# Smt. Sushma Devi & Ors v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 619
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-01
- **Case number:** Writ C No. 45366 of 2017
- **Bench:** Mrs. Sunita Agarwal, Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sushma-devi-ors-v-state-of-u-p-ors-46664
- **Pages:** 7

## Headnote

A. Municipal Law - Executive decision - Scope
of
Judicial
review
-Interference,
when
warranted - Held, it is settled principle that
within the limited scope of the judicial review,
the decision of the Executives cannot be
overturned on the basis of that being an
incorrect decision - The Court will be slow to
interfere
in
such
matters
relating
to
administrative functions unless decision is
tainted by any vulnerability like illegality,
irrationality and procedural impropriety -
Satisfaction of the authority can be interfered
with only if the satisfaction recorded is
demonstratively
perverse
based
on
no
evidence, misreading of evidence or which a
reasonable man could not form or that the
person
concerned
was
not
given
due
opportunity resulting in prejudice. (Para 14 and
15)
B. Municipal Law - Constitution of India -
Article 243-Q and 243-X - UP Municipalities
Act, 1916 - S. 3(2) - GO dated 10.11.2014 -
Upgradation of the Nagar Panchayat to Nagar
Palika
Parishad
-
Relevant
criteria
-
Application - The percentage of employment in
non-agricultural activities and the economic
importance are also the important factors
which have to be taken into consideration by
the
Governor
for
upgradation
of
the
transitional area to an urban area - Held, from
the material on record and even from the stand
of the petitioners herein, it cannot be said that
the Nagar Panchayat Bharwari which was a
transitional
area
had
not
seen
changes/increase in the population, revenue
generation,
employment
opportunities
and
economic activities during the course of time.
(Para 17)
Writ petitions dismissed. (E-1)
Cases relied on :-

## Text

11 All. Smt. Sushma Devi & Ors. Vs. State of U.P. & Ors.
619
Vs. State of U.P. and Others and the order dated
23.05.2009 passed by Additional Collector
(Administration), Meerut in Case No.8, under
Sections 166/167 of the U.P. Zamindari
Abolition and Land Reforms Act, 1950 are set
aside.
----------
(2021)11ILR A619
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI (THAKUR), J.

Writ C No. 45366 of 2017
connected alongwith
Writ C No. 50958 of 2017

Smt. Sushma Devi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sanjeev Singh, Sri Pramod Kumar Srivastava,
Sri Shashi Nandan

Counsel for the Respondents:
C.S.C., Sri Madan Mohan Srivastava, Sri Ashok
Khare

A. Municipal Law - Executive decision - Scope
of
Judicial
review
-Interference,
when
warranted - Held, it is settled principle that
within the limited scope of the judicial review,
the decision of the Executives cannot be
overturned on the basis of that being an
incorrect decision - The Court will be slow to
interfere
in
such
matters
relating
to
administrative functions unless decision is
tainted by any vulnerability like illegality,
irrationality and procedural impropriety -
Satisfaction of the authority can be interfered
with only if the satisfaction recorded is
demonstratively
perverse
based
on
no
evidence, misreading of evidence or which a
reasonable man could not form or that the
person
concerned
was
not
given
due
opportunity resulting in prejudice. (Para 14 and
15)
B. Municipal Law - Constitution of India -
Article 243-Q and 243-X - UP Municipalities
Act, 1916 - S. 3(2) - GO dated 10.11.2014 -
Upgradation of the Nagar Panchayat to Nagar
Palika
Parishad
-
Relevant
criteria
-
Application - The percentage of employment in
non-agricultural activities and the economic
importance are also the important factors
which have to be taken into consideration by
the
Governor
for
upgradation
of
the
transitional area to an urban area - Held, from
the material on record and even from the stand
of the petitioners herein, it cannot be said that
the Nagar Panchayat Bharwari which was a
transitional
area
had
not
seen
changes/increase in the population, revenue
generation,
employment
opportunities
and
economic activities during the course of time.
(Para 17)
Writ petitions dismissed. (E-1)
Cases relied on :-
1. State of NCT of Delhi & anr. Vs Sanjeev @ Bittoo;
(2005) 5 SCC 181

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.
&
Hon'ble Mrs. Sadhna Rani (Thakur), J.)

1. Heard Sri Sanjeev Singh, Sri Pramod
Kumar Srivastava, Sri Rama Shanker Mishra
learned Advocates for the petitioners, Sri
Manish Goel learned Additional Advocate
General assisted by Sri A.K. Goel learned
Additional Chief Standing Counsel for the Staterespondents, Sri Madan Mohan Srivastava
learned Advocate for the Nagar Palika Parishad
and perused the record.

