# Nagar Panchayat Jhunsi Prayagraj & Anr v. State of U.P. & Ors

- **Citation:** (2021) 4 ILRA 229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-05
- **Case number:** Writ - C No. 8226 of 2020
- **Bench:** Pankaj Naqvi, Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nagar-panchayat-jhunsi-prayagraj-anr-v-state-of-u-p-ors-46992
- **Pages:** 12

## Headnote

A. Constitution of India,1950 - Art.243Q -
Constitution of Municipal Corporation/
Nagar
Nigam
-
Merger
of
Nagar
Panchayat into Nagar Nigam - on the
recommendation of the Commissioner -
no proposal of the Board of Nagar Nigam
Prayagraj - Validity - Held - As per G.O. dt
3.4.2018, Para 4, 5 - proposal to merge
Nagar Panchayat into Nagar Nigam must
emerge from the resolution of the Board
or the report of the Commissioner -
Commissioner being the delegate of the
State Government is empowered to make
his recommendation for merger based on
inputs
supplied
by
amongst
others
Mayor, Municipal Commissioner, Addl.
Municipal Commissioner of the Nagar
Nigam on relevant indicators - absence
of resolution of the Board, which is in the
alternative, would be of no consequence -
Governor is the competent authority
under Article 243-Q to take a final call
(Para 17)
B. Constitution of India, Art.243Q -
U.P. Municipal Corporation Act (2 of
1959)
-
Constitution
of
Municipal
Corporation/ Nagar Nigam - Merger of
Nagar Panchayat into Nagar Nigam -
without inviting objections prior to
inclusion of a Nagar Panchayat into
Nagar Nigam - Legality - Held - there is
no provision either in the Constitution &
in particular in Article 243Q or in the Act
of 1959 to put either the inhabitants or
the representatives of the merging local
bodies
to
notice
or
provide
any
opportunity to the merging local body
prior to merger - Absence of prior
opportunity
does
not
lead
to
any
absurdity, so as to enable Court to read
down the provision of prior opportunity
(Para 19)

C. Interpretation of statute - Casus
omissus & 'reading down' - Courts are
prohibited from filling the gaps in a
statute where the omission appears to be
deliberate & the omission does not lead to
any anomaly or absurdity as it would
amount
to
legislation,
which
is
not
intended (Para 20)

Held - Absence of opportunity to the residents /
representatives of the merging body prior to
merger of an area into municipal corporation
was a deliberate omission in the Act of 1959 -
since it was case of deliberate omission on the
part of legislature to provide a prior opportunity
before merger of a local body into municipal
corporation - Court refrained to import the
principles of "reading down" as that would be in
conflict with the legislative intent. (Para 20)

D. Constitution of India, Art.243Q -
Governor is empowered to declare the
character of an area as transitional area,
smaller urban area or larger urban area,
on the basis of population, density,
revenue
generated
from
the
area,
population employed in non-agricultural
operations, economic importance - there
is no embargo to include any area to
either
in
transitional
area
(Nagar
Panchayat)
or
smaller
urban
area
230 INDIAN LAW REPORTS ALLAHABAD SERIES
(Municipal Council) or larger Urban Area,
(Municipal Corporation / Nagar Nigam) -
No illegality in straight away merging
Gram Panchayat with a larger urban area
i.e. municipal corporation. (Para 18)

Dismissed. (E-4)

List of Cases cited:-

## Text

4 All. Nagar Panchayat Jhunsi Prayagraj & Anr. Vs. State of U.P. & Ors.
229
(2021)04ILR A229
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2021

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE PIYUSH AGRAWAL, J.

Writ - C No. 8226 of 2020
and
Writ - C No. 3522 of 2020

Nagar Panchayat Jhunsi Prayagraj & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shashi Nandan, Sri R.K. Mishra, Sri
Udayan Nandan

