# Shakuntla Devi v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 101
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-12
- **Case number:** Writ C No. 14031 of 2022
- **Bench:** Manoj Kumar Gupta, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shakuntla-devi-v-state-of-u-p-ors-47932
- **Pages:** 24

## Headnote

A. Constitution of India - Article 226 -
Writ - Maintainability - Plea that writ is
premature, how far permissible - By
determining
and
delimitation
of
the
wards, the impugned notification paved
way for holding fresh election alongwith
election of other Municipalities - Effect -
Held,
fresh
exercise
undertaken
in
pursuance of the impugned notification
will have the effect of curtailing the
duration of Municipality she is heading,
she definitely has an actionable right in
presenti to challenge the notification and
the consequential exercise, to protect her
constitutional and statutory rights - The
petitioner cannot be made to wait till the
notification for holding the election is
published,
when
the
stand
of
the
respondents is clear and unambiguous in
relation
to
the
proposed
election
scheduled to be held in December, 2022 -
High
Court
found
no
force
in
the
contention that the petition is premature,
or is based on mere apprehension. (Para
14)
B. Constitution of India - Article 243-Q,
243-R - UP Municipalities Act, 1916 - Ss.
3, 9, 10-A and 333 - Fresh election of the
municipality
-
Five
year
tenure
of
municipalities, how far relevant - Held,
duration of the Municipality, elected on
13.3.2022 would be five years from the
date of its first meeting in terms of Article
243-U r/w S. 10-A of the UP Municipalities
102 INDIAN LAW REPORTS ALLAHABAD SERIES
Act - Present Municipality is entitled to
run its full duration of five years from the
date of its first meeting - The stand of the
St. respondents that its term would expire
in November, 2022 and therefore, exercise
for
holding
general
election
of
the
Municipality is being taken to constitute a
new Municipality in its place, cannot be
countenanced, being in teeth of the
constitutional mandate. (Para 58)
Writ petition allowed. (E-1)
List of Cases cited:-

## Text

_Characters 0–39,953 of 81,023. This is a partial read: ask again with offset=39953 for what follows._

11 All. Shakuntla Devi Vs. State of U.P.& Ors.
101

(वहन्दी अनुिाि ि रेखांकन न्यायािय द्वारा)

5- डनष्कषट

(क) उपर क्त विशिेिर् के संििण में यह
ध्यान में रखते हुए वक श्रवमक ने सेिाय िक के
साि केिि 9 ििण अथिाई सहायक के रूप में
कायण वकया ि 1998 से 2019, िब आिाडण पाररत
हुआ ि आि तक ऐसा नहीं माना िा सकता वक
इन 23 ििों तक श्रवमक ने क ई िी कायण या
र िगार अपने िीिन यापन के विए नहीं वकया
ह या इतने ज्यािा समय तक ि पुर्ण रूप से
बेर िगार रहा ह , तिा श्रवमक की आयु ितणमान
में 64 ििण का ह ना ि उपर क्त उल्लेस्खत विवध
का वसद्धांत वक ऐसी पररस्थिवत में पुनैंः वनयुस्क्त
ि पूर्ण बकाया िेतन का आिेश स्वतैंः नहीं ह
सकता है, अतैंः पुनैंः वनय स्क्त ि पूर्ण बकाया
िेतन के आिेश के थिान पर श्रवमक क
सेिाय िक द्वारा रूपये 3 िाख एक मुश्त
प्रवतकर के रूप में प्रिान करने का आिेश िेना
न्याय वचत ि न्यायसंगत रहेगा, ि प्रािी
(सेिाय िक) विपक्षी (श्रवमक) क इस वनर्णय की
वतवि से 8 सप्ताह के अन्दर उसके द्वारा सूवचत
ब क खाते में अन्तररत करेगा। अतैंः उक्त आिेश
ि वनिेश विया िाता है।

(ख) अतैंः ितणमान यावचका उपर क्त
वनिेश ं के साि आंवशक रूप से स्वीकार की
िाती है ि आक्षेवपत अिाडण विनांक 15.01.2021,
उपर क्त आिेश ि वनिेश ं के आधार पर
अनुत ि का आिेश संश वधत वकया िाता है।
----------
(2022) 11 ILRA 101
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.
Writ C No. 14031 of 2022

Shakuntla Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Man Bahadur Singh, Sri Rakesh Pande
(Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Giri, Sri Ashok
Kumar Tiwari, Sri Syed Ahmed Faizan, Sri
Ten Singh, Sri Zaheer Asghar, Sri S.F.A.
Naqvi (Sr. Advocate)

