein, revenue generated for local administration, percentage of employment in non-agricultural activities, economic importance or any other

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factor, based on which any area is to be classified and constituted as one of three class of Municipal area. Thus, the two communications dated 14.05.2020 and 20.05.2020 issued by the State Government in the Urban Development and Housing Department to all the District Magistrates for initiating upgradation/constitution of Municipal area, is unsustainable. Petitioners have sought quashing of these two communications.

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Since the requisite parameters have not been specified by public notice to determine whether a particular area is a transitional area, a smaller urban area or a larger urban area under Article 243-Q(2) of the Constitution, there was no legal basis for issuance of Notifications dated 26.12.2020, declaring the intention of the Government to constitute Nagar Panchayats Jankinagar (Banmankhi), including Madhuban and Ramnagar Pharsahi village; as also for constituting Nagar Panchayat Rupouli by including seven villages of Gram Panchayat Dhobgiddha and Rampur Parihar. The declaration of intention issued by Notification dated 26.12.2020, whereby objections have also been invited from the inhabitants of the area, is also assailed in the instant proceedings.

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During pendency of the instant writ proceedings, Notification dated 03.03.2021, bearing Memo

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No.1027, has been issued by the Urban Development and Housing Department, Government of Bihar constituting Rupouli Nagar Panchayat by upgrading/including seven Gram Panchayats, out of which Petitioner No.3 was elected the Mukhiya of Rampur Parihar Gram Panchayat. Another Notification of the same date, bearing Memo No.1024, has also been issued by the Urban Development and Housing Department, Government of Bihar constituting Jankinagar Nagar Panchayat by upgrading/including several Gram Panchayats, out of which Petitioner No.1 was the elected Mukhiya of Ramnagar Pharsahi Gram Panchayat and Petitioner No.2 was the elected Mukhiya of Madhuban Gram Panchayat. The two Notifications dated 03.03.2021, bearing Memo Nos.1027 and 1024, issued by the Urban Development and Housing Department, Government of Bihar constituting Rupouli Nagar Panchayat and Jankinagar Nagar Panchayat respectively, have also been assailed by the petitioners.

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It is the petitioners’ contention, relying upon the decision of the Apex Court in the case of Champa Lal Vs. State of Rajasthan and others, reported in (2018) 16 SCC 356 , that requisite parameters were not specified by public notifications to be applied uniformly throughout the State of Bihar. Thus the

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entire exercise for constitution of the two Nagar Panchayats in question is unsustainable being in contravention of Article 243Q(2) of the Constitution.

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Learned counsel for the State, on the other hand, has submitted that after determining uniform requisite parameters, which are specified in Sections 3, 7, 13 of the 2007 Act, relying upon the Bihar Municipal (Amendment) Act, 2020 (`Amendment Act, 2020’, in short), the State Government has undertaken the process, leading to constitution of the two Nagar Panchayats in question.

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Having considered the rival submissions, this Court would observe at the outset that the legal proposition advanced by Mr. Kumar Kaushik, learned counsel for the petitioners that as per Article 243-Q(2) of the Constitution, no steps for constitution of a municipal area can be undertaken without specifying by public notification is indubitable. The law that uniform requisite parameters must exist to determine whether a particular area is a transitional area, smaller urban area, or larger urban area is well settled in view of decision of the Apex Court in the case of Champa Lal (supra),which has been relied upon by the petitioners’ counsel.

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What remains to be seen is whether in the

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process of upgradation/constitution of the two Nagar Panchayats, in the instant case, uniform parameters had been specified by public notification; and whether based on such specified parameters the process for upgradation/constitution of Nagar Panchayat Jankinagar and Nagar Panchayat Rupouli has been carried out.

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This Court would, therefore, consider it useful to reproduce Article 243-Q(2) of the Constitution, which reads as follows:

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“243-Q. Constitution of Municipalities.—(1)

(a) …………………...

(b) …………………...

(c) ……………………….

(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 (1) population of the area, the (2) density of the population therein, the (3) revenue generated for local administration, the (4) percentage of employment in non-agricultural activities, the (5) economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part.”