Counsel for the Respondents:
C.S.C., Sri Suresh C. Dwivedi, Sri Vibhu Rai

A. Constitution of India,1950 - Art.243Q -
Constitution of Municipal Corporation/
Nagar
Nigam
-
Merger
of
Nagar
Panchayat into Nagar Nigam - on the
recommendation of the Commissioner -
no proposal of the Board of Nagar Nigam
Prayagraj - Validity - Held - As per G.O. dt
3.4.2018, Para 4, 5 - proposal to merge
Nagar Panchayat into Nagar Nigam must
emerge from the resolution of the Board
or the report of the Commissioner -
Commissioner being the delegate of the
State Government is empowered to make
his recommendation for merger based on
inputs
supplied
by
amongst
others
Mayor, Municipal Commissioner, Addl.
Municipal Commissioner of the Nagar
Nigam on relevant indicators - absence
of resolution of the Board, which is in the
alternative, would be of no consequence -
Governor is the competent authority
under Article 243-Q to take a final call
(Para 17)
B. Constitution of India, Art.243Q -
U.P. Municipal Corporation Act (2 of
1959)
-
Constitution
of
Municipal
Corporation/ Nagar Nigam - Merger of
Nagar Panchayat into Nagar Nigam -
without inviting objections prior to
inclusion of a Nagar Panchayat into
Nagar Nigam - Legality - Held - there is
no provision either in the Constitution &
in particular in Article 243Q or in the Act
of 1959 to put either the inhabitants or
the representatives of the merging local
bodies
to
notice
or
provide
any
opportunity to the merging local body
prior to merger - Absence of prior
opportunity
does
not
lead
to
any
absurdity, so as to enable Court to read
down the provision of prior opportunity
(Para 19)

C. Interpretation of statute - Casus
omissus & 'reading down' - Courts are
prohibited from filling the gaps in a
statute where the omission appears to be
deliberate & the omission does not lead to
any anomaly or absurdity as it would
amount
to
legislation,
which
is
not
intended (Para 20)

Held - Absence of opportunity to the residents /
representatives of the merging body prior to
merger of an area into municipal corporation
was a deliberate omission in the Act of 1959 -
since it was case of deliberate omission on the
part of legislature to provide a prior opportunity
before merger of a local body into municipal
corporation - Court refrained to import the
principles of "reading down" as that would be in
conflict with the legislative intent. (Para 20)

D. Constitution of India, Art.243Q -
Governor is empowered to declare the
character of an area as transitional area,
smaller urban area or larger urban area,
on the basis of population, density,
revenue
generated
from
the
area,
population employed in non-agricultural
operations, economic importance - there
is no embargo to include any area to
either
in
transitional
area
(Nagar
Panchayat)
or
smaller
urban
area
230 INDIAN LAW REPORTS ALLAHABAD SERIES
(Municipal Council) or larger Urban Area,
(Municipal Corporation / Nagar Nigam) -
No illegality in straight away merging
Gram Panchayat with a larger urban area
i.e. municipal corporation. (Para 18)

Dismissed. (E-4)

List of Cases cited:-

1. Champa Lal Vs St. of Raj.(2018) 16 SCC 356

2. St. of Maha & ors. Vs Jalgaon Municipal
Council & ors. (2003) 9 SCC 731

3. Sangeeta Singh Vs U.O.I (2005) 7 SCC 484

4. Danckwerts LJ in Artemion Vs Procopiou
(1965) 3 All ER 539

(Delivered by Hon'ble Pankaj Naqvi, J. &
Hon'ble Piyush Agrawal, J.)

The issues involved in both the
petitions are similar, hence are being
disposed of by a common judgment.
CMWP No. 8226 of 2020 is treated as a
leading petition.

1. The petitioner no.1 in CMWP No.
8226 of 2020 is Nagar Panchayat Jhunsi,
Prayagraj through its Chairman and
petitioner no.2 is the Chairman in her
individual capacity. A challenge is laid
by
them
to
the
notification
dated
31.12.2019
issued
by
the
State
Government merging Nagar Panchayat,
Jhunsi, Prayagraj into Nagar Nigam,
Prayagraj and for mandamus declaring
paragraphs- 3 and 5 of the Government
Order dated 3.4.2018 as unconstitutional
with a further prayer to not to interfere in
the
working of
petitioner
no.2
as
Chairman Nagar Panchayat, Jhunsi and
finally inviting the objections of the
Board of Nagar Panchayat, Jhunsi for
inclusion of Nagar Panchayat, Jhunsi in
Nagar Nigam Prayagraj.

The petitioners in the connected
petition are All India Panchayat Parishad, a
registered society, which claims to have
branches, all over India and the District
President of District Prayagraj, who also
claims himself to be as elected Pradhan of
Gram
Panchayat
Tendui,
Block-
Bahadurpur, Tehsil- Phulpur, Prayagraj.
They too have challenged the notification
dated 31.12.2019 including certain villages/
Gram Panchayats of Block Bahadurpur into
Nagar Nigam Prayagraj.