A. Constitution of India - Article 226 -
Writ - Maintainability - Plea that writ is
premature, how far permissible - By
determining
and
delimitation
of
the
wards, the impugned notification paved
way for holding fresh election alongwith
election of other Municipalities - Effect -
Held,
fresh
exercise
undertaken
in
pursuance of the impugned notification
will have the effect of curtailing the
duration of Municipality she is heading,
she definitely has an actionable right in
presenti to challenge the notification and
the consequential exercise, to protect her
constitutional and statutory rights - The
petitioner cannot be made to wait till the
notification for holding the election is
published,
when
the
stand
of
the
respondents is clear and unambiguous in
relation
to
the
proposed
election
scheduled to be held in December, 2022 -
High
Court
found
no
force
in
the
contention that the petition is premature,
or is based on mere apprehension. (Para
14)
B. Constitution of India - Article 243-Q,
243-R - UP Municipalities Act, 1916 - Ss.
3, 9, 10-A and 333 - Fresh election of the
municipality
-
Five
year
tenure
of
municipalities, how far relevant - Held,
duration of the Municipality, elected on
13.3.2022 would be five years from the
date of its first meeting in terms of Article
243-U r/w S. 10-A of the UP Municipalities
102 INDIAN LAW REPORTS ALLAHABAD SERIES
Act - Present Municipality is entitled to
run its full duration of five years from the
date of its first meeting - The stand of the
St. respondents that its term would expire
in November, 2022 and therefore, exercise
for
holding
general
election
of
the
Municipality is being taken to constitute a
new Municipality in its place, cannot be
countenanced, being in teeth of the
constitutional mandate. (Para 58)
Writ petition allowed. (E-1)
List of Cases cited:-
1. Olga Tellis & ors. Vs Bombay Municipal
Corporation & ors.; 1985 (3) SCC 545
2. Achhey Lal Vs V.C. Gorakhpur University;
1985 U.P.L.B.E.C. 38
3. St. of Maharashtra & anr. Vs The Jalgaon
Municipal Council; 2003 (9) SCC 731
4. Keshav Dev Kushwaha Vs St. of U.P. & ors.;
2014 (9) ADJ 536
5. St. of Maharashtra Vs Deep Narain Chavan;
(2002) 10 SCC 565
6. Nagar Palika Parishad Vs St. of U.P. & ors.;
2010 (3) ADJ 703
7. Smt. Mohini Sharma Vs St. of U.P; 2016 (10)
ADJ 221
8. Writ C No. 25471 of 2022; Nilesh Singh Vs St.
of U.P. & ors. decided on 08.09.2022
(Delivered by Hon'ble Manoj Kumar
Gupta, J.)

1.

The
petitioner
is
elected
Chairperson of Nagar Palika Parishad,
Siswan Bazar, District Maharajganj. She
has challenged the notification dated
26.04.2022 issued by respondent no.1, the
State Government, addressed to District
Magistrates of 67 districts, directing them
to initiate exercise for delimitation of wards
in 151 Municipalities, which have been
newly constituted or have undergone
extension of municipal limits since the last
general
election.
The
list
of
such
Municipalities is annexed alongwith the
impugned
notification.
Nagar
Palika
Parishad, Siswan Bazar is at serial no.22.
The petitioner has also prayed for a writ of
mandamus restraining the respondents from
initiating process for holding fresh election
of Nagar Palika Parishad, Siswan Bazar,
Maharajganj expected to be held by the end
of the year - 2022 and from interfering in
the functioning of the petitioner as
Chairperson of Nagar Palika Parishad,
Siswan Bazar until the expiry of the term of
Nagar
Palika
on
31.03.2027
unless
dissolved earlier.

2. The above reliefs have been
claimed in the backdrop of following facts:

2(1).
Siswan
Bazar,
District
Maharajganj was initially notified as a
Nagar Panchayat under Section 3 of the
U.P.
Town
Areas
Act,
1914
vide
notification dated 3.02.1953. It comprised
of 14 wards and the total population of the
Nagar Panchayat as per census of India
2011 was 20963. The last election of Nagar
Panchayat, Siswan Bazar was held on
12.12.2017, whereby the Chairperson and
14 Ward members were elected, followed
by constitution of the Nagar Panchayat.

