# Nilesh Singh v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 308
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-08
- **Case number:** Writ C No. 25471 of 2022
- **Bench:** Manoj Kumar Gupta, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nilesh-singh-v-state-of-u-p-ors-47718
- **Pages:** 5

## Headnote

Constitution of India, 1950 - Articles 243E
&
243-Q(2)
-
Uttar
Pradesh
Municipalities Act, 1916- Sections 3 (1),
4(1) - Constitution of Municipalities -
Nagar Panchayat for an area in transition
from a rural area to an urban area -
Petitioner
challenged
the
notification
notifying the local limits of a transitional
area & with a prayer to restrain the
respondents
from
interfering
in
the
functioning of the petitioner as elected
Gram Pradhan - Held - Under Section 3A(2) of the Act, every Nagar Panchayat or
Municipal Council constituted under subsection (1) is a body corporate - with the
issuance of the notification, an entirely
new body in the name of Nagar Panchayat
- Haisar Bazar came into existence, which
has a separate and distinct identity from
its predecessor i.e., the Gram Panchayats
whose territories have been merged in
constituting the Nagar Panchayat - Gram
Panchayat of which the petitioner was
Pradhan, had ceased to exist - Petitioner
is left with no subsisting right to continue
to function as Pradhan or to resist holding
of election of the newly constituted Nagar
Panchayat (Para 9, 10)

Dismissed. (E-5)

List of Cases cited:

## Text

308 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction under Article 226 of the
Constitution of India.

22. Resultantly, the instant writ
petition, being devoid of merits and
misconceived, is dismissed with no order as
to the cost.
----------
(2022) 10 ILRA 308
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.09.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Writ C No. 25471 of 2022

Nilesh Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bharat Kishore Srivastava, Sri Shyam
Mohan Singh, Sri Janardan Yadav

Counsel for the Respondents:
C.S.C.

Constitution of India, 1950 - Articles 243E
&
243-Q(2)
-
Uttar
Pradesh
Municipalities Act, 1916- Sections 3 (1),
4(1) - Constitution of Municipalities -
Nagar Panchayat for an area in transition
from a rural area to an urban area -
Petitioner
challenged
the
notification
notifying the local limits of a transitional
area & with a prayer to restrain the
respondents
from
interfering
in
the
functioning of the petitioner as elected
Gram Pradhan - Held - Under Section 3A(2) of the Act, every Nagar Panchayat or
Municipal Council constituted under subsection (1) is a body corporate - with the
issuance of the notification, an entirely
new body in the name of Nagar Panchayat
- Haisar Bazar came into existence, which
has a separate and distinct identity from
its predecessor i.e., the Gram Panchayats
whose territories have been merged in
constituting the Nagar Panchayat - Gram
Panchayat of which the petitioner was
Pradhan, had ceased to exist - Petitioner
is left with no subsisting right to continue
to function as Pradhan or to resist holding
of election of the newly constituted Nagar
Panchayat (Para 9, 10)

Dismissed. (E-5)

List of Cases cited:

1. Smt. Mohini Sharma Vs. St. of U.P., 2016 (10)
ADJ 221

2. Nagar Palika Parishad & ors. Vs St. of U.P. &
ors., 2010 (3) ADJ 703

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Ram Manohar Narayan Mishra, J.)

1. The instant petition is directed
against the notification dated 10.12.2020
issued under Section 4(1) of the Uttar
Pradesh
Municipalities
Act,
1916
(hereinafter referred as 'the Act') and the
notification dated 22.07.2022 issued under
Section 3 (1) of the Act read with Article
243-Q of the Constitution of India. The
petitioner has also prayed for a mandamus
directing the respondents not to initiate
exercise for fresh election of the newly
constituted Nagar Palika and also restrain
the respondents from interfering in the
functioning of the petitioner as elected
Gram Pradhan of Village Ahara, District
Sant
Kabir
Nagar
for
period
upto
3.05.2026.

2. The case of the petitioner is that he
was elected as Gram Pradhan of Village
Ahara,
Block
Haisar
Bazar,
Tehsil
Dhanghatta, District Sant Kabir Nagar on
10 All. Nilesh Singh Vs. State of U.P. & Ors.
309
3.05.2021. His term of five years as Gram
Pradhan would expire on 3.05.2026 in view
of Article 243-E of the Constitution of
India. However, by impugned notification,
a transitional area has been constituted in
the name of Nagar Panchayat, Haisar
Bazar, District Sant Kabir Nagar. It
includes the area of Gram Panchayat
Bahara as well, of which the petitioner is
Gram Pradhan, and now the respondents
are intending to hold election of Nagar
Panchayat, Haisar Bazar. As a result, the
petitioner will automatically be ousted from
his office of Pradhan of Gram Panchayat
Ahara.