2. Heard Sri Shashi Nandan, learned
Senior Counsel assisted by Shri Udayan
Nandan, Sri R.K. Ojha, learned Senior
Counsel assisted by Sri Hardev Singh for
the petitioners in the respective petitions
and Sri Anoop Trivedi, learned Senior
Advocate, assisted by Sri Vibhu Rai for
Nagar Nigam Prayagraj and Ms. Shubhra
Singh, learned Standing Counsel for the
State.

3. Shri Shashi Nandan, learned Senior
Counsel assisted by Shri Udayan Nandan
for the petitioner in the leading petition
broadly raised following contentions:-

i) The impugned notification is
issued in purported exercise of the powers
conferred under Article 243Q of the
Constitution of India sought to be exercised
on
the
recommendation
of
the
Commissioner
under
the
Government
Order
dated
3.4.2018,
wherein
in
paragraph-4 thereof certain conditions have
been mentioned for proposed merger and in
paragraph-5 thereof it is provided that
either such a proposal must emerge from
the resolution of the Board, i.e, of Nagar
Nigam Prayagraj or the report of the
Commissioner but in the absence of any
proposal of the Board of Nagar Nigam
4 All. Nagar Panchayat Jhunsi Prayagraj & Anr. Vs. State of U.P. & Ors.
231
Prayagraj, conferment of alternate power
on the Commissioner to forward its report
is in blatant violation of the spirit of 74th
Constitutional Amendment.

ii) Learned Senior Counsel for
the petitioner while placing the provisions
of UP Municipal Corporation Act, 1959
(short "the Act of 1959") submitted that in
the entire scheme, no power is conferred on
the Commissioner but for clause (56) of
Section 2 which has no relevance to the
present case. It is thus submitted that the
recommendation of the Commissioner for
merger of Nagar Panchayat, Jhunsi in
Nagar Nigam Prayagraj is dehors the law
rendering
the
impugned
notification
invalid.

iii)
Article
243U
of
the
Constitution read with Section 10-A of the
U.P. Municipalities Act, 1916 (short "the
Act of 1916") confers security of tenure of
a municipality for a period of 5 years from
the date appointed for its meeting, which in
the present case was 27.12.2017, which can
only be brought to an end prior to expiry of
the said period only in the event of a
dissolution
but
after
a
reasonable
opportunity of being heard not resorted in
the present case.

iv) The provisions of Section 4 of
the Act of 1916 relating to inviting
objections prior to inclusion of a Gram
Panchayat into Nagar Panchayat should be
read down in case of inclusion of Nagar
Panchayat in Nagar Nigam.

4. Shri R.K. Ojha, learned Senior
Counsel assisted by Shri Hardev Singh for
the petitioners in the connected petition
while adopting the submission of Shri
Shashi Nandan also submitted that given
the Constitutional framework, post 74th
Amendment, a Gram Panchayat cannot
straight away be merged with a larger
urban area called municipal corporation. It
was also contended that with above merger
the inhabitants of the Gram Panchayat,
recipients of various social benefit schemes
of Government would be deprived of their
rights to receive benefits and that too
without any notice.

5. Sri Anoop Trivedi, the learned
Senior Counsel assisted by Sri Vibhu Rai
for Nagar Nigam, Prayagraj and Ms.
Shubhra Singh, the learned Standing
Counsel, while assiduously controverting
the above submissions contended that the
impugned notification does not violate the
spirit of 74th Amendment in any manner,
Commissioner being the delegate of the
State Government is empowered to make
his recommendation for merger which is
based on prescribed parameters, existence
of which is not disputed. He further
submitted that impugned notification does
not have the effect of dissolution as it
presupposes
persistent
default
and
incompetency
on
the
part
of
the
municipality in discharging its functions,
which is not the case. The provisions of
Section 4 of the Act of 1916 according to
Sri Trivedi cannot be read down. He further
submitted that under law there is no
prohibition in including an area of Gram
Panchayat into Nagar Nigam as long as
prescribed parameters are fulfilled and in
so far the contention of withdrawal of
beneficial scheme is concerned, same is of
no consequence as inhabitants of merging
bodies would be entitled to the beneficial
scheme operating in urban area.

6.