2(2).
Later
on,
the
State
Government decided to create a new
Municipal Council (Nagar Palika Parishad)
in Siswan Bazar, Maharajganj by adding 22
revenue villages/ 17 Gram Panchayats in
the existing Nagar Panchayat area and
accordingly, issued a draft notification
dated 10.12.2019. It was followed by a
final notification dated 31.12.2019 issued
under clause (2) of Article 243-Q of the
Constitution of India read with Section 3
(2) of the U.P. Municipalities Act, 1916,
thereby including the area mentioned in
Schedule I of the notification in the
11 All. Shakuntla Devi Vs. State of U.P.& Ors.
103
transitional area of Nagar Panchayat
Siswan Bazar. Additionally, the transitional
area of Nagar Panchayat Siswan Bazar,
Maharajganj mentioned in Schedule II of
the notification was notified as a smaller
urban area (Municipal Council) to be
known as Municipal Council Siswan Bazar,
District Maharajganj.

2(3). It led to filing of P.I.L.
No.1822 of 2020 (Anoop Kumar Pathak
and another Vs. State of U.P. and others)
for direction (i) to the State respondents to
dissolve the erstwhile Nagar Panchayat
Siswan
Bazar,
Maharajganj;
(ii)
to
constitute the Municipal Council and Ward
Committees
and
(iii)
to
appoint
administrator in Municipal Council, Siswan
Bazar, District Maharajganj. The said writ
petition was disposed of by order dated
8.02.2021 with direction to the District
Magistrate, Maharajganj to hold election of
newly created Municipal Council, Siswan
Bazar, as early as possible, however not
later than three months from the date of
communication of the order. The operative
part of the order is as follows:-

"In the case at hand evidently
with the Notification dated 31.12.2019
Municipal Council, Siswan Bazar, District
Maharajganj is constituted. It was the
bounden duty of the District Magistrate as
early
as
possible
make
preliminary
arrangements for the holding of first
elections. Non holding of election for over
one year reflects
inaction and non
performance of statutory obligation, by the
District Magistrate.

In view whereof the District
Magistrate, Maharajganj is directed to
hold election of newly created Municipal
Council, Siswan Bazar, as early as
possible, however not later than three
months from the date of communication of
this order."

2(4). In pursuance of the above
direction, the State Government vide its
communication dated 2.06.2021 addressed
to District Magistrate, Maharajganj directed
him to appoint administrator and to initiate
process for constitution of newly created
Nagar Palika Parishad, Siswan Bazar by
holding
the
elections.
The
District
Magistrate vide order dated 8.06.2021
issued in purported exercise of power under
Section 333 of the U.P. Municipalities Act,
1916 constituted a Committee of five
persons to exercise the power and perform
the duties and functions of newly created
Nagar
Palika
Parishad
until
it
is
established.

2(5). At this stage, Smt. Ragni
Devi, the elected Chairperson of Nagar
Panchayat Siswan Bazar, challenged the
order of State Government dated 2.06.2021
and the consequential order of the District
Magistrate dated 8.06.2021 appointing
Committee to manage the affairs of the
newly created Nagar Palika Parishad by
filing Writ-C No.13629 of 2021 (Smt.
Ragni Devi Vs. State of U.P. and 3 others).
The said writ petition was dismissed by
order dated 9.08.2021, upholding both the
orders.

2(6). Smt. Ragni Devi aggrieved
by the order of this Court dated 8.02.2021
passed in the PIL and the order dated
9.08.2021 passed in her writ petition
approached the Supreme Court by filing
SLP No.4233 of 2021 and SLP No.13806
of 2021 respectively. Both the SLPs were
dismissed by the Supreme Court by
common order dated 17.9.2021. The
Supreme Court, while upholding the
decisions of this Court to hold first election
of
the
newly
constituted
Municipal
Council, again directed the authorities to:
"ensure that the elections for establishing
the newly constituted Municipal Council
Siswan Bazar, is conducted at the earliest
104 INDIAN LAW REPORTS ALLAHABAD SERIES
and, in any case, completed within two
months from today and report compliance
in that behalf.

The State must ensure that all
logistical support is provided to the State
Election Commission to ensure that the
elections are conducted by adhering to
appropriate Covid-19 protocol, as would be
in force at the relevant time.

If there is laxity on the part of the
State in ensuring completion of the
elections within two months from today, the
Chief Secretary of the State of Uttar
Pradesh shall be personally responsible in
that behalf."

2(7).
On
23.9.2021,
District
Magistrate,
Maharajganj
sent
a
communication to the Director, Lucknow in
regard to compliance of the order of Supreme
Court. While making reference to the letter of
State
Government
dated
21.9.2021
in
connection with the exercise for determining
the number of wards and delimitation, he was
requested to complete the said exercise under
intimation to him.

2(8). On 25.9.2021, the State
Government issued a notification inviting
objections and suggestion to the draft order
relating to delimitation as stipulated under
Section 11-B (2) of the U.P. Municipalities
Act, 1916. It was followed by a final
notification dated 7.12.2021, thereby dividing
the Nagar Palika into 25 Wards.

