The Allahabad High Court has set aside the notification to include Kothila Khas village in Bhanpur Nagar Panchayat of Basti district.
The Division Bench of Justice Anjani Kumar Mishra and Justice Jayant Banerji passed this order while hearing a petition filed by Gaganram.
The petitioner has challenged the final notification issued by the State Government being Notification dated 05.12.2019 issued in exercise of powers under Section 3 of the Municipalities Act, 1916 read with Article 243-Q (2) notifying the boundaries of Nagar Panchayat Bhanpur, District Basti.
This notification has been challenged on the ground that the final notification issued includes within its village Kothila Khas, which did not find a mention in the Preliminary Notification dated 24.05.2016 issued under Section 4(1) of the Municipalities Act, 1916.
Referring to the preliminary notification dated 24.05.2016, it has been submitted that village Kothila Khas does not find a mention therein. However, this village and its various plot numbers have been included in the final notification of 05.12.2019, whereby Nagar Panchayat Bhanpur, District Basti has been constituted.
The Court noted that,
The provisions relevant for the purposes of the petition or Section 3 and 4 of the Uttar Pradesh Municipalities Act, 1916 (Act of 1916) and Article 243-Q of the Constitution of India.
The afore-cited provisions empower the Governor to issue a notification notifying the limits of a transitional area or a smaller urban area as the case may be.
Sub-section 3 of Section 3, itself mandates that the notification contemplated under sub-section 1 and 2 shall be issued only after previous publication required by Section 4 of the Act, 1916.
Section 4 provides that prior to the issuance of notification under Section 3 or its sub-sections, the Governor is required to get a publication in the final Gazette and in a newspaper published in the district or division in which the total area covered by the notification is situated.
Sub-section 2 and 4 provides that the Governor before issuing a notification under Section 3 shall consider any objection or suggestion that has been received consequent to the publication of the draft notice under Section 4.
In the counter and supplementary affidavit filed on behalf of the respondents, the stand taken is that the final notification of 05.12.2019 had been issued after publication of a draft notification on 24.05.2016 and after considering all the objections that were received.
The Court further noted that,
It is also stated that the objection filed by the petitioner as also other other objections were not considered as they were hopelessly barred by time and had been received after publication of the final notification. This stand is specifically taken in the supplementary counter affidavit filed on behalf of the respondents 1, 2 and 3, whose affidavit has been sworn by Shri Rajendra Mani Tripathi, Deputy Secretary, Urban Development Department Anubhag-1, Government of U.P Lucknow.
In the affidavit, it has been stated that village Kothila Khas was situated adjacent to the boundary of the proposed Nagar Panchayat and in a compact and continuous area thereof and therefore, Kothila Khas had also been included in the final notification.
None of the affidavits filed on behalf of the respondents state that village Kothila Khas was included in the preliminary notification published on 24.05.2016.
Under the circumstances, the Court held that such inclusion is patently illegal and violative of the mandate of Section 3 and 4 of the Municipalities Act as also Article 243-Q(2) of the Constitution.
Although the Court also noted that certain areas of other villages, which were not part of the preliminary notification, have also been included in the final notification, we are not going into that aspect because the petition filed by the petitioner is confined to the inclusion of village Kothila Khas in the final notification.
Accordingly and in view of the above, the Court allowed the petition and set aside the final notification dated 05.12.2019 insofar as it includes areas of village Kothila Khas in the final notification because these areas were not part of the preliminary notification dated 24.05.2016 issued/published in accordance with Section 4 of the Uttar Pradesh Municipalities Act, 1916 read with Article 243-Q(2) of the Constitution of India.