The
Constitution
(74th
Amendment)
brought
about
a
232 INDIAN LAW REPORTS ALLAHABAD SERIES
transcendental change in the Constitution
of the municipalities by providing a 3 tier
hierarchical structure of local bodies so as
to provide democratic decentralization and
greater accountability between citizens and
the State as being effective entities of selfgovernance.

7. Article 243-Q of the Constitution is
quoted 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"

Article
243-Q
provides
for
constitution of 3 tier municipalities in every
State with a Nagar Panchayat for a
transitional area, i.e, an area in transition
from a rural area to urban area; a municipal
council for smaller urban area and a
municipal corporation for larger urban area
in accordance with Part-IX-A.

8. Article 243-U of the Constitution
relates to duration of municipalities, which
reads as under:

"243-U.
Duration
of
Municipalities,
etc.--
(1)
Every
Municipality,
unless
sooner
dissolved
under any law for the time being in force,
shall continue for five years from the date
appointed for its first meeting and no
longer:

Provided that a Municipality shall
be given a reasonable opportunity of being
heard before its dissolution.

(2) No amendment of any law for
the time being in force shall have the effect
of causing dissolution of a Municipality at
any
level,
which
is
functioning
immediately before such amendment, till
the expiration of its duration specified in
clause (1).

(3) An election to constitute a
Municipality shall be completed,-

(a) before the expiry of its
duration specified in clause (1);
4 All. Nagar Panchayat Jhunsi Prayagraj & Anr. Vs. State of U.P. & Ors.
233

(b) before the expiration of a
period of six months from the date of its
dissolution:

Provided
that
where
the
remainder of the period for which the
dissolved
Municipality
would
have
continued is less than six months, it shall
not be necessary to hold any election under
this clause for constituting the Municipality
for such period.

(4) A Municipality constituted
upon the dissolution of a Municipality
before the expiration of its duration shall
continue only for the remainder of the
period for which the dissolved Municipality
would have continued under clause (1) had
it not been so dissolved."

Thus
every
municipality
is
entitled to continue for a period of 5 years
from the date appointed for its first meeting
and no longer. However, the proviso
provides a municipality can be subjected to
dissolution before expiry of above period
provided an opportunity is given to show
cause against proposed dissolution. Such
power is exercised only when there is a
persistent default or any incompetency on
the part of the Municipality to discharge its
functions, but after notice.

9. The provisions contained in PartIXA
of
the
Constitution
are
also
incorporated by way of amendments in
the Act of 1916 and that of 1959
respectively so as to bring them at par
with 74th Amendment. Section 3 of the
Act of 1916 relates to declaration etc, of
transitional area and smaller urban area
while Section 3-A relates to constitution
of municipality for every transitional area
and smaller urban area as provided under
Article 243-Q of the Constitution. Section
10-A of the Act of 1916 relates to the
term of municipality for a period of 5
years with effect from the date appointed
for its Ist meeting and no longer.
Similarly, Section 3 of the Act of 1959
provides for declaration of larger urban
area, i.e, Municipal Corporation as
provided under Article 243Q of the
Constitution, while Section 8 of the Act
of 1959 provides for the duration of term
of a Municipal Corporation, which too is
at
par
with
Article
243U
of
the
Constitution.

10. The entire thrust of the 74th
Amendment is on making municipalities
which includes a 3 tier structure at the
urban level, i.e, a Nagar Panchayat, a
municipal
council
and
a
municipal
corporation as effective institutions of
local self governance with full functional
and financial autonomy.

11 . The dominant purpose of all the
local bodies is to serve the needs of all
the
local
people
and
post
74th
amendment not to depend on the State
Government
for
their
day
to
day
functioning. A Finance Commission and
a State Election Commission have been
constituted
for
them
under
the
Constitution.
The
multiple
powers
conferred on the local bodies is with a
view to render efficient discharge of its
functions / services in the entire system
of local governance and to that extent
there is total devolution of power at the
grassroot level.

12. We in the light of above position
now examine the scope and extent of the
Government Order dated 3.4.2018 in order
to ascertain as to whether it impinges upon
the
autonomy
of
the
municipalities
234 INDIAN LAW REPORTS ALLAHABAD SERIES
guaranteed under the 74th Amendment?
The Government Order dated 3.4.2018 is
reproduced hereinbelow.