2(9). On 14.02.2022, the State
Election Commission, U.P. in consultation
with the State Government issued notification
notifying the election programme for electing
the chairperson and members of Nagar Palika
Parishad, Siswan Bazar. In pursuance thereof,
election was held on 13.03.2022 and results
were declared on 15.03.2022. The petitioner
was declared elected as Chairperson of Nagar
Palika Parishad, Siswan Bazar and a
certificate to the said effect was issued in her
favour by the Returning Officer dated
15.03.2022.
On
22.03.2022,
the
State
Election Commission notified the names of
chairperson and members, who were elected.
On 29.03.2022, the petitioner subscribed to
oath of office. On 1.04.2022, first meeting of
the newly constituted Nagar Palika was held.

2(10). On 26.04.2022, the State
Government
issued
the
impugned
communication
addressed
to
District
Magistrates of 57 districts on the subject
relating to delimitation of wards of the
newly constituted municipalities (83 Nagar
Panchayats, 2 Nagar Palika Parishads and
one Nagar Nigam). The said exercise was
also directed to be held in 66 municipalities
that had undergone change of boundaries/
extension of areas, being 66 in number (36
Nagar Pachayats + 21 Nagar Palika
Parishads + 9 Nagar Nigams). This took the
tally to 151 municipalities in all. The
delimitation in the above municipalities
was directed to be held on basis of census
of the year 2011. The proposal was to be
forwarded to the State Government by
5.5.2022 in the proforma prescribed by
Government Orders dated 4.04.2017 and
19.07.2017. Nagar Palika Parishad, Siswan
Bazar, Maharajganj is enlisted at serial
no.22 in the list annexed with the
communication and where the said exercise
was also to be held. The petitioner, who
was elected on 13.03.2022, apprehending
that the impugned communication is a step
towards holding fresh election and will
have the effect of curtailing her term of five
years has preferred the instant petition.

3. The State respondents as well as
the State Election Commission U.P. have
filed separate counter affidavits. In reply,
the petitioner has filed separate rejoinder
affidavits.

4. One Roshan Kumar has sought
impleadment, alleging that he proposes to
11 All. Shakuntla Devi Vs. State of U.P.& Ors.
105
contest the election to be held after
completion of the impugned exercise
relating to delimitation and is therefore
interested in opposing the writ petition.

5. We have heard Sri Rakesh Pande,
learned Senior Counsel assisted by Sri Man
Bahadur Singh for the petitioner, Sri
Ambrish Shukla, learned Additional Chief
Standing Counsel for respondents no.1, 3 &
4, Sri Ten Singh for the State Election
Commission U.P., Sri Ashok Kumar Tiwari,
for respondent no.5 i.e. Nagar Palika
Parishad through its Executive Officer and
Sri S.F.A. Naqvi, learned Senior Counsel
assisted by Sri Ashok Kumar Giri on behalf
of the intervenor - Roshan Kumar.

6(a). Sri Rakesh Pande, learned
Senior Counsel appearing on behalf of the
petitioner submitted that the term of a
Municipality under Article 243-U of the
Constitution and Section 10-A of the U.P.
Municipalities Act is five years from the
date appointed for its first meeting. The
first meeting of the newly constituted
Nagar Palika Parishad was held on
1.04.2022 and, therefore, its five years term
would expire on 31.03.2027. The impugned
notification
directing
the
District
Magistrates to initiate the exercise of
delimitation of wards of municipalities
which were newly created/limits extended
for holding fresh election, may be legal and
valid where elections have not been held
after
the
upgradation/extension
of
boundaries, but not in case of Nagar Palika
Parishad
Siswan
Bazar,
which
was
constituted as a Municipality for the first
time after the election dated 13.03.2022. It
was not a case of dissolution of an existing
Municipality and, therefore, the tenure will
be governed by clause (1) of Article 243-U
and not by clause (4) which applies in case
of premature dissolution on the occurrence
of certain contingencies envisaged under
Section 30 of the U.P. Municipalities Act,
1916.

6(b).
The
election
held
on
11.3.2021 was the first election of the
newly constituted Municipality and its
tenure of five years is sacrosanct by virtue
of Article 243-U of the Constitution read
with
Section
10-A
of
the
U.P.
Municipalities Act, 1916.

6(c). In support of the above
submission, he placed reliance on the
decision of this Court in Ragni Devi Vs.
State of U.P. and others as well as the
judgement of the Supreme Court in SLP
Nos.4233 of 2021 and 13806 of 2021 dated
17.09.2021, wherein this Court and the
Supreme Court have held that upon
creation of a new municipality i.e. Nagar
Palika Parishad Siswan Bazar, the existence
of predecessor municipality i.e. Nagar
Panchayat, Siswan Bazar had ceased. The
administrator appointed to manage the
affairs of the new municipality was under
mandate to hold election of newly created
municipality so that the charge is handed
over to it.