3. By impugned notification issued
under clause (2) of Article 243-Q of the
Constitution of India read with Section 3 of
the Act, the Governor has notified the local
limits of a transitional area by the name of
Haisar Bazar. Article 243-Q is reproduced
below :-

"243-Q.
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."

4. Section 3(1) of the Act, relevant for
our purpose is also produced below :-

"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 243Q 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."

5. Constitution defines a 'Panchayat'
under Article 243(d) as an institution of
self-government constituted under Article
243-B, for the rural areas. Article 243-E
mandates that every Panchyat, 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.

6. Similarly under Section 12 of the
U.P. Panchayat Raj Act, 1947, the term of
the Gram Panchayat is five years. Our
Constitution is a living document. The
Parliament while introducing the 74th
Amendment, 1992 conferring constitutional
status to institutions of self-Government
like Panchayats and Municipalities, was
310 INDIAN LAW REPORTS ALLAHABAD SERIES
alive of the reality that urbanisation is
making inroads in the rural areas. The
constitutional
scheme
envisages
constitution of a Nagar Panchayat for a
transitional area that is to say, an area in
transition from a rural area to an urban
area; Municipal Council for a smaller urban
area; and Municipal Corporation for a
larger urban area.

7. In Smt. Mohini Sharma vs. State
of U.P., 2016 (10) ADJ 221, a similar issue
arose for consideration before this Court. It
was answered as follows :-

"18. A bare perusal of the Section
5 of U.P. Municipalities Act, 1916, would
go to show that whereby a notification
referred to in sub-section (2) of Section 3
the Governor includes any area in a
transitional area or smaller urban area,
such area shall thereby become subject to
all notifications, rules, regulations, byelaws, orders, directions, issued or made
under this or any other enactment and in
force throughout the transitional area or
smaller urban area, at the time immediately
preceding the inclusion of the area. Thus
the affairs of the same will have to be
governed under the provisions of U.P.
Municipalities Act, 1916 and it may be true
that Pradhan in question has been elected
for a period of five years but once the very
identity of the Gram Panchayat in question
has been lost on account of inclusion of
such area, then the provisions of U.P.
Panchayat Raj Act, 1947, would not at all
operate and same will have to be governed
under
the
provisions
of
the
U.P.
Municipalities Act, 1916. Any other view
would tantamount to diluting the provisions
of Section 5 of U.P. Municipalities Act,
1916.

19. Apex Court in the case of
State of Maharashtra Vs. Deep Narain
Chavan, 2002 (10) SCC 565, while
considering the arguments advanced that
once Municipal Council is constituted, then
its duration shall be five years in
accordance with constitutional provisions
contained in Article 243-Q, has ruled while
considering the expression "unless sooner
dissolved under any law for the time being
in force", that the moment Corporation is
constituted in accordance with law, the
elected Municipal Council would cease to
function.

20. Article 243-E deals with
duration of Panchayat, Article 243-U deals
with duration of Municipalities and both
the constitutional provisions share in
common the expression "unless sooner
dissolved under any law for the time being
in force". Once Governor takes a call for
constitution of municipality in exercise of
authority conferred under the constitution
namely Article 243-Q that specifically
refers to three type of municipalities i.e.
Nagar Panchayat for transitional area, a
Municipal Council for a smaller urban
area and Municipal Corporation for a
larger urban area, the moment declaration
is made under Article 243-Q read with
Section 3 of the U.P. Municipalities Act,
1916, by the State Government, then the
said municipal body would be a sovereign
body having both constitutional and
statutory status. As already noted in the
earlier
part
of
the
judgement,
the
constitutional
as
well
as
statutory
provisions
pertaining
to
'Panchayats'
would go to show that object of Part IX of
the Constitution was to introduce the
panchayat system at grass root level and
strengthen the panchayat system by giving
uniform constitutional vibrant units of
administration in the rural area so that
there can be rapid implementation of rural
development sector. Once there is complete
transformation from rural area to urban
10 All. Nilesh Singh Vs. State of U.P. & Ors.
311
area having regard to population of area,
the density of population therein, the
revenue
generated
from
local
administration,
the
percentage
of
employment in non-agricultural activities,
the economic importance and other factors,
made by the State Government, then the
said area is denoted in the notification
would be out from the purview of Part IX of
the Constitution and the provisions of U.P.
Panchayat Raj Act, 1947 and the affairs of
the said area treating the same to be urban
area would be covered by the provisions of
Part IX A of Constitution alongwith the
provisions of U.P. Municipalities Act,
1916."