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fuxe ds xBu ds fy;s iw.kZ fd;k tkrk gS] rks
,slh fLFkfr esa fuEufyf[kr fcUnqvks dks
lfEefyr djrs gq, fudk; ds cksMZ }kjk ikfjr
izLrko vFkok e.Myk;qDr dh laLrqfr lfgr
lqLi"V izLrko 'kklu ds fopkjkFkZ miyC/k
djk;k tk;sxk%&

1⁄411⁄2 izLrkfor {ks= dh foxr tux.kuk
ds vk¡dMks ds vuqlkj tula[;kA

1⁄421⁄2 izLrkfor {ks= dh foxr tux.kuk
ds vk¡dMks ds vuqlkj tula[;k dk ?kUkRoA

1⁄431⁄2 uxj fuxe ds l`tu ds
QyLo:i vk; rFkk O;; esa fdruh o`f) gksxhA

1⁄441⁄2 lEcfU/kr {ks= ds foxr 03 o"kksZ
ds vk; rFkk O;; ds vkWdMks dk iw.kZ fooj.kA

1⁄451⁄2 izLrkfor {ks= esa dkSu&dkSu
ls 'kgjh xq.k fo|eku gSA

1⁄461⁄2 uxj fuxe l`tu ls mDr {ks=
ds fuokfl;ksa dks dkSu&dkSu lqfo/kk,a izkIr
gksaxhA

1⁄471⁄2 izLrkfor uxj fuxe esa fdruk
d`f"k {ks= iMrk gSA

1⁄481⁄2 izLrkfor {ks= dh dqy vkcknh ds
fdus izfr'kr yksxksa dk thou&;kiu d`f"k ij
vk/kkfjr gS rFkk fdrus izfr'kr vU; O;olk; ds
yksx gSaA
236 INDIAN LAW REPORTS ALLAHABAD SERIES

1⁄491⁄2 izLrkfor {ks= esa ;fn dksbZ jkT;
ekxZ] jk"Vah; jktekxZ vFkok mldk ckbZikl iM+rk
gks] rks mlds j[kj[kko dh opuc)rkA

1⁄4101⁄2 izLrkfor {ks= esa iM+us okyh yksd
fufgr lEifRr dh D;k O;oLFkk lqfuf'pr dh
tk;sxhA

1⁄4111⁄2 izLrkfor uxj fuxe {ks= dk ,d
lE;d~ ekufp=] ftlesa lfEefyr gksus okys
xzkeksa@etjksa dks Li"V :i ls n'kkZ;k x;k gks
rFkk yky js[kk ls lhek iznf'kZr djrs gq, lhek
js[kk ls vUnj dh vksj lVh gqbZ xkVk la[;kvksa dks
Hkh vafdr fd;k tk,A

1⁄4121⁄2 ekufp= ds vuq:i gh lhek
fu/kkZj.k gsrq lhek js[kk ls vUnj dh vksj lVh gqbZ
xkVk la[;kvks dk fn'kkoj fooj.k 1⁄4iwoZ] if'pe]
mRrj] nf{k.k1⁄2 fgUnh rFkk vaxzsth esa i`Fkd&i`Fkd
rhu&rhu izfr;ksa eas miyC/k djk;h tk;A lhek
fooj.k esa fn'kk okj xkVk la[;kvksa ds le{k muls
lEcfU/kr xzke@etjk ds uke dk Hkh mYys[k
fd;k tk,A"

13.

Clause-4
of
the
above
Government Order enumerates the criteria
evolved
by
the
state
government
compatible with the Constitutional spirit of
Article
243Q(2),
which
are
to
be
cumulatively considered before the merger
of any area into Municipality. The criteria
are as follows -

(i) At least 75% of the inhabitants
of the effected area must be involved in
non-agricultural operations.

(ii) Good connectivity with the
road

(iii)
Presence
of
following
indicators

(a) Police Station (b) Commercial
Centre (c) Schools and other educational
institutions (d) Status of Health facilities at
Health Centre, hospitals, (e) electricity
arrangements (f) branches of different
banks (g) Post Office (h) Public toilet (i)
Transport facility etc.

(iv) The merging area must have
a population of at least 3 lacs.

14.

Clause-5
of
the
above
Government Order further provides that
once the conditions indicated in paragraph4 are satisfied then either the resolution of
the Board or recommendation of the
Commissioner for inclusion of an area into
Nagar Nigam, i.e, Municipal Corporation
be forwarded to the State Government. The
report
by
the
Commissioner
must
incorporate parameters mentioned therein.