6(d). He further submitted that
before notifying fresh election of newly
constituted Nagar Palika Parishad, the
exercise relating to determination of
number of wards and their delimitation was
duly held and this fulfilled the requirement
of Section 11-A and 11-B of the U.P.
Municipalities Act, 1916 and Article 243-S
of the Constitution.

6(e). He further submitted that the
Election Commission harbouring under
some misconception issued the election
notification mistakenly using the term 'byeelection', but also simultaneously referring
to Section 13-G which unequivocally
relates to issuance of notifications for
general elections. The term of the newly
constituted Municipality is protected by
106 INDIAN LAW REPORTS ALLAHABAD SERIES
constitutional mandate and cannot be
shortened by wrong use of some word in
the election notification. The election held
in the past in which the petitioner was
elected as Chairperson of the newly
constituted
Municipality
was
for
all
practical purposes, a general election and
not a bye-election and consequently, the
provisions of Article 243-U (4) cannot be
pressed
to
curtail
the
constitutional
guarantee.

6(f). It is also urged that there
cannot be any estoppel or waiver of the
rights conferred by the Constitution.
Learned Senior Counsel for the petitioner
has placed reliance on the judgment of the
Supreme Court in Olga Tellis and others
Vs. Bombay Municipal Corporation and
others1 and a Division Bench judgment of
this Court in Achhey Lal Vs. V.C.
Gorakhpur University2.

7(i). Per contra, Sri Ambrish
Shukla, learned Additional Chief Standing
Counsel submitted that the election held on
13.03.2021 was a bye-election and not a
general election, as is also mentioned in the
election notification issued by the State
Election Commission dated 14.02.2022.
According to him, the aforesaid notification
when it refers to Section 13-G makes a
reference to the power of State Election
Commission to make provision with respect
to issuing of orders generally on all matters
relating to conduct of election (clause q). He
also submitted that the notification is
referable to Section 13-H of the U.P.
Municipalities Act 1916 relating to issuance
of election notification by State Election
Commission in respect of bye-election.

7(ii). The emphasis was on the fact
that the election in which the petitioner was
elected as Chairperson was a bye-election
and not a general election and consequently,
clause (iv) of Article 243-U of the
Constitution and Section 10-A (3) of the U.P.
Municipalities Act, 1916 will come into play
and the petitioner as well as other members
elected in pursuance of the aforesaid
notification shall continue in office only for
remainder of the period for which the
dissolved Municipality would have continued
under clause (1), had it not been so dissolved.
He also placed reliance on the order of
Supreme Court dated 23.11.2021 passed on
the application of State Election Commission
U.P. in SLP filed by Ragini Devi whereby the
Supreme Court had extended the time
prescribed earlier for holding the elections.

7(iii). He further placed reliance on
provisions of Section 3-A, Section 3-B (8),
Section 10-A and Section 151-A of the
Representation of People Act, 1950.

7(iv). He further submitted that the
petitioner does not have any cause of action
to file the instant petition. According to him,
what has been challenged as a notification, is
in fact only a communication sent by the
State Government to District Magistrates of
various districts where the Municipalities
have undergone upgradation/expansion of
boundaries to undertake the exercise of
delimitation of wards. It is not an election
notification, therefore, the challenge is
premature and based on mere apprehension.

8. Sri Ten Singh, learned counsel for
the State Election Commission U.P. as well
as Sri S.F.A. Naqvi, learned senior counsel
appearing for the intervenor, adopted the
arguments of Sri Ambrish Shukla, learned
Additional Chief Standing Counsel.

9. The questions which fall for our
consideration are: -

(i) Whether the writ petition is
premature, based on mere apprehension,
and is liable to be dismissed in limine?

(ii) What was the effect of the
notification dated 31.12.2019, issued by the
11 All. Shakuntla Devi Vs. State of U.P.& Ors.
107
Governor, in exercise of power under
Article 243-Q of the Constitution, read with
Section 3 of the U.P. Municipalities Act,
1916?

(iii) What was the status of the
Municipality constituted in pursuance of
the election held on 13.3.2022?

(iv) Whether the term of the
newly constituted Municipality is governed
by clause (1) of Article 243-U or clause (4)
of Article 243-U?

(v) What would be the effect of
use of word "bye election" in the election
notification dated 14.2.2022, issued by
State Election Commission, U.P. on the
status
of
the
newly
constituted
Municipality?