2. By means of the abovenoted writ
petitions, the petitioners seek for quashing of the
notification dated 26.10.2016 issued under
Section 4 of the Uttar Pradesh Municipalities
Act, 1916 (hereinafter referred to as "the Act,
620 INDIAN LAW REPORTS ALLAHABAD SERIES
1916"); alongwith the decision for rejection of
their objections dated 13.1.2017 as also the final
notification issued under sub-section (2) of
Section 3 of the Act, 1916.

Further prayer is to issue a mandamus
commanding the respondents not to treat the
Nagar Panchayat Bharwari, Kaushambi as
upgraded Nagar Palika Parishad, Bharwari,
Kaushambi as the conditions of the Government
Order dated 10.11.2014 had not been met while
issuing the final notification under Section 3(2)
of the Act, 1916.

The petitioners herein (in both the writ
petitions) are mostly Gram Pradhans of the
respective Village Panchayat and some are
villagers of different villages.

3. The challenge to the notification for
upgradation of the Nagar Panchayat to Nagar
Palika Parishad is based on the plea of violation
of the mandatory conditions of the Government
Order dated 10.11.2014.

4. It is argued by Sri Sanjeev Singh, Sri
Pramod Kumar Srivastava and Sri Rama
Shanker Mishra learned Advocates for the
petitioners that the Government Order dated
10th November, 2014 had been issued for laying
down the criteria for categorization of the Nagar
Palika Parishads as well as for upgradation of
the Nagar Panchayats to Nagar Palika Parishads.
In Para '3(Ka)' of the Government Order, three
categories of Nagar Palika Parishads had been
provided
with
the
condition
for
their
categorization based on the Annual income,
population and density of population per square
kilometer of the concerned local body (Nagar
Palika Parishad).

The table in Para '3(Kha)' has been
placed before us to assert that the decision for
upgradation of a Nagar Panchayat to Nagar
Palika Parishad would require fulfillment of the
criterias in the above noted Para '3' of the
Government Order. For determination of the
population/density of population, Census of the
year 2011 was to be taken into consideration as
per Para '5' of the Government Order dated
10.11.2014. As per the aforesaid table provided
in Para '3(Ka)' of the Government Order dated
10.11.2014, for category 'III', (which is
applicable in the matter of the Nagar Panchayat
Bharwari), the minimum yearly income as
required was Rs. 60 Lacs to Rs. 1.75 crores and
the minimum population criteria was more than
1 Lac and less than 1.50 Lacs whereas the
density of the population was minimum 6266
per square kilometer. The upgradation of the
Nagar Panchayat to that of the Nagar Palika
Parishad could be done only on fulfillment of
the above criterias and not otherwise.

It is contended that on a R.T.I.
information dated 16.9.2017 received by one
person Sri Shankar Lal, it was reflected that the
receipt of the Nagar Panchayat, i.e. yearly
income of the Nagar Panchayat Bharwari was
only Rs. 25,17,140/- for the financial year 201415, Rs. 30,23,201/- for the financial year 201516 and Rs. 23,09,957/- for the financial year
2016-17. As regards the population, as per the
census of the year 2011, the population of the
Nagar Panchayat Bharwari was only 98352, less
than 1 Lac. As per the final notification dated
1.9.2017 itself, the total area of the Nagar Palika
Parishad being 7422.5805 hectares, the density
of the population as per census of the year 2011,
would be 1325 persons per square kilometers
which
further
supports
that
the
criteria
determined in the Government Order dated 10th
November, 2014 were not fulfilled. It is then
contended that even if, the total population of
the Nagar Panchayat Bharwari was taken as
1,08,000 as indicated in the final notification, it
could not meet the minimum criteria of density
of population being 6266 per square kilometer
for upgradation as Nagar Palika Parishad as the
population density per square kilometer would
11 All. Smt. Sushma Devi & Ors. Vs. State of U.P. & Ors.
621
be only approximately 1450 per square
kilometers in that case. Apart from above two
objections, no other grounds narrated in the writ
petition have been pressed before the Court to
challenge the notification in question.

