# Sujit & Ors v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 152
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-27
- **Case number:** Writ C No. 26793 of 2022
- **Bench:** Manoj Kumar Gupta, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sujit-ors-v-state-of-u-p-ors-47796
- **Pages:** 5

## Headnote

A. Constitution of India - Article 243-Q -
UP Municipalities Act, 1916 - Sections 3 &
4 - Inclusion of villages in the transitional
area
of
Nagar
Panchayat
-
Final
notification issued - No objection or
suggestion were invited from concern
villagers - Invitation of objections, how
11 All. Sujit & Ors. Vs. State of U.P.& Ors.
153
far necessary - Held, the object of Section
4 is to provide opportunity to the general
public which would include the petitioners
herein, to file objections against the
proposal - This is an invaluable right
conferred in the general public with
avowed object of strengthening their
hands in all facets of local self governance
- High Court quashed the impugned final
notification
declaring
it
illegal
and
unconstitutional. (Para 12 and 14)
Writ petition allowed in part. (E-1)

## Text

152 INDIAN LAW REPORTS ALLAHABAD SERIES
various documents which formed basis for
levelling the charges. The charges related to
alleged misuse of funds; ante dating of
cheques; alleged illegal payments to certain
contractors in violation of the provisions of
certain Government instructions; alleged
diversion of funds.

47.

Once
the
petitioner
had
specifically denied the charges and prayed
for proper inquiry being held, it was
incumbent upon the respondents to provide
all documentary evidence, hold oral inquiry
giving full opportunity to the petitioner to
cross-examine the complainant and other
witnesses. However, that was not done. The
respondents rather adopted a peculiar
procedure. After receipt of explanation of
the petitioner dated 17.07.2019, they called
for comments from the District Magistrate.
Thereafter when the petitioner submitted
another detailed reply dated 19.09.2019,
once again comments are called from the
District Magistrate. The State Government
without holding any enquiry, merely on
basis of comments submitted by the
District Magistrate, proceeded to pass the
impugned order for the reason that the
petitioner had not submitted any reply in
response to notice dated 14.05.2020 which
was issued as a substitute to personal
hearing on account of Covid 19 protocol
being in force at the relevant time. The
rebuttal of the petitioner to the charges was
already there in shape of the reply dated
17.07.2019 and 9.09.2019 and therefore,
there was no need of reiterating the stand
once again in response to notice dated
14.05.2020. The issuance of repeated show
cause notices and calling for explanations
cannot be a substitute to the oral inquiry
which in the facts and circumstances of the
instant case was necessary to comply with
the principles of natural justice as well as
the requirements of statute itself.

48. We find considerable force in the
submission of learned counsel for the
petitioner that the petitioner, who was head
of a Municipality, has been removed in a
casual manner, without holding proper
inquiry, which could pass the test of
fairness.

49. In consequence, the writ petition
succeeds and is allowed in part. The
impugned order is quashed leaving it open
to the State respondents to proceed in the
matter
afresh
in
the
light
of
the
observations
made
in
the
foregoing
paragraphs of this order.

50. No order as to costs.
----------
(2022) 11 ILRA 152
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.09.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ C No. 26793 of 2022

Sujit & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vibhu Rai, Sri Abhinav Gaur, Sr.
Advocate

Counsel for the Respondents:
C.S.C., Sri Rajiv Gupta (A.C.S.C.)

A. Constitution of India - Article 243-Q -
UP Municipalities Act, 1916 - Sections 3 &
4 - Inclusion of villages in the transitional
area
of
Nagar
Panchayat
-
Final
notification issued - No objection or
suggestion were invited from concern
villagers - Invitation of objections, how
11 All. Sujit & Ors. Vs. State of U.P.& Ors.
153
far necessary - Held, the object of Section
4 is to provide opportunity to the general
public which would include the petitioners
herein, to file objections against the
proposal - This is an invaluable right
conferred in the general public with
avowed object of strengthening their
hands in all facets of local self governance
- High Court quashed the impugned final
notification
declaring
it
illegal
and
unconstitutional. (Para 12 and 14)
Writ petition allowed in part. (E-1)

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

1. The petitioners are elected
Pradhans of Gram Panchayat Bhaiswali,
Sansaarpur, Sidhwapaar, Kodhari, Bailey
and Kalyanpur. They have called in
question notifications dated 12.12.2020,
22.7.2022 and 10.8.2022 (all issued by
respondent no. 2).