(vi) Whether the High Court, in
exercise of power under Article 226, can
grant any relief to the petitioner?

10. We first proceed to examine the
plea
relating
to
writ
petition being
premature
and
based
on
mere
apprehension. The impugned notification
dated 26.4.2021, issued by the State
Government, is addressed to the District
Magistrates of 57 districts wherein 151
existing municipalities have either been
reconstituted or their territorial limits
extended since the last general elections
held in the year 2017. It directs them to
initiate the exercise of determination and
delimitation of wards and supply the details
in prescribed format appended to the GOs
dated 4.4.2017 and 19.7.2017 by the
stipulated date, i.e. 5.5.2022. The said
exercise was to be held on basis of the data
of 2011 Census.

11. Section 11-A of the Act relates to
delimitation of wards and it reads thus: -

11A. Delimitation of wards.- (1)
For the purpose of election of members of
a municipality every municipal area shall
be divided into territorial constituencies to
be known as wards in such manner that the
population in each ward shall, so far as
practicable, be the same throughout the
municipal area.

(2)
Each
ward
shall
be
represented
by
one
member
in
the
municipality.

12. The exercise of delimitation of
wards as per the above provision is held for
the purpose of holding election of members
of a municipality. It is a step-in-aid towards
constitution of a municipality which under
Section 9 comprises of the elected
Chairperson (President); elected members;
ex-officio members; nominated members
and
Chairperson
of
the
Committees
established under Section 104 of the Act.

13. In paragraph nos. 35, 36 and 41 of
the writ petition, it is specifically asserted
by the petitioner that the above exercise of
determination and delimitation of wards
was intended to be held in the newly
created,
upgraded
and
extended
Municipalities, along with other urban local
bodies, whose terms are expiring by end of
the year 2022. It is also asserted that the
said exercise was not required to be
undertaken in respect of the petitioner's
municipality, the election of which was
held recently on 13.3.2022, after carrying
out the same exercise, i.e. determination of
wards and their delimitation. In paragraph
15 and 16 of the counter affidavit filed by
the State, it is asserted that the exercise
relating to determination of number of
wards and delimitation in respect of the
petitioner's
municipality
is
being
undertaken, as its term is expiring in
December, 2022 and consequently, fresh
elections are to be held. Same stand has
been
taken
by
the
State
Election
108 INDIAN LAW REPORTS ALLAHABAD SERIES
Commission, U.P. in the counter affidavit
filed by it.

14. It is evidently clear that the
impugned exercise for determination of
wards and their delimitation in respect of
Nagar Palika Parishad, Siswan Bazar,
Maharajganj, was undertaken in pursuance
of the impugned notification to pave way
for holding of fresh elections in December,
2022,
when
elections
of
other
municipalities is also scheduled to be held.
As the specific case of the petitioner is that
its term is upto 31.3.2027 and fresh
exercise undertaken in pursuance of the
impugned notification will have the effect
of curtailing the duration of Municipality
she is heading, she definitely has an
actionable right in presenti to challenge the
notification and the consequential exercise,
to protect her constitutional and statutory
rights. The petitioner cannot be made to
wait till the notification for holding the
election is published, when the stand of the
respondents is clear and unambiguous in
relation to the proposed election scheduled
to be held in December, 2022. We thus find
no force in the contention that the petition
is premature, or is based on mere
apprehension.

15. We now proceed to examine the
issues arising in the case on merits.

16. A bird's-eye view of the relevant
provisions of the Constitution, particularly
Part IX-A, inserted by the Constitution
(Seventy Fourth Amendment) Act, 1992,
and cognate enactments which deal with
Municipalities, will help in understanding
and analysing the issues at hand. Part IX-A
came into effect from 1.6.1993. It defines
"Municipality" under Article 243-P(e), as
an
institution
of
self-government
constituted under Article 243-Q.

17.

Article
243-Q
relates
to
Constitution of Municipalities and reads as
follows: -

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
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.

(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.

18. Article 243-Q envisages three
levels of Municipalities to administer (i) a
transitional area, that is to say an area in
transition from a rural area to an urban
11 All. Shakuntla Devi Vs. State of U.P.& Ors.
109
area, to be known as a Nagar Panchayat;
(ii) a smaller urban area, to be known as a
Municipal Council and (iii) a larger urban
area, i.e. a Municipal Corporation. Article
243-Q(2) defines these to mean 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.

19. In order to carry out the mandate
of
the
Constitution
(Seventy
Fourth
Amendment)
Act,
1992,
the
U.P.
Municipalities Act, 1916 was amended.
Section 3 of the Act provides for the
Declaration etc. of the transitional areas
and smaller urban areas and reads thus: -

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 243-Q 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.