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In compliance with the constitutional mandate of Article 243-Q, the Legislature of the State of Bihar has enacted the Bihar Municipal Act, 2007. Section 3 of the 2007

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Act reads as follows :

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3. Declaration of intention to

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constitute a municipal area. ---(1) The State Government may, after making such inquiry as it may deem fit, and having regard to the population of any urban area, density of population there in, the revenue generated for the local administration of such area, the percentage of employment in non-agriculture activities in such area, the economic importance of such area, and such other factors as may be prescribed, by notification, declare its intention to specify such area to be a larger urban area, or a medium urban area, or a transitional area:

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Provided that no such declaration shall be made unless the population

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(a) in the case of a larger urban area, is two lacs or more,

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(b) in the case of medium urban area, is forty thousand or more but is less than two lacs, and

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(c) in the case of a transitional area, that is a small town, is twelve thousand and more but not more than forty thousand:

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Provided further that the nonagricultural population in all cases shall be seventy five per cent or more.

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Explanation .Revenue generated for the local administration" shall not include-

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(a) taxes, if any, distributed to

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the Municipality by the State Government,

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(b) loans and grants from the State Government, and

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(c) loans and grants from the Central Government or institution or other source.

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(2) The State Government shall, by notification, declare an area specified as -

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(i) a larger urban area to be a

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city,

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(ii) a medium urban area to be a town, and

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(iii) a small town or transitional area to be a Nagar Panchayat or urban growth centre

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(3) Notwithstanding anything contained in sub-section (1), the State Government may, by notification, determine separate conditions, to constitute any hill area, pilgrim centre, tourist centre or mandi as a municipal area.”

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[“2. Amendment of Section 3 of Bihar Act 11, 2007.--

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(i) Second proviso of subsection (1) of Section 3 of the said Act shall be substituted by following:

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“Provided further that the total population of main cultivator workers and marginal cultivator workers shall be below fifty percent of total population of workers in such area in all cases.” ]

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Section 7 of the 2007 Act reads as follows :

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“Section 7-Classification of Municipal areas

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The State Government may, for the purpose of application of the provisions of this Act, classify any municipal area on the basis of the population as ascertained at the last preceding census of which the relevant figures have been published, as—

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(a) a larger urban area

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having population above 2,00,000

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(b) a medium urban area

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of—

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Class 'A' municipal area having population above 1,50,000 but not exceeding 2,00,000, or

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Class 'B' municipal area having population above 1,00,000 but not exceeding 1,50,000, or

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Class 'C municipal area having population above 40,000 but not exceeding 1,00,000, and

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(c) transitional small urban area having population above 12,000 but not exceeding 40,000:

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Provided that for the purpose of classification of municipal areas in any hill area, pilgrim centre, tourist centre or mandi town, the government may, by notification, determine separate size of population for each class of such municipal areas.”

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Section 13 of the 2007 Act reads as follows :

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“ 13. Composition of Municipality .--Each Municipality shall consist of such number of

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Councillors/wards within the maximum limit as are specified in the Table below determined by the State Government.

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The Table

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	Number o	f Councilors/Wards
Population range	Minimum	Incremental Number	Maximum
Above 10 lakh Above 5 lakh upto 10 lakh	67 57	One additional Councillor for every 75,000 above 10 lakh One additional Councillor for every 50,000 above 5 lakh	75 67
Above 2 lakh upto 5 lakh	45	One additional Councillor for every 25,000 above 2 lakh	57
	Mun	icipal Councils
Class ‘A’ Municipal Council Class ‘B’ Municipal Council Class ‘C’ Municipal Council	42 37 25	One additional Councillor for every 15,000 above 1,50,000 One additional Councillor for every 10,000 above 01 lakh One additional Councillor for every 5,000 above 40,000	45 42 37
	Na	gar Panchayat
Nagar Panchayat	10	One additional Member for every 2,000 above 12,000	25

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[Provided that notwithstanding anything

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contained in any other provision of this Act, until he relevant figures for the census of the year 2021 are published, it shall not be necessary for the State Government to re-determine the number of wards on the basis of population of the municipal area ascertained at 2011 Census.]

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Section 3 of the 2007 Act prescribes the

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population , based on which a municipal area may be constituted as a transitional area, medium urban area or larger urban area. The percentage of employment in nonagricultural activities has also been laid down in the Act in the second proviso to sub-section(1) of Section 3 of the 2007 Act.