8. Again, while interpreting Article
243-Q, which preserves five years tenure of
Municipality, it has been held by this Court
in Nagar Palika Parishad and others Vs.
State of U.P. and others, 2010 (3) ADJ
703 that the tenure contemplated under the
said provision will not apply where an area
of one description is converted into an area
of another description. The dissolution of
municipality of lower description was held
to be a fate accompli. The relevant portion
is extracted below :-

"Apart from what is said above,
Article 243U of the Constitution of India
suggests and means the duration of the
same type of Municipality coming to an end
and
the
same
type
of
successor
Municipality taking over as a consequence
of term of the previous Municipality coming
to an end either prior to the period of 5
years or at the end of 5 years. In other
words Article 243U cannot be pressed into
service in a case where the area of one
description is converted into an area of
another description and one description of
Municipality is ceased by constituting
another
Municipality
of
a
better
description, that is to say that where the
dissolution is fait accompli and the
Municipality cannot be revived as it was
before, the same cannot be termed a
dissolution as envisaged under Article
243U and in such an event the provisions of
Article 243U are not at all violated if an
Administrator is appointed under Section
8-AA . "

9. Under Section 3-A(2) of the Act,
every Nagar Panchayat or Municipal
Council constituted under sub-section (1) is
a body corporate. Thus, with the issuance
of the impugned notification, an entirely
new body in the name of Nagar Panchayat -
Haisar Bazar has come into existence. It
has a separate and distinct identity from its
predecessor i.e., the Gram Panchayats
whose territories have been merged in
constituting the Nagar Panchayat. The
provision of Article 243-E and Section 12
of the U.P. Panchayat Raj Act cannot be
read
in
isolation
but
harmoniously,
alongwith the other provisions of the
Constitution and the Act. Under Section
333 of the Act, the District Magistrate has
been invested with power to perform the
functions
and
duties
of
the
newly
constituted Municipality until the holding
of first election. Section 333 is quoted
below :-

"333.
Exercise
by
District
Magistrate
of
Municipality's
power
pending establishment of Municipality.-
When a new municipality is created under
this Act, the District Magistrate, or other
officer,
or
committee,
or
authority
appointed by him in this behalf, may until a
Municipality is established, exercise the
powers and perform the duties and
functions of the Municipality, and, he or it
shall, for the purposes, aforesaid be
deemed to be the Municipality.
312 INDIAN LAW REPORTS ALLAHABAD SERIES

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."

10. The Gram Panchayat of which the
petitioner was Pradhan, had ceased to exist
in view of the constitutional scheme and
the provisions of the Act. The petitioner is
left with no subsisting right to continue to
function as Pradhan or to resist holding of
election of the newly constituted Nagar
Panchayat.

11. The petition lacks merit and is
dismissed.
----------
(2022) 10 ILRA 312
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE JAYANT BANERJI, J.

Appeal U/s 37 of Arbitration & Conciliation Act
1996 No. 202 of 2022

R.M. U.P.S.R.T.C. Varanasi ...Appellant
Versus
M/s Krishna Bros. ...Opp. Party

Counsel for the Appellant:
Sri Vivek Saran

Counsel for the Opp. Party:
Sri Ashish Kumar Dubey, Sri Rajesh Chandra
Dwivedi

Civil Law - Arbitration Act, 1996 -
Section 9-Appeal against order allowing
application of the Respondent filed u/s 9 of
the Act, 1996-work order issued by the
Appellant in favour of Respondent for
supply of mineral water-security depositedwork order for limited period-Respondent
supplied goods but sum of Rs. 20, 90,744/-
was
due-Appeallant
declined
to
payRespondent approached commercial court
by
an
application
for
directing
the
Appellant to make payment plus interestwhile exercising power u/s 9-Court cannot
decide the claim on merits-court below
entered into merits and held deductions
made
by
the
Appellant
were
not
permissible under the contract-impugned
order set aside.

Appeal allowed. (E-9)
(Delivered by Hon'ble Manoj Kumar
Gupta, J. & Hon'ble Jayant Banerji, J.)

1. Heard Sri Vivek Saran, learned
counsel for the appellant and Sri Rajesh
Chandra Dwivedi for the respondent. With
their consent, the instant appeal is being
disposed of finally at this stage itself.

2. The instant appeal is directed
against the order dated 17.5.2022, passed
by Presiding Officer, Commercial Court,
Varanasi, in Arbitration Misc. Case No.
4/2022, allowing the application of the
respondent, purportedly filed under Section
9 of the Arbitration and Conciliation Act,
1996. The appellant has been directed to
pay a sum of Rs. 12,72,783/- to the
respondent within one month, along with
interest @ 7% per annum, since 24.1.2022,
by
way
of
damages.
Thereby
the
application under Section 9 is "decreed
with cost".

3. The brief facts of the case are that a
work order dated 17.12.2018 was issued by
the appellant in favour of the respondent
for supply of bottles of mineral water. The
respondent had deposited Rs. 30,000/- as
security money, in terms of the work order.
The work order was for limited period, till