15. Commissioner may not have been
conferred with any power within the four
corners of the Act of 1959, so as to include
any area into the existing area of Nagar
Nigam, which otherwise is well within the
exclusive domain of the State Government
under Article 243Q. The Commissioner
rightly is not the approving authority for
the merger. He only submitted a report on
the basis of inputs as to the justification for
merger of Nagar Panchayat Jhunsi and
villages / Gram Panchayats of Block
Bahadurpur into Nagar Nigam Prayagraj on
the parameters indicated in the Government
Order.

16. The Apex Court in Champa Lal v.
State of Rajasthan, (2018) 16 SCC 356
held that under Article 243-Q(2), the
Governor is not free to notify areas in his
absolute discretion but is required to fix the
parameters necessary to determine as to
whether a particular area is a transitional
area or smaller urban area or larger urban
area with regard to parameters mentioned
4 All. Nagar Panchayat Jhunsi Prayagraj & Anr. Vs. State of U.P. & Ors.
237
in Article 243-Q (2). It is implicit that such
parameters must be uniform for the entire
State and that only after determination of
the parameters, various municipal bodies
contemplated under Article 243-Q (1)
could be constituted. The Apex Court in the
said case struck down the notification on
the premise that they purported to classify
municipalities only on the basis of
population and not the other parameters
required under Article 243-Q(2) of the
Constitution. We pointedly and repeatedly
inquired from the learned Senior Counsels
for the petitioners as to whether the
prescribed parameters of Article 243-Q (2)
of the Constitution and that of the
Government Order dated 3.4.2018 are
disputed or not and their answer was ''No',
which otherwise is also discernible from
their writ petitions and rejoinder affidavits
as there was no specific challenge to the
existence of prescribed parameters but for a
bare general denial, as they only stuck to
their stand that they ought to have been
heard before merger.

17. Governor is the competent
authority under Article 243-Q to take a
final call as to whether an area of a local
body is to be merged with another or not
and that decision is to be based on certain
materials. The power of the Governor is not
under challenge, which otherwise is an
executive power exercised with the aid and
advise of the council of ministers. The
State has its delegate in the form of a
Commissioner, who on the basis of inputs
supplied by the authorities submitted a
report recommending a merger. The
recommendation of the Commissioner
cannot be faulted, as he is not the final
arbiter to take a decision for merger. The
report of the Commissioner is based on
multiple relevant factors and the contention
on behalf of the petitioner that it is
based only on financial consideration, is
patently
misconceived.
Once
the
recommendation of the Commissioner for
merger is based on inputs supplied by
amongst others, the Mayor, Municipal
Commissioner,
Addl.
Municipal
Commissioner of the Nagar Nigam on
relevant
indicators,
thus
absence
of
resolution of the Board, which was in the
alternative, would be of no consequence.

18. We find from the provisions of
Article- 243-Q as contained in Part-IX-A of
the Constitution (The Municipalities) that
the Governor is empowered to declare the
character of an area as transitional area,
smaller urban area or larger urban area, i.e,
municipal corporation (Nagar Nigam) as
the case may be, on the basis of population,
density, revenue generated from the area,
population employed in non-agricultural
operations, economic importance or such
other factors as the Governor may deem fit.
Thus, there is no embargo to include any
area to either in transitional area (Nagar
Panchayat)
or
smaller
urban
area
(Municipal Council) or larger Urban Area,
(Municipal Corporation / Nagar Nigam).
Once the petitioners do not dispute the
existence of the parameters provided in
paragraph-5 of the government order, the
logical inference is that the merging area
has all the potential to merge with the area
of Nagar Nigam. If it were not so, it would
give rise to an anomalous situation as even
though the merging area may have the
potential of a would be urban area, it would
still be deprived of the scheme operating at
the urban level and continue to be governed
by the scheme operating at the merging
area. Why a merging area, which has all the
portents of becoming an important vehicle
in the growth of a Nagar Nigam be
238 INDIAN LAW REPORTS ALLAHABAD SERIES
deprived to reap fruits of a SMART CITY,
which Nagar Nigam Prayagraj is apprising
for?