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The revenue generated for local administration has been specified in the Explanation of sub-section (1) of Section 3 of the 2007 Act. The basis for ascertaining the population has also been specified for uniform application throughout the State of Bihar in Section 7 of the 2007 Act to be the last preceding census of which the relevant figures have been published.

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Section 13 of the 2007 Act lays down minimum and maximum number of Councillors/wards within the population range for determining whether a municipal area would be a transitional area (Nagar Panchayat), a smaller urban area (Municipal Councils) or a larger urban area (Municipal Corporation). The requisite parameters specified in this Section take care of composition/ density of population for determining whether an area may be constituted/upgraded as a transitional area, a smaller urban area or a larger urban area.

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Thus, seen it is evident that several parameters have been specified by the 2007 Act for uniform application throughout the State of Bihar to determine whether an area may be constituted/upgraded as “a transitional area”, “a smaller urban area” or “a larger urban area”. These parameters have been specified in exercise of discretion vested in the Governor by Article 243-Q(2) of the Constitution, and have never been

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assailed by the petitioners.

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The contention of the petitioners’ counsel that

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in absence of uniform parameter having been fixed for constitution of the municipal area, the State Government could not have issued communication to the District Magistrates by the two letters dated 14.05.2020 and 20.05.2020 is clearly unsustainable in the eyes of law. Firstly, the said two communications were issued way back in May, 2020. The declaration of intention to constitute the two Nagar Panchayats was issued pursuant to an exercise based on these two communications much thereafter, i.e., on 26.12.2020.

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The petitioners have filed their objection in response to the declaration of intention and inviting of objections by issuance of the Notification dated 26.12.2020. Throughout this process they have chosen not to assail the said two communications dated 14.05.2020 and 20.05.2020. Secondly, this Court would find that these two communications have been issued since the erstwhile uniform fixed parameters, prior to the amendment of Section 3 by Bihar Municipal (Amendment) Act, 2020 regarding percentage of employment in non-agricultural activities was coming in the way of urbanisation/development of such areas, which, having regard to

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economic importance and size of the areas, as per executive policy, were required to be constituted as municipal area for betterment of the civic amenities and other issues of public interest. The concerns forming the basis of executive policy as reflected from these two communications can be seen from an extract of the communication dated 14.05.2020, which is being reproduced herein below :

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^^ 6- bl izdkj mi;qZDr dafMdk&5 esa fd, x, la”kks/ku ds mijkar vc jkT; esa dbZ u, uxj fudk;ksa dk xBu gksus dh laHkkouk gSA ,d v/;;u ds vuqlkj mi;qZDr dafMdk&5 esa vafdr la”kks/ku ds vkyksd esa jkT; esa 100 ¼,d lkS½ esa Hkh vf/kd u, uxj iapk;r xfBr gksus dh laHkkouk ifjyf{kr gksrh gSA

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7- bruk gh ugha] ;g Hkh laHkkouk gS fd mijksDr dafMdk&5 esa vafdr la”kks/ku gks tkus ds i”pkr jkT; ds dqN cM+s uxj iapk;rksa dks ^^uxj ifj’kn** ds :Ik esa mRØfer fd, tkus ds laca/k esa Hkh fopkj fd;k tk ldrk gS rFkk jkT; ds dqN cM+s uxj ifj’knksa dks ^^uxj fuxe** ds :Ik esa mRØfer fd, tkus ds laca/k esa Hkh fopkj fd;k tk ldrk gSA

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8- mYys[kuh; gS fd jkT; ds NksVs izxfr”khy “kgjhuqek {ks=ksa dks uxj iapk;r ds :Ik esa vf/klwfpr fd, tkus ls mu {ks=ksa esa uxj fudk;ksa }kjk nh tkus okyh lHkh izdkj dh lqfo/kk,a ;Fkk lkQ&lQkbZ]