2. The notification dated 12.12.2020
was a draft of a proposal intended to be
issued by the Governor in exercise of
powers under clause (2) of Article 243Q of
the Constitution of India, read with subsection (2) of Section 3 of the U.P.
Municipalities Act, 1916 and in partial
modification of previous notification dated
16th March, 1875 and other notifications
issued in this behalf for inclusion of ten
villages in the transitional area of Nagar
Panchayat, Badahalganj, Gorakhpur. The
draft proposal was notified in order to
ensure compliance of Section 4 of the U.P.
Municipalities Act, 1916 which is as
follows: -

"4. Preliminary procedure to
issue notification. - (1) Before the issue of
a notification referred to in Section 3, the
Governor shall publish in the Official
Gazette and in a paper approved by it for
purposes of publication of public notices,
published 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 or the proposed
notification along with a notice stating that
the draft will be taken into consideration on
the expiry of the period as may be stated in
the notice.

(2) The Governor shall, before
issuing the notification consider any
objection or suggestion in writing which it
receives from any person, in respect of the
draft within the period stated."

3. Section 3 of the U.P. Municipalities
Act, 1916, which is also relevant for
deciding the controversy, 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,
154 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

4. Article 243Q of the Constitution
which confers power to the Governor to
include or exclude any area, as well as
power to constitute a Nagar Panchayat, a
Municipal
Council,
or
a
Municipal
Corporation, reads thus: -

"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."

5. The Notification dated 22.7.2022
has been issued in exercise of power under
clause (2) of Article 243Q of the
Constitution of India, read with sub-section
(2) of Section 3 of the U.P. Municipalities
Act, 1916. This, provision, as would be
clear from a bare perusal, confers power in
the Governor to issue a subsequent
notification under clause (2) of Article
243Q of the Constitution of India, thereby
including or excluding any area, in or from
a transitional area, or a smaller urban area.
The notification gives final shape to the
draft notification, thereby concretizing the
proposal for inclusion of ten villages in the
transitional area of Nagar Panchayat,
Badahalganj, District Gorakhpur.

6. The third notification, which has
been called in question, is dated 10.8.2022
and it has been issued in exercise of power
under sub-section (2) of Section 3 of the
U.P. Municipalities Act, 1916, read with
clause (2) of Section 243Q of the
Constitution. It seeks to supersede the
earlier notification dated 22.07.2022 on the
ground that there was typographical error
in the areas specified in the Schedule to the
said notification. It now seeks to include
seven more villages, which were not part of
draft notification under Section 4, but have
been notified for the first time. These
villages
are
Garthauli,
Sansaarpur,
Baswanpur,
Mishrauli,
Sidhawapaar,
Kuraon and Mahulia Khajuha.

7. The case of the petitioners is that
under
the Act,
before
including
or
excluding any area in a transitional area, or
a smaller urban area, in exercise of power
under Article 243Q, read with Section 3 of
the Act, the proposal has to be notified in
11 All. Sujit & Ors. Vs. State of U.P.& Ors.
155
terms of Section 4, inviting suggestions and
objections and after considering which,
final notification is to be issued. This presupposes that the area, as notified in the
proposal, cannot be increased, while
issuing the final notification, otherwise, it
will defeat the provision of Section 4 of the
Act.

8. Having regard to the said
submission, we passed the following order
on 21.9.2022: -

"One of the contention is that as
many as 7 villages which have now been
notified under Section 3 of the U.P.
Municipalities Act, 1916 for being included
in the transitional area of Nagar Panchayat
Badahalganj, Gorakhpur were not part of
the notification issued under Section 4 of
the Act. Consequently, the final notification
is bad in law.

Sri
Manish
Kumar,
learned
standing
counsel
appearing
for
the
respondents
seeks
time
to
obtain
instructions.

As prayed, put up tomorrow as
fresh."

9. On matter being taken up today, Sri
Rajiv Gupta, learned Additional Chief
Standing Counsel, appearing for the State,
on basis of instructions received by him,
submitted that seven villages have been
included in the final notification, on basis
of objections and suggestions received in
pursuance of the preliminary notification
under Section 3 of the Act. He further
submitted that there was typographical
error in the notification dated 22.07.2022,
which has now been corrected by issuing
notification dated 10.08.2022.