19. Deprivation of benefits under
Government schemes operating at the
Gram Panchayat or at Nagar Panchayat
Level
upon
merger
with
Municipal
Corporation ipso facto would not affect the
economic status of the inhabitants as they
would be eligible under those government
schemes operating at urban level. The
Counter Affidavit on behalf of respondent
no.3 Nagar Nigam Prayagraj in connected
petition
annexes
a
letter
of
State
Government dated 5.2.2020, wherein a
decision has been taken that development
works
initiated
at
village
/
Gram
Panchayats of Block Bahadurpur, now
notified to be merged in Nagar Nigam
Prayagraj, consequent upon allocation of
funds in 2019-20 shall be continued. We
only reiterate what the Apex Court said in
State of Maharashtra and others Vs.
Jalgaon Municipal Council and others,
(2003) 9 SCC 731, wherein a similar plea
was rejected. Para-35 is quoted hereunder:

"So
far
as
the
objections
preferred by the Municipal Council
collectively
and
the
individual
239
objectors are concerned, no one has
alleged that any one of the factors
contemplated as relevant by Article 243-Q
proviso of the Constitution was absent or
non-existent. None has disputed the
correctness of the population figure as
totalled by the census. The contentions
raised are that the development works
initiated by the Municipal Council may be
adversely affected or that the taxes would
increase while the quantum of the State's
financial aid or grant may be reduced.
Though it is for the State Government to
apply its mind to the relevance and weight
of the objections preferred, still we may
note the submissions made by the learned
counsel
for
the
appellant
State
Government that a mere change in the
constitution of the local self-government
does not necessarily entail discontinuance
of development projects and there is no
reason to apprehend that they would not
be continued. A change in governance is
involved at every election though the
administration
continues
with
the
Municipal Council. At the time of an
election certain development works would
be pending in progress which would
naturally be taken over by the successor
Municipal Council. Just as any new
Municipal Council would take over the
ongoing
projects
initiated
by
the
predecessor Municipal Council so also a
Municipal Corporation newly brought
into being shall take over the continuing
projects
of
the
previous
Municipal
Council. Every change in mode of
governance needs some readjustments.
Need for switching over from a Municipal
Council to a Municipal Corporation mode
of administration is occasioned by growth
of population and prosperity in any
particular urban area. People share the
prosperity and so must be prepared to pay
the additional price by way of additional
taxes, submitted the learned counsel for
the State Government and we found
substance therein."

19. The State Government, while
issuing the impugned notification, has
taken
a
conscious
decision
on
the
parameters prescribed in the Government
Order dated 3.4.2018 to include the
respective area of Gram Panchayat/ Nagar
Panchayat into Nagar Nigam Prayagraj and
there being no provision either in the
Constitution and in particular in Article
243Q or in the Act of 1959 to put either the
4 All. Nagar Panchayat Jhunsi Prayagraj & Anr. Vs. State of U.P. & Ors.
239
inhabitants or the representatives of the
merging local bodies to notice, the logical
inference is that it was a case of causus
omissus. The Apex Court in Sangeeta
Singh v. U.O.I, (2005) 7 SCC 484
observed that the two principles of
construction appear to be well settled, i.e,
one relating to causus omissus and the
other of reading down the statute, while the
former cannot be supplied by the Court
except in a case of clear necessity and the
reasons therefor are to be found within the
4 corners of the statute, while the latter
should not be readily inferred and for that
purpose all the parts of a statute or sections
must be construed together and every
clause of a section should be construed
with reference to the context and other
clauses thereof so that the construction to
be put on a particular provision makes a
consistent enactment of the whole statute.
"An intention to produce an unreasonable
result", said Danckwerts LJ in Artemion
vs. Procopiou (1965) 3 All ER 539 is not to
be imputed to a statute if there is some
other construction available.

20. The Courts are prohibited from
filling the gaps in a statute where the
omission appears to be deliberate and the
omission does not lead to any anomaly or
absurdity
as
it
would
amount
to
legislation, which is not intended. Thus,
in the light of above interpretative
process absence of opportunity to the
residents / representatives of the merging
body prior to merger of an area into
municipal corporation was a deliberate
omission in the Act of 1959, as it was
open for the State Government while
enacting the Act of 1959 to have taken
note of the provisions of an earlier law in
Section 4 of the Act of 1916 for prior
notice. Once it's a case of deliberate
omission on the part of legislature to
provide a prior opportunity before merger
of
a
local
body
into
municipal
corporation, we would refrain to import
the principles of "reading down" as that
would be in conflict with the legislative
intent. The Constitution as amended by
the 74th Amendment does not provide
any opportunity to the merging local
body prior to merger and the only
opportunity contemplated is the one,
which is granted before dissolution of a
municipality under Article 243-U of the
Constitution. The State in its wisdom had
chosen to provide this opportunity to
local
bodies
merging
with
Nagar
Panchayat and Municipal Council under
Section 4 of the Act of 1916. The Act of
1959 is absolutely silent. Absence of
prior opportunity in the above backdrop
does not lead to any absurdity, so as to
enable us to read down the provision of
prior opportunity.