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leqfpr Mªsust] tykiwfrZ] dwM+k mBko] dpjk laxzg.k] LVªhV ykbZV] jks”kuh bR;kfn oSlh lqfo/kk,a] tks fofHkUu uxj fudk;ksa miyC/k djkbZ tkrh gS] os lqfo/kk,a bu uxj iapk;rksa okys {ks=ksa esa Hkh miyC/k djk;k tk ldsxk] ftlls ml iwjs ds yksxksa dks mu uxjh; lqfo/kkvksa dk ykHk fey ldsxkA lkFk gh ,sls u, uxj fudk;ksa ds varxZr “kgjh {ks=ksa esa ykxw vU; lHkh ;kstukvksa dk Hkh ykHk bu {ks=ksa ds yksxksa dks izkIr gks ldsxkA lkFk gh ,sls uoxfBr uxj fudk;ksa dk ekLVj Iyku cukdj lqfu;ksftr :Ik ls fodkl

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(planned development) fd;k tk ldsxkA

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9- vr% vuqjks/k gS fd fcgkj uxjikfydk vf/kfu;e] 2007 dh /kkjk&3¼1½ esa mi;qZDr dafMdk&5 esa vafdr la”kks/ku fd, tkus ds vkyksd esa vius ftykarxZr foLr`r leh{kk djrs gq,] ;fn vko”;d gks rks] u, uxj iapk;rksa ds xBu dk izLrko fofgr izi= esa uD”kk ,oa vuq”kalk lfgr fnukad 21-05-2020 rd miyC/k djk;k tk,A fofgr izi= bl i= ds lkFk layXu fd;k tk jgk gSA

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10- lkFk gh ;fn mi;qZDr dafMdk&5 ds vkyksd esa foLr`r leh{kk ds mijkar mi;qZDr dafMdk&7 ds vuqlkj ;fn vkids ftyk esa fdlh cM+s uxj iapk;r dks ^^uxj ifj’kn** esa mRØe.k dk izLrko gks vFkok vkids ftyk esa fdlh cM+s uxj ifj’kn dks ^^uxj

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fuxe** esa mRØfer djus dk izLrko gks rks ,sls izLrkoksa dks Hkh fofgr izi= esa uD”kk ,oa vuq”kalk lfgr fnukad 21-05-2020 rd miyC/k djkus dk d’V fd;k tk;A

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11-d`i;k bls loksZPp izkFkfedrk nsrs gq, fnukad 21-052020 rd mi;qZDr izLrko miyC/k djkus dk d’V fd;k tk,A fu/kkZfjr vof/k ds vUrxZr izLrko izkIr ugha gksus ij ;g ekuk tk,xk dh vkids ftykarxZr ,sls fdlh u, uxj fudk; dk xBu vFkok fdlh uxj fudk; ds mRØe.k dk izLrko ugha gS rFkk rnuqlkj vxzrj dkjZokbZ dh tk,xhA ******

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From perusal of the extract of the

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communication dated 14.05.2020, it is obvious that the same has been issued with the sole intention of informing all the District Magistrates the concern of the State Government for upgradation/constitution of the municipal areas in larger public interest being for better civic amenities and municipal services to the otherwise urbanized yet the small progressive areas, having regard to the amendment in Section 3 of 2007 Act by the Amendment Act of 2020.

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This Court does not find any legal infirmity in these two letters so as to render them to be in any manner in conflict with 2007 Act or Article 243-Q of the Constitution.

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16/21

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Regarding the other submission of the petitioners’ counsel that the requisite uniform parameters for classification and constitution of municipal area has not been specified by public notice and as such, the process of upgradation/constitution is violative of Article 243-Q(2) of the Constitution, this Court would observe that the submissions are not fit to be accepted.

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Article 243-Q(2) vests discretion in the

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Governor to specify by public notifications the factors/parameters, based on which “a transitional area” “a smaller urban area” or “a larger urban area” may be upgraded or constituted. Such specification by public notifications as per the constitutional mandate is to be by the Governor having regard to the population, density of population, revenue general for local administration, percentage of employment in non-agricultural activities, economic importance or such other factors as he may deem fit. The various parameters enumerated in Article 243Q(2) are not exhaustive, but are illustrative leaving discretion in the Governor as he may deem fit. The only prescription is that the parameters have to be uniform and must be specified by public notification for the purposes of this part, being constitution of municipal area.

