Article 243Q | Governor's Power To Specify Municipality's Transitional Area Circumscribed By Statutory Stipulations: Allahabad High Court

The Allahabad High Court has made it clear that the Governor's power under Article 243Q of the Constitution, with respect to specifying transitional area of a Nagar Panchayat, is circumscribed by statutory stipulations.A Division bench of Justices Manoj Kumar Gupta and Rajendra Kumar-IV observed,"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."Article 243Q of the Constitution confers power upon the Governor to include or exclude any area, as well as power to constitute a Nagar Panchayat, a Municipal Council, or a Municipal Corporation.The UP Municipalities Act, 1916 prescribes that before including or excluding any area in a transitional area, or a smaller urban area, the proposal has to be notified in terms of Section 4, inviting suggestions and objections and after considering which, final notification is to be issued under Section 3.The Petitioners, several elected Pradhans, were aggrieved by a notification issued by the Governor, allegedly in defiance of Section 4 of the 1916 Act.It was their case that initially, a draft proposal in compliance of Section 4 was circulated for inclusion of ten villages in the transitional area of Nagar Panchayat, Badahalganj, Gorakhpur. However subsequently, a final notification was issued including seven more villages, which were not part of draft notification.This move, as per the Petitioners, rendered Section 4 of the Act redundant. It was submitted that the area, as notified in the draft proposal, cannot be increased while issuing the final notification.The State on the other hand argued that seven villages have been included in the final notification on the basis of objections and suggestions received in pursuance of the preliminary notification.The High Court noted that Section 3 explicitly and unequivocally prescribes that the notification shall be subject to being issued after the previous publication required by Section 4, whose object is to provide opportunity to the general public to file objections against the proposal.Thus, it held 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 Governor exercises power under Article 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."The Court found that the Governor's action of notifying seven villages in the transitional area without there being any previous publication, as required by Section 4, is nothing but colourable exercise of power.In view of the above, the Court declared the impugned notification unconstitutional and quashed it.Case Title: Sujit & Ors. v. State & Ors.Citation: Appearance: Senior Advocate Anoop Trivedi, Advocates Abhinav Gaur and Vibhu Rai for Petitioners; Additional Chief Standing Counsel Rajiv Gupta for StateClick Here To Download Order

Article 243Q | Governor's Power To Specify Municipality's Transitional Area Circumscribed By Statutory Stipulations: Allahabad High Court

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