(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.

(3) The notifications referred to
in sub-sections (1) and (2)] shall be subject
to the condition of the notification being
issued after the previous publication
required by Section 4 and notwithstanding
anything in this section, no area which is,
or is part of, a cantonment shall be
declared to be a transitional area or a
smaller urban area or be included therein
under this section.

20. Section 3 is similar provision in
the U.P. Municipal Corporation Act, 1957
and it reads thus: -

Section 3 - Declaration of larger
urban area -

(1) Any area specified by the
Governor in a notification under Clause (2)
of Article 243-Q of the Constitution with
such limits as are specified therein to be
larger urban area, shall be known as a
City, by such name as he may specify.

(2) Where, by a subsequent
notification under Clause (2) of Article
243-Q of the Constitution the Governor
includes any area in a city, such area shall
thereby become subject to all notifications,
rules, regulations, bye-laws, orders and
directions issued or made under this or any
other enactment and in force in the city at
the
time
immediately
preceding
the
inclusion of such area and all taxes, fees
and charges imposed under this Act, shall
be and continue to be levied and collected
in the aforesaid area.

21. In the case at hand, the State
Government
by
notification
dated
31.12.2019, included the areas mentioned
in Schedule-I of the Notification in the
transitional area of Nagar Panchayat,
Siswan
Bazar,
Maharajganj,
and
simultaneously upgraded Nagar Panchayat,
Siswan Bazar, Maharajganj to the level of a
Municipal Council, i.e. a smaller urban area
comprising of territorial area mentioned in
Schedule-II of the Notification. It is
referable to the constitutional power vested
in the Governor under Article 243-Q of the
Constitution and Section 3 of the U.P.
Municipalities Act, 1961.
110 INDIAN LAW REPORTS ALLAHABAD SERIES

22. The aforesaid exercise was called
in question by Ragini Devi, the then
Chairperson of Nagar Panchayat by way of
a writ petition3 before this Court, on the
ground that she was elected on 1.12.2017
and the notification issued by the State
Government dated 31.12.2019 had the
effect of cutting short her tenure of five
years. She also called in question the order
passed by the State Government dated
2.6.2021 and the consequential order of the
District
Magistrate
dated
8.6.2021,
appointing a Committee to manage the
affairs of newly constituted Nagar Palika
Parishad. However, the challenge was
repelled by this Court by its order dated
9.8.2021,
holding
that
the
exercise
undertaken in pursuance of notification
issued by the State Government was
referable to Section 3(1) of the Act,
whereunder as noted above, the Governor
is vested with the power to issue
notification in terms of clause (2) of Article
243-Q of the Constitution, declaring the
transitional area of a Nagar Panchayat as a
Municipal Council (smaller urban area)
with such limits, as are specified therein.
As a necessary corollary thereof, it was
held that Section 333 of the Act would
come into play and the Municipal Council
which was newly created, would be
managed by the District Magistrate, or
other officer, or committee, or authority
appointed by him in this behalf, until a
Municipality is established, after holding of
first elections thereof.

23. Section 333 of the Act is
reproduced for ready reference: -

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 :

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.

24. The relevant part from the
judgment of this Court dated 9.8.2021 in
Writ Petition No. 13629 of 2021 (Smt.
Ragini Devi vs. State of U.P.) is
reproduced below: -

As regards Section 333-A, the
same deals with the consequence of the
declaration of smaller urban area with
the notification issued under Section 3(1)
of the Act, 1916. Section 333 of the Act,
1916 makes provision for the transitional
period and confers the power on the
District Magistrate, or other officer, or
Committee or authority appointed by him
in this behalf, to exercise the power and
perform the duties & functions of the
Municipality, till an elected body takes
over.

25. The Supreme Court while
dismissing the SLP4 filed by Ragini Devi,
endorsed the finding that although the
notification dated 31.12.2019 refers to
Section 3(2) of the U.P. Municipalities Act,
1916, but as a matter of fact, thereby the
area in question had been upgraded to a
Municipal Council and thus, the erstwhile
Nagar Panchayat had ceased to exist. The
11 All. Shakuntla Devi Vs. State of U.P.& Ors.
111
relevant observations made in this behalf
by the Supreme Court are as follows: -

The argument though attractive,
at the first blush, clearly overlooks the
dispensation provided for under Article
243-Q of the Constitution of India. It refers
to municipalities or Municipal Council
areas of different types such as Nagar
Panchayat,
Municipal
Council
and
Municipal Corporation, depending on the
area and other factors to establish such an
entity. Although, the notification refers to
Section
3(2)
of
the
Uttar
Pradesh
Municipalities Act, 1916 (for short, "the
1916 Act") the fact remains that the area in
question has been upgraded to Municipal
Council area. It is, therefore, not a case of
expansion of Nagar Panchayat area as is
sought to be projected by the petitioner(s).