5. Sri Manish Goel learned Additional
Advocate General assisted by Sri A.K. Goel
learned Additional Chief Standing Counsel for
the State-respondents, on the other hand,
submits that the Government Order dated
10.11.2014 was merely a guideline and the
decision of the Governor for upgradation of the
Nagar Panchayat to Nagar Palika Parishad is
based on all other criterias not only income and
population as provided in Article 243-Q(2) of
the Constitution of India. Even otherwise,
objections were invited from all concerned by
issuance of a notification dated 26th October,
2016 under Section 4 of the Act, 1916, which
was published in the daily newspaper "Dainik
Jagran" on 12th November, 2016 and was also
pasted on the 'Notice Board' in the office of the
Collector, Kaushambi and the offices of the
Tehsils Chayal and Sirathu on 8.11.2016.
Number of objections had been received in the
office of respondent no. 1 and they were
forwarded
to
the
District
Magistrate,
Kaushambi. Full opportunity was provided to
the objectors by the District Magistrate,
Kaushambi and by the order dated 14.12.2016,
all the objections were decided and forwarded to
the respondent no. 1, wherein approval was
given on 13.1.2017. The order passed by the
District Magistrate, Kaushambi rejecting the
objections has also been appended with the writ
petition. The final notification, thus, had been
issued after disposal of the objections in writing.

It is then contended that all the
requirements in respect of the upgradation of the
Nagar Panchayat to Nagar Palika Parishad had
been fulfilled and the constitution of Nagar
Palika Parishad Bharwari, District Kaushambi
was for the better development of the area
concerned. As regards the plea of the petitioners
regarding
non-fulfillment
of
the
criteria
regarding minimum income of the Nagar
Panchayat for upgradation, Article 243-X has
been placed before the Court to submit that the
income of a 'Municipality' includes its annual
income from the levy/collection of the taxes,
duties, tolls and fees as also the grant-in-aid
received
by
the
Municipality
from
the
consolidated funds of the State or any other
funds received by it under the Central sponsored
scheme.

The contention is that as per the
mandate of Article 243-X, the funds of
Municipality is created for crediting all moneys
received by or on behalf of the Municipalities.
The contention of the petitioners, thus, that
yearly income of the Nagar Panchayat Bharwari
was below the limit (1.75 crores) is incorrect.

The photo copy of the income chart
appended as Annexure C.A.-'7' to the counter
affidavit has been placed before the Court to
assert that the annual income of the Nagar
Panchayat Bharwari for the financial year 201314 was Rs. 4,26,85,979/-, year 2014-15 was Rs.
4,51,67,043/- and for the year 2015-16 it was
Rs. 4,11,74,242/-, which has been intimated by
the
Executive
Officer,
Nagar
Panchayat
Bharwari, Kaushambi.

6. It is then contended that the information
under R.T.I. Act provided by the Clerk of the
Accountant was misleading and the concerned
Clerk was not competent to provide any
information under the R.T.I. Act. Wrong
information having been provided on behalf of
the
Executive
Officer,
Nagar
Panchayat
Bharwari, Kaushambi containing incorrect data
cannot be believed.

As regards the dispute relating to the
population, it is contended that after completion
of the due process, the figures pertaining to the
622 INDIAN LAW REPORTS ALLAHABAD SERIES
population of the Nagar Panchayat Bharwari had
been placed before the State Government. It is
lastly contended that only few of the petitioners
herein had filed objections which had been dealt
with and the issues raised herein had not been
raised by them in their objections. The present
writ petitions have been filed only with a view to
stall the process of upgradation for personal
benefit and motivated minds of the petitioners
who are making all efforts to save their
Pradhanships of the respective villages.

7. Considering the said submissions, we
may firstly note the relevant provisions
pertaining to the upgradation of the Nagar
Panchayat to Nagar Palika Parishad. The
Constitution of the Municipalities is governed
by the provisions of the Constitution under
Article 243-Q which reads as under:-

"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."

As provided therein, there are various
factors which have to be taken into consideration
by the Governor for declaration of a transitional
area, small urban area, larger urban area. The
Nagar Panchayat as per Article 243-Q(1)(a) is a
transitional area, i.e. an area in transition from a
rural area to an urban area. For upgradation of a
transitional area to a small urban area
(Municipal Council) as has been done by the
notification in question, the Governor was
required to have regards to various factors which
are:-

(i) population of the area;

(ii) the density of the population of the
area;

(iii) the revenue generated for local
administration;

(iv) the percentage of employment in
non-agricultural activities;

(v) the economic importance;

(vi) or such other factors as he may
deem fit.

The population or density of the
population of the area and the revenue generated
11 All. Smt. Sushma Devi & Ors. Vs. State of U.P. & Ors.
623
for local administration are only two of the
various factors which were required to be
considered by the Governor.

