# Sonu & Anr v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 289
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-07
- **Case number:** Writ-C No. 33578 of 2022
- **Bench:** Manoj Kumar Gupta, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sonu-anr-v-state-of-u-p-ors-49146
- **Pages:** 4

## Headnote

(A) Civil Law - Constitution of India,
1949 - Article 243-P - "Municipal area" ,
Article
243-Q
-
Constitution
of
Municipalities, The U.P. Municipalities
Act, 1916 - Section 3 - Declaration etc.
of transitional area and smaller urban
area, Section 3(2) - notification under
clause (2) of Article 243-Q of the
Constitution, Section 4 - Preliminary
procedure to issue notification - No
prohibition for a person not living in the
area which is sought to be included to
file objection. (Para -12)

Petitioners are Corporators of Nagar Palika
Parishad - notification - inclusion of various
Gram Panchayats in the Municipal Council -
locus to file objection against the draft
notification pendency of writ petition - final
notification in abeyance - granted time to
petitioners
to
file
objection
-
under
circumstances defect has been cured. (Para -
3,12,13)

HELD:-Defect cannot be cured as post
decisional
hearing
of
objections
is
not
contemplated under law. Objections were to
be
decided
before
finalizing
the
draft
notification and not after the issuance of final
notification. Goes to the root of the matter
and renders the final notification illegal.
(Para - 14)

Petition Allowed. (E-7)

## Text

1 All. Sonu & Anr. Vs. State of U.P. & Ors.
289
not give an opportunity to the petitioner to
thereafter contend that rejection of the
representation subsequently has given a
fresh cause of action.

6. Even otherwise on merits also,
we are in complete agreement with the
view taken by the High Court. The High
Court has rightly refused to grant any relief
which as such was in the form of specific
performance of the contract. No writ under
Article 226 of the Constitution of India
shall be maintainable and/or entertainable
for specific performance of the contract and
that too after a period of 10 years by which
time even the suit for specific performance
would have been barred by limitation."

18. In view of the aforesaid, the Court
is of the opinion that neither petitioner has
placed before this Court any statutes on the
basis of which an employment could be
given to him in lieu of the land, which was
taken by the Corporation in the year 1985.

19. Accordingly, present writ petition
is dismissed.
----------
(2023) 1 ILRA 289
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2022

BEFORE

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

Writ-C No. 33578 of 2022

Sonu & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Brijesh Chandra Tripathi, Sri Sunil
Kumar Dubey

Counsel for the Respondents:
C.S.C., Sri Virendra Singh Chauhan

(A) Civil Law - Constitution of India,
1949 - Article 243-P - "Municipal area" ,
Article
243-Q
-
Constitution
of
Municipalities, The U.P. Municipalities
Act, 1916 - Section 3 - Declaration etc.
of transitional area and smaller urban
area, Section 3(2) - notification under
clause (2) of Article 243-Q of the
Constitution, Section 4 - Preliminary
procedure to issue notification - No
prohibition for a person not living in the
area which is sought to be included to
file objection. (Para -12)

Petitioners are Corporators of Nagar Palika
Parishad - notification - inclusion of various
Gram Panchayats in the Municipal Council -
locus to file objection against the draft
notification pendency of writ petition - final
notification in abeyance - granted time to
petitioners
to
file
objection
-
under
circumstances defect has been cured. (Para -
3,12,13)

HELD:-Defect cannot be cured as post
decisional
hearing
of
objections
is
not
contemplated under law. Objections were to
be
decided
before
finalizing
the
draft
notification and not after the issuance of final
notification. Goes to the root of the matter
and renders the final notification illegal.
(Para - 14)

Petition Allowed. (E-7)

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Jayant Banerji, J.)

1. Heard Sri Brijesh Chandra Tripathi,
learned counsel for the petitioners, learned
Standing Counsel Sri Pradeep Kumar
Tripathi for respondent nos. 1 and 2 and Sri
Virendra Singh Chauhan, learned counsel
for respondent no.3.
290 INDIAN LAW REPORTS ALLAHABAD SERIES

2. With consent of counsel for the
parties, the petition is being disposed of
finally at the admission stage.

3. The facts in brief are that petitioner
no.1 is elected Corporator from Ward No.
3, Nagar Palika Parishad, Baghapat and
petitioner no.2 also is an elected Corporator
from Ward No. 19, Nagar Palika Parishad,
Baghpat.
They
have
challenged
the
notification
issued
on
21.9.2022
by
respondent no.1 in exercise of power under
Article 243-Q of the Constitution read with
sub-section (2) of Section 3 of the U.P.
Municipalities Act, 1916 including the area
specified in Schedule-1 of the said
notification in smaller urban area of the
Municipal
Council,
Baghpat
and
a
declaration under clause (d) of the Article
243-P of the Constitution that the area
specified in Schedule-2 would be territorial
area of Municipal Council, Baghpat.

4. The facts and grounds on which the
challenge has been made is noted in our
order dated 15.11.2022, which is as
follows:-

"The contention of counsel for the
petitioners is that a draft notification was
issued on 26.8.2022 under Section 4 of the
U.P. Municipalities Act, 1916, for inclusion of
certain areas in the smaller urban area of
Nagar Palika Parishad, Baghpat. Its Hindi
version was published in "Amar Ujala" dated
27.8.2022
and
thereby
objections
and
suggestions were invited against the draft
notification within fifteen days. On 4.9.2022, a
corrigendum was published in the newspaper,
stating that the draft notification in English
provides only seven days time for filing
objections/suggestions. However, on account
of error, the Hindi version provided fifteen
days time for filing objections/suggestions.
Accordingly, the Hindi version was sought to
be amended, so as to bring it in line with the
notification issued in English.