10.

Learned
counsel
for
the
petitioners submitted that the same is not
permissible, as it will render Section 4 of
the Act redundant.

11. We find considerable force in the
submission of learned counsel for the
petitioners. The Governor while being
invested with power to include or exclude
any area in a transitional area, or a smaller
urban area, in exercise of power under
clause (2) of Article 243Q of the
Constitution, read with Section 3 of the
U.P. Municipalities Act, 1916, has to follow
the procedure prescribed under Section 4,
which mandates that before issuance of
notification under Section 3, a draft
proposal has to be published in the manner
provided under Section 4, so as to apprise
the
general
public
of
the
inclusions/exclusions and if any person has
any
objection,
he
may
file
objection/suggestion. Sub-section (2) of
Section 4 enjoins upon the Governor to
consider the objection or suggestion
received in writing from any person in
respect of the draft proposal within the
period stated. Sub-section (3) of Section 3
explicitly and unequivocally prescribes that
'the notifications referred to in sub-section
(1) and (2) shall be subject to the condition
of the notification being issued after the
previous publication required by Section
4......."

12. It is implicit in the statutory
provision that while issuing a final
notification, the area as originally proposed
to be included in the transitional area,
cannot be increased in such a manner, so as
to change the entire complexion and
character of the preliminary notification.
The object of Section 4 is to provide
opportunity to the general public which
would include the petitioners herein, to file
objections
against
the
proposal. The
Governor exercises power under Article
156 INDIAN LAW REPORTS ALLAHABAD SERIES
243Q having regard to the factors laid
down under clause (2), i.e., 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
factor as he may deem fit. The objection
could be on any of the above aspects, apart
from
inclusion/exclusion. This
is
an
invaluable right conferred in the general
public with avowed object of strengthening
their hands in all facets of local self
governance. In the absence of these villages
being part of the proposal notified under
Section 4, the right to file objection has
been rendered illusory making Section 4 of
the Act redundant. It amounts to notifying
seven villages in the transitional area
without
there
being
any
previous
publication, as required by Section 4. What
cannot be done directly cannot be done
indirectly. It is nothing but colourable
exercise of power.

13.

Sri
Rajiv
Gupta,
learned
Additional
Chief
Standing
Counsel,
submitted that objections were invited from
the general public in respect of the proposal
for inclusion of seven additional villages.
However, we find no such material on
record. The constitutional scheme and the
provisions of the Act lays down the manner
in which objections/suggestions are to be
invited and for such purpose, a notification
under Section 4 of the Act is required to be
issued. This notification is annexure 1
dated 12.12.2020 but it does not make any
proposal for inclusion of the seven villages
in question. As such, we find no force in
the submission of Sri Rajiv Gupta.

14. In view of what has been stated
above, we are of the considered opinion
that the final notification dated 10.8.2022,
in so far as it includes the villages
Garthauli,
Sansaarpur,
Basawanpur,
Mishrauli, Kuraon and Mahulia Khajuha, is
illegal and unconstitutional and it is
quashed to that extent.

15. Although, notifications dated
12.12.2022 and 22.07.2022 are also under
challenge, but no argument has been
advanced in respect thereto. Consequently,
the challenge to these notifications fail.

16. As a result, the petition is allowed
in part.

17. No order as to costs.
----------
(2022) 11 ILRA 156
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.08.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal U/S 372 Cr.P.C. No. 30 of 2020

Raj Narayan Singh ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Dinesh Kumar Yadav, Sri A.R. Nadiawal,
Sri Krishna Prakash

Counsel for the Opposite Parties:
G.A., Sri A.K. Pandey, Sri Ajay Pandey, Sri
L.K. Pandey, Sri Rajiv Lochan Shukla

Criminal Law - Criminal Procedure Code,
1973 - Sections 372, 377, 378, 394,
394(1), 394(2) & 417 - Criminal Appeal -
against acquittal - concept of Substitution &
Impleadment in Criminal proceedings - during
pendency of the appeal, sole appellant had died
- legal heir filed an impleadment application -