8. Article 243-X is further relevant to
understand the meaning of the words "revenue
generated for local administration" as indicated
in Article 243-Q.

Article 243-X is reproduced for ready
reference:-

"243X. Power to impose taxes by, and
Funds of, the Municipalities.- The Legislature
of a State may, by law,-

(a) authorise a Municipality to levy,
collect and appropriate such taxes, duties, tolls
and fees in accordance with such procedure and
subject to such limits;

(b) assign to a Municipality such
taxes, duties, tolls and fees levied and collected
by the State Government for such purposes and
subject to such conditions and limits;

(c) provide for making, such grants-inaid to the Municipalities from the Consolidated
Fund of the State; and

(d) provide for constitution of such
Funds for crediting all moneys received,
respectively,
by
or
on
behalf
of
the
Municipalities and also for the withdrawal of
such moneys therefrom,

as may be specified in the law."

A careful reading of Article 243-X(ad) shows that the Legislature of the State, by
law, has to provide for constitution of funds of
the Municipality for crediting all moneys
received either by or on behalf of the
Municipalities. It shall also make legislation for
providing grant-in-aid to the Municipalities from
the consolidated funds of the State and authorise
or assign to the Municipality to levy such taxes,
duties, tolls and fees collected by it and by the
State Government for the purpose and subject to
such conditions and limits, as may be specified
in the legislation of the State.

9. Learned Additional Advocate General
submits that the phrase "the revenue generated
for local administration" as occur in Article 243Q would include the funds provided by the
State/Centre under different schemes, including
grant-in-aid to the Municipalities from the
consolidated funds of the State as also the taxes,
duties, tolls, fees levied/collected either by it or
by the State Government. All these funds
collectively would constitute the revenue of the
Municipality and the stand of the petitioners that
only the income generated by the Municipality
for a financial year from the levy/collection of
taxes, duties, tolls and fees would be the factor
or criteria as per Para 3(Ka) of the Government
Order
dated
10.11.2014,
is
a
wrong
interpretation of the language employed therein.

10. Having carefully gone through the
constitutional provisions and the language of the
Government Order dated 10.11.2014, we are
afraid to accept the submissions of the learned
Advocates for the petitioners that the income of
the Municipality (Nagar Panchayat Bharwari) as
indicated in the R.T.I. Information, was less than
Rs. 1.75 cores. The certificate of the Executive
Officer, Nagar Panchayat Bharwari, Kaushambi
appended as Annexure C.A.-'7' to the counter
affidavit clearly indicates the income/revenue
generated by the Nagar Panchayat being much
more that the minimum prescribed limit.

11. In the rejoinder affidavit, only this
much is stated that the document appended as
Annexure C.A.-'7' does not bear the date on
which the authority concerned had signed or
prepared it. The said statement would not be a
plausible objection. The denial of the stand of
624 INDIAN LAW REPORTS ALLAHABAD SERIES
the respondent regarding incorrect information
being provided by the Clerk of the Accountant
in the office of the Executive Officer, Nagar
Panchayat, Bharwari is also vague.

This apart, the person who had
obtained the alleged information namely one Sri
Shankar Lal is not before us. We, therefore,
cannot place reliance on the information
received by some other person from the office of
the Nagar Panchayat Bharwari which had not
been signed by the Executive Officer, Nagar
Panchayat Bharwari, Kaushambi. The stand of
the respondent that the Clerk of the Accountant
was not the competent authority or the Public
Information Officer is also substantiated from a
perusal of the R.T.I. information appended as
Annexure '5' to the writ petition.

12. We, therefore, cannot take exception to
the stand of the respondent that the income of
Nagar Panchayat Bharwari was much more than
the limits prescribed by the Government Order
dated 10.11.2014.

13. As regards the population criteria, we
may note that the figures provided in the
preliminary notification under Section 4(1) of the
Act, 1916 shows the population of each village
which were to be included for upgradation of the
Nagar
Palika
Parishad,
Bharwari,
District
Kaushambi. No objection whatsoever had been
taken by any of the petitioners regarding the
figures mentioned therein. Further, the population
density or the population as per the Census of the
year 2011 was taken as one of the criteria for
creation of the Nagar Palika Parishad but there are
other important factors which were to be taken into
consideration by the Governor. Apart from this
fact that the Census of the year 2011 was taken
into consideration in the year 2017 to assess the
population density. There is nothing on record
which would indicate that there was no increase in
the population of the village Panchayat in the
intervening period (for five years).