Learned counsel for the petitioners
submitted that issuance of draft notification in
Hindi in a local area, is the requirement of
law. The petitioners on basis of the said
notification filed objections against the draft
notification on 6.9.2022. However, while
issuing the final notification dated 21.9.2022,
their objections have not been considered,
apparently on the ground that the same was
filed after seven days. It is submitted that the
corrigendum issued by the respondents
deprives the petitioners of their valuable right
to file objections against the draft notification
and therefore, the final notification is rendered
illegal.

Sri
Dilip
Kesarwani,
learned
Additional Chief Standing Counsel, on
instructions, admits that the objections and
suggestions that were received within seven
days alone were considered, meaning thereby
that the objections filed by the petitioners were
not considered.

Prima
facie,
the
exercise
undertaken in this behalf appears to be against
the spirit of the statutory provisions.

We grant three days time to the
Secretary, Urban Development, Government
of U.P., Lucknow to file his personal affidavit
in the matter on the above aspect.

List as fresh on 21.11.2022.

Sri
Dilip
Kesarwani,
learned
Additional Chief Standing Counsel, shall
communicate the instant order to the
concerned respondent for due compliance.

The order has been passed in the
presence of Sri Virendra Singh Chauhan,
learned counsel for respondent no. 3."

5. In compliance, respondent no.1 has
filed his affidavit.

6. The State-respondents admit that
the objections filed by the petitioners
1 All. Sonu & Anr. Vs. State of U.P. & Ors.
291
against the draft notification on 6.9.2022
had not been decided on the ground that the
same was filed beyond prescribed period of
seven days.

7. Section 3 of the U.P. Municipalities
Act, 1916 reads as follows:-

"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."

8. Under the scheme of the Act,
before issuance of a notification under
Section 3 of the Act, the mandate of law is
that the Governor shall publish in the
official gazette and in a paper approved by
it for purposes of publication of public
notices in the district, or if there is no such
paper in the district, in the division in
which the local area covered by the
notification is situate and cause to be
affixed at the office of the District
Magistrate and at one or more conspicuous
places within or adjacent to the local area
concerned a draft in Hindi of the proposed
notification alongwith a notice stating that
the draft will be taken into consideration on
the expiry of the period as may be stated in
the notice. The law also mandate that
before issuing final notification, any
objection or suggestion received in writing
from any person in respect of the draft
within the period stated shall be considered.

9. The publication of the draft
notification in the Hindi newspaper is one
of the mandatory requirement under
Section 4 of the Act apart from other
prescribed modes.

10. In the instant case, admittedly the
Hindi version of the draft notification as
initially published provided fifteen days
time for filing objections. The Hindi
version was published in 'Amar Ujala' on
27.8.2022 and thus, the time for filing
objections and suggestions was upto
11.9.2022. However, on 4.9.2022, the
respondents
published
a
corrigendum
notifying that only seven days time would
be available for filing objections as is the
period provided in the English version. On
the date the corrigendum was published,
seven days time fixed for filing objection as
per English version of the draft notification
had already expired and thus, any person
who had read the Hindi version of draft
notification was completely prevented from
filing objection. One of the objects of
conferring right in the general public to file
objections and make suggestions is to
empower
them
in
matter
of
selfgovernment. The objection could be in
relation to the size of the area or the
municipal services being provided or
proposed to be provided and with regard to
the population of the area, the density of
292 INDIAN LAW REPORTS ALLAHABAD SERIES
the
population
therein,
the
revenue
generated for local administration, the
percentage
of
employment
in
nonagricultural
activities,
the
economic
importance or such other factors as
provided for in clause (2) of Article 243-Q
of the Constitution. All these factors are to
be taken into consideration while issuing
notification under Section 243-Q. The
respondents in the instant case have cut
short the period during which general
public
was
initially
entitled
to
file
objections.
This
had
prevented
the
petitioner, and many like him, from filing
objections against the draft notification.
This in our opinion, goes to the root of the
matter and renders the final notification
illegal.

11.

Learned
Additional
Chief
Standing
Counsel
submits
that
the
petitioners are not residents of the area
which has been included in the smaller
urban area and, therefore, they had no locus
to file objections.

12. Under law, there is no prohibition
for a person not living in the area which is
sought to be included to file objection.
Concededly, the petitioners are Corporators
of the Nagar Palika Parishad, Baghpat and
the impugned notification is in regard to the
inclusion of various Gram Panchayats in
the Municipal Council, Baghpat. As such, it
cannot be said that they had no locus to file
objection against the draft notification.

13.

Learned
Additional
Chief
Standing Counsel further submits that
during pendency of the writ petition, the
respondents have kept the final notification
in abeyance and granted time to the
petitioners to file objection. It is urged that
under the circumstances, the defect has
been cured.

14. We are of the considered opinion
that the aforesaid exercise will not cure the
defect as post decisional hearing of
objections is not contemplated under law.
The objections were to be decided before
finalizing the draft notification and not
after the issuance of final notification.
Moreover, we notice that the order by
which the final notification was kept in
abeyance is in form of office memorandum
and it is not clear at all whether it was
notified to general public so that others
who are not before us but were deprived of
right to file objection against the proposed
notification had the opportunity to file the
objections.

15. For all the reasons aforesaid, the
impugned notification dated 21.9.2022,
issued by respondent no.1 is hereby
quashed.

16. The writ petition stands allowed.
----------
(2023) 1 ILRA 292
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2022

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Writ-C No. 37294 of 2006

Soteem & Ors. ...Petitioners
Versus
Upper
Commissioner
(Judicial)
IInd,
Varanasi Division, Varanasi & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Anant Vijay, Sri Anand Kumar, Sri Ashok
Kumar Rai, Sri Shyam Sunder Maurya

Counsel for the Respondents:
C.S.C., Sri Pramod Kumar Sinha