21. We before parting also take
judicial notice that the area of Jhunsi is
situate on G.T. Road (NH-19) across the
Shastri Bridge over the Ganges towards
Varanasi, which has almost merged with
the urban area of Prayagraj. Lawyers,
Doctors, Teachers and other professionals
are residing in the said area. Jhunsi has
residential colonies of Awas Vikas and that
of Prayagraj Development Authority and it
also takes the credit of various hospitals,
educational institutions and institutes of
national and international repute, such as
G.B. Pant Social Science Institute (a
constituent
college
of
Allahabad
University) , Harish Chandra Research
Institute (An Aided Institute of Department
of Atomic Energy, Government of India),
an institute dedicated to research in
mathematics and theoretical physics.
240 INDIAN LAW REPORTS ALLAHABAD SERIES

We in the ultimate analysis are of
the considered view that none of the pleas
raised by the petitioners has any force,
petitions are devoid of merit hence liable to
be dismissed.

The writ petitions are dismissed.
No orders as to cost.
----------
(2021)04ILR A240
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.04.2021

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ - C No. 11738 of 2020

All U.P. Stamp Vendors Assc., Fatehpur
 ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri N.C. Rajvanshi, Sri Vishesh Rajvanshi,
Sri Rajkishore Singh

Counsel for the Respondents:
C.S.C., Sri Kshitijn Shailendra, Sri Sumit
Kakkar

A. Constitution of India,1950 - Article 226
- Judicial Review - Scope - Personal action
vis-a-viz Public Interest Litigation - while
an individual action is adversarial, a
petition preferred in public interest is not -
while dealing with a PIL it may be
permissible for the Court to assume an
"inquisitorial" role in order to hold the
State liable and obliged to give effect to
the Constitution - whereas an individual
petition
must
proceed
on
material
gathered by the petitioner and challenge
as raised therein - On such a petition it is
neither open for the Court to undertake a
roving enquiry nor can the respondents be
required to produce material in order to
grant a relief - scope of the writ petition
cannot be expanded beyond the grounds
of challenge which are raised and the
reliefs sought in order to subserve some
larger public interest (Para 28)

B. Constitution of India,1950 - Articles 19
(1) (g), Article 19 (6) - Freedom to carry
on any occupation, trade or business -
reasonable restrictions - Held - Rights
conferred
by
Article
19
are
neither
absolute nor unfettered - they are entitled
to be exercised subject to just restrictions
that may be imposed by the Government
"in the interest of general public" - validity
of such restriction is to be tested on the
anvil of reasonableness - Court must
evaluate restrictions reasonableness from
the viewpoint of the community as a
whole & not standing in the shoes of the
person
upon
whom
that
restriction
operates - question to be posed would be
whether the restriction has come to be
imposed to preserve and protect the
larger interests of the community, its
social and economic welfare, public order
or health (Para 49)

C. Constitution of India,1950 - Articles 19
(1) (g), 21, 38 - Right to profit in trade -
Held - what the Constitution essentially
guarantees is the right to engage in a
profession, occupation, trade or business -
It neither proffers nor holds forth a
guarantee of a profit in that trade or
business - petitioner cannot place an
obligation upon the government to frame
a business model which may necessarily
guarantee a return or a profit in a
particular trade or business- A business or
a trade may become unprofitable or
unviable on account of various factors -
but vagaries of trade cannot be recognised
as constituting the infringement of a
fundamental right to carry on that trade
or business (Para 43, 45, 48)

D. Indian Stamp Act, 1899- Uttar Pradesh
Stamp Rules 1942, 161 - U.P. E- Stamping
Rules,
2013-
Discount/Commission
-
petitioners' prayer to fix commission as
per Rule 161 of the Rules, 1942 - Held -
Rule 161 prescribes a discount when a
licensed vendor purchases stamp from the