14. Lastly, while considering all the above
arguments, we must remind ourselves to the scope
of judicial review to an executive decision within
the scope of Article 226 of the Constitution of
India. It is settled principle that within the limited
scope of the judicial review, the decision of the
Executives cannot be overturned on the basis of
that being an incorrect decision. The Court can
only examine as to whether there was flaw in the
decision making process. If two views are
possible, the view taken by the competent
authority/Executive will not be upset on the
ground that the Court thinks that the other (better)
view ought to have been taken. This is not in the
province of the writ court.

15. It is trite law that exercise of power,
whether legislative or administrative, will be set
aside if there is manifest error in exercise of such
power or the exercise of the power is manifestly
arbitrary. The Court will be slow to interfere in
such matters relating to administrative functions
unless decision is tainted by any vulnerability like
illegality, irrationality and procedural impropriety.
Whether action falls within any of the categories
has to be established, mere assertion in that regard
would not be sufficient. The satisfaction of the
authority can be interfered with only if the
satisfaction recorded is demonstratively perverse
based on no evidence, misreading of evidence or
which a reasonable man could not form or that the
person concerned was not given due opportunity
resulting in prejudice. To that extent, objectivity is
inbuilt in the subjective satisfaction of the
authority. [Reference State of NCT of Delhi and
another vs. Sanjeev Alias Bittoo1]

16. As demonstrated before us, no flaw
could be found in the decision making process
as the notification under Section 4(1) of the Act,
1916 was issued to invite objections from all
concerned. The final notification was issued
only after disposal of the objections by a written
order. Under the scheme of the Constitution, a
large amount of latitude within the four corners
11 All. Soran & Ors. Vs. State of U.P.
625
of the Article 243-Q(2) has been made available
to the State in determining as to which category
of the Municipality is to be constituted for an
area, under the Act. The parameters within
which the Governor is to notify an area as a
Municipality under Article 243-Q refers to
various factors including the population density
and
income/revenue
generated
by
the
Municipality, which are the subject matter of
dispute in the present petition.

17. As has been noted above, the "Nagar
Panchayat" under the scheme of the Constitution is
a transitional area, an area which is in transition
from a rural area to an urban area. There cannot be
a dispute or doubt that the population density of
the concerned area is increasing day by day. The
"revenue generated for the local administration" is
also variable depending upon the income which
also include the income generated from the State
funds under the schemes floated in the concerned
area. The percentage of employment in nonagricultural activities and the economic importance
are also the important factors which have to be
taken into consideration by the Governor for
upgradation of the transitional area to an urban
area (small urban area as in this case). From the
material on record and even from the stand of the
petitioners herein, it cannot be said that the Nagar
Panchayat Bharwari which was a transitional area
had not seen changes/increase in the population,
revenue generation, employment opportunities and
economic activities during the course of time.

18. The contention of the learned Advocates
for the petitioners that the transition of the Nagar
Panchayat Bharwari to a smaller urban area
(Municipal Council), i.e. Nagar Palika Parishad
would run against the spirit of the constitution is,
thus, found wholly misconceived.

19. We may note that there is no basis of the
contention of the petitioners that the upgradation of
the Nagar Panchayat Bharwari will affect the lives
and livelihood of its denizens rather the stand of
the respondent that the creation of the Nagar Palika
Parishad, Bharwari would provide better prospects
for development as the scope of implementation of
the Government scheme in a Nagar Palika
Parishad would be expanded. There cannot be a
doubt that the upgradation is for the public benefit.

20. Considering the above, we do not find it
a fit case for exercise of judicial review within the
scope of Article 226 of the Constitution of India,
as for any alternative view taken by this Court, the
decision of the State for the upgradation of the
Nagar Panchayat Bharwari to Nagar Palika
Parishad, Bharwari cannot be upset on the plea of
it being against the Constitutional scheme. The
notification dated 26.10.2016 cannot be held
unconstitutional on the plea of the petitioners
herein and the material on record.

The writ petitions are, thus, found
devoid of merits and hence dismissed.
----------
(2021)11ILR A625
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.10.2021

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Criminal Appeal No. 2320 of 1981

Soran & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri D.K. Singh, Sri Pushpendra Singh Yadav, Sri
Anshuman Singh, Sri Rajesh Kumar Singh

Counsel for the Respondents:
A.G.A.

(A) Criminal Law - The Indian Penal Code, 1860
- Sections 148, 450, 376 & 376 read with
Section 149 - The Code of criminal procedure,