Perhaps, keeping that in mind in
another case, the High Court vide order
dated 09.08.2021 in Writ Petition(C) No.
13629 of 2021 rejected the claim of the
petitioner(s) therein on the finding that the
Nagar
Panchayat
of
which
the
petitioner(s)'
claim
to
be
elected
representative had ceased to be in existence
with the creation of Municipal Council
(Nagar Palika Parishad) as defined in subSection (9-B) of Section 2 of the 1916, Act
and with the creation of new municipality
by virtue of the stated notification, the
provision of Section 333 of the 1916 Act
would follow. That view is a possible view.

26.

The
Supreme
Court
also
deprecated inaction on part of the State in
not holding fresh election for the newly
created Municipal Council, Siswan Bazar,
Maharajganj in the time frame prescribed
by this Court in PIL No. 1822 of 2020. The
Supreme Court issued fresh direction to the
State Election Commission, U.P. to ensure
holding of elections for establishing the
newly
constituted
Municipal
Council,
Siswan Bazar, Maharajganj at the earliest,
however not later than two months from the
date of the order.

27. There are several precedents on
the subject, which take the same view. We
proceed to note some of those to have a
better
understanding
of
the
legal
implications of exercise of power under
Article 243-Q of the Constitution.

28. In State of Maharashtra and
Another vs. The Jalgaon Municipal
Council5, Supreme Court considered the
provisions of the Constitution (Seventy
Fourth Amendment) Act, 1992 and held
that the effect of exercise of power under
Article 243-Q is that the predecessor
Municipality
ceases
to
exist.
In
consequence it was held that Article 243-U
which guarantees a fixed duration of five
years to a Municipality, cannot be applied
to 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. In line with the said reasoning,
it was also held that the statutory provisions
do not contemplate a situation where the
erstwhile Municipality would continue to
exist, as it would result in anomaly and
confusion. The relevant part from the
judgment is reproduced below: -

21. Having heard the learned
Counsel for the parties at length on this
aspect we are of the opinion that the said
hiatus is an unavoidable event which must
take place in the process of conversion of
Municipal Council into a Municipal
Corporation. Reliance on Article 243-U by
the learned counsel for the respondents in
this context is misconceived. The use of
112 INDIAN LAW REPORTS ALLAHABAD SERIES
expression 'a municipality' in sub-Article
(3) of Article 243-U in the context and in
the setting in which it is employed 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.
Article 243-U cannot be applied to 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. Article 243-U(3) cannot be
pressed into service to base a submission
on that an election to constitute a
municipal corporation is required to be
completed before the expiry of duration of a
municipal council.

The constitution of Municipal
Corporation would require notification of
larger
urban
area
and
a
Municipal
Corporation to govern it. The area shall have
to be divided into wards with the number of
corporators specified and reservations made.
The Corporation would need to nominate
councillors. The territorial limits may need to
be altered. The State Election Commission
cannot conduct election without specifying
numbers and boundaries of wards. New
rules, bye-laws etc. shall need to be framed
and municipal tax structure may need to be
recast. The statutory provisions do not
contemplate a situation where the same area
may be called a smaller and larger area
simultaneously and process of constitution of
Municipal Corporation being commenced
and completed though the Municipal Council
continues to exist. Such an action would
result in anomaly and confusion if not chaos.

29. Again, a Division Bench of this
Court in Keshav Dev Kushwaha vs. State
of
U.P.
and
Others6,
relying
on
observations made by the Supreme Court in
State of Maharashtra vs. Deep Narain
Chavan7, observed as follows: -

"At the outset, it must be noted
that the petition in question is not one
which is filed in the public interest. The
petition is by an elected member of the
Nagar
Palika
Parishad,
Firozabad.
Elections to the Nagar Palika Parishad
were held on 26 June 2012 and the
petitioner claims an indefeasible right to
hold office for a period of five years. In
fact, that is the basis on which prayer (iii)
seeks a mandamus to the respondents not to
curtail the term of the Nagar Palika
Parishad and to allow the petitioner and
other elected members to continue to
perform their duties. Such a submission
cannot be countenanced. The elected
members of the Nagar Palika Parishad
had, in fact, resolved on 20 October 2011
to recommend the constitution of a
municipal corporation. Be that as it may,
there is no merit in the plea of the
petitioner that elected members of the
erstwhile Nagar Palika Parishad must
continue until their term of five years
comes to an end.