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As noticed above, these parameters have already been laid down by the State Legislature in Section 3 and Section 7 of the 2007 Act as amended by the Amendment Act of 2020. It is not the petitioners’ case that the process of upgradation/constitution of the two municipal areas in question are not based on the uniform fixed parameters specified by the 2007 Act. This Court in this context would refer to certain relevant paragraphs from the judgment of the Apex Court in the case of Champa Lal (supra), relied upon by the petitioners, which read as follows :

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“7. It is declared under Article 243-Q(2) that the expressions “a transitional area”, “a smaller urban area” and “a larger urban area” (hereinafter collectively referred to as “Areas”) would mean such areas as may be specified by the Governor by a public notification for the purpose of Part IX-A of the Constitution of India. Article 243-Q(2) further obligates the Governor to have due regard to the various factors mentioned therein before specifying the Areas i.e. population of the area, the density of the population, the revenue generated in the area for local administration, percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit.

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8. It, therefore, appears from the scheme of Article 243-Q(2) that the Governor is not free to notify “Areas” in his

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absolute discretion but is required to fix the parameters necessary to determine whether a particular AREA is a transitional area or a smaller urban area or a larger urban area with due regard to the factors mentioned above. It is implicit that such parameters must be uniform for the entire State. It is only after the determination of the parameters, various municipal bodies contemplated under Article 243-Q(1) could be constituted.

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(emphasis ours)

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9. In response to a specific query whether any notification contemplated under Article 243-Q(2) had been issued by the State of Rajasthan, Mr Guru Krishnakumar, learned Senior Counsel appearing for the State of Rajasthan, produced two Notifications dated 4-7-1995 and 30-4-2012. On a plain reading of both the notifications, it appears that these notifications had been issued in exercise of the statutory powers conferred on the State Government by two different enactments known as the Rajasthan Municipality Act, 1959 (since repealed) and the Rajasthan Municipalities Act, 2009. Apart from the declaration regarding the source of power for the issuance of these notifications to be authority conferred by the various provisions of the abovementioned two enactments, it appears from the tenor and scheme of the notifications that these notifications purport to classify municipalities only on the basis of population. The various other parameters to which regard is required to be had under Article 243-Q(2) were not

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taken into consideration for the purpose of classification made under the abovementioned two notifications. Therefore, in our opinion, these two notifications cannot be treated as notifications contemplated under Article 243Q(2).

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We have supplied emphasis by underscoring paragraph 8 in the quotation of relevant extracts from the judgment of the Apex Court in the case of Champa Lal (supra), as the same lays down as to what is substantial compliance with the constitutional requirement under Article 243-Q(2) of the

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Constitution.

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Within the limits of constitutional discretion vested in the Governor under Article 243-Q(2) of the Constitution, this Court finds that the requisite parameters for determining whether an area is to be constituted/upgraded as a transitional area, a smaller urban area or a larger urban area, is clearly specified by the 2007 Act. Sections 3, 7 and 13, taken note of above, in clear and specific terms lay down the requisite parameters in furtherance of the constitutional mandate under Article 243-Q(2) of the Constitution. The constitutional requirement of requisite parameters, as per the decision of the Supreme Court in the case of Champa Lal (supra), are therefore held to be satisfied by the above noted provisions of the 2007

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Act.

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The petitioners have not raised any objection that the above noted parameters specified in the 2007 Act are not satisfied or fulfilled in respect of the two areas constituted as urban area, namely, Nagar Panchayat Jankinagar (Banmankhi) and Nagar Panchayat Rupouli.

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In view of the aforesaid discussions, considering the judgment of the Apex Court in the case of Champa Lal (supra), Article 243-Q(2) of the Constitution and the provisions contained in the 2007 Act, this Court would conclude that the process of upgradation/constitution has been done based on uniform specified parameters contained in 2007 Act,which have been enacted in furtherance of the constitutional objective under Article 243-Q, and which are in consonance with the requirement of public notice as per decision of the Supreme Court of India in the case of Champa Lal (supra); and which has never been assailed by the petitioners.The process of upgradation and consequent upgradation/constitution of Nagar Panchayat Jankinagar (Banmankhi) and Nagar Panchayat Rupouli therefore does not suffer from any constitutional/legal infirmity.

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