1/44 Writ-C No.14031/2022

A.F.R.

Reserved

Case :- WRIT - C No. - 14031 of 2022

Petitioner :- Shakuntla Devi

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Man Bahadur Singh

Counsel for Respondent :- C.S.C.,Ashok Kumar Giri,Ashok Kumar

Tiwari,Syed Ahmed Faizan,Ten Singh,Zaheer Asghar

Hon'ble Manoj Kumar Gupta,J.

Hon'ble Ram Manohar Narayan Mishra,J.

(Per Manoj Kumar Gupta, J.)

1.The petitioner is elected Chairperson of Nagar Palika Parishad,

Siswan Bazar, District Maharajganj. She has challenged the notification

dated 26.04.2022 issued by respondent no.1, the State Government,

addressed to District Magistrates of 67 districts, directing them to

initiate exercise for delimitation of wards in 151 Municipalities, which

have been newly constituted or have undergone extension of municipal

limits since the last general election. The list of such Municipalities is

annexed alongwith the impugned notification. Nagar Palika Parishad,

Siswan Bazar is at serial no.22. The petitioner has also prayed for a writ

of mandamus restraining the respondents from initiating process for

holding fresh election of Nagar Palika Parishad, Siswan Bazar,

Maharajganj expected to be held by the end of the year – 2022 and

from interfering in the functioning of the petitioner as Chairperson of

Nagar Palika Parishad, Siswan Bazar until the expiry of the term of

Nagar Palika on 31.03.2027 unless dissolved earlier.

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2.The above reliefs have been claimed in the backdrop of following

facts:

2(1).Siswan Bazar, District Maharajganj was initially notified as a

Nagar Panchayat under Section 3 of the U.P. Town Areas Act, 1914

vide notification dated 3.02.1953. It comprised of 14 wards and the

total population of the Nagar Panchayat as per census of India 2011

was 20963. The last election of Nagar Panchayat, Siswan Bazar was

held on 12.12.2017, whereby the Chairperson and 14 Ward members

were elected, followed by constitution of the Nagar Panchayat.

2(2).Later on, the State Government decided to create a new

Municipal Council (Nagar Palika Parishad) in Siswan Bazar,

Maharajganj by adding 22 revenue villages/ 17 Gram Panchayats in the

existing Nagar Panchayat area and accordingly, issued a draft

notification dated 10.12.2019. It was followed by a final notification

dated 31.12.2019 issued under clause (2) of Article 243-Q of the

Constitution of India read with Section 3 (2) of the U.P. Municipalities

Act, 1916, thereby including the area mentioned in Schedule I of the

notification in the transitional area of Nagar Panchayat Siswan Bazar.

Additionally, the transitional area of Nagar Panchayat Siswan Bazar,

Maharajganj mentioned in Schedule II of the notification was notified

as a smaller urban area (Municipal Council) to be known as Municipal

Council Siswan Bazar, District Maharajganj.

2(3).It led to filing of P.I.L. No.1822 of 2020 (Anoop Kumar Pathak

3/44 Writ-C No.14031/2022

and another Vs. State of U.P. and others) for direction (i) to the State

respondents to dissolve the erstwhile Nagar Panchayat Siswan Bazar,

Maharajganj; (ii) to constitute the Municipal Council and Ward

Committees and (iii) to appoint administrator in Municipal Council,

Siswan Bazar, District Maharajganj. The said writ petition was

disposed of by order dated 8.02.2021 with direction to the District

Magistrate, Maharajganj to hold election of newly created Municipal

Council, Siswan Bazar, as early as possible, however not later than

three months from the date of communication of the order. The

operative part of the order is as follows:-

“In the case at hand evidently with the Notification dated

31.12.2019 Municipal Council, Siswan Bazar, District

Maharajganj is constituted. It was the bounden duty of the

District Magistrate as early as possible make preliminary

arrangements for the holding of first elections. Non

holding of election for over one year reflects inaction and

non performance of statutory obligation, by the District

Magistrate.

In view whereof the District Magistrate, Maharajganj is

directed to hold election of newly created Municipal

Council, Siswan Bazar, as early as possible, however not

later than three months from the date of communication of

this order.”

2(4).In pursuance of the above direction, the State Government vide

its communication dated 2.06.2021 addressed to District Magistrate,

Maharajganj directed him to appoint administrator and to initiate

process for constitution of newly created Nagar Palika Parishad,

Siswan Bazar by holding the elections. The District Magistrate vide

order dated 8.06.2021 issued in purported exercise of power under

4/44 Writ-C No.14031/2022

Section 333 of the U.P. Municipalities Act, 1916 constituted a

Committee of five persons to exercise the power and perform the duties

and functions of newly created Nagar Palika Parishad until it is

established.

2(5).At this stage, Smt. Ragni Devi, the elected Chairperson of Nagar

Panchayat Siswan Bazar, challenged the order of State Government

dated 2.06.2021 and the consequential order of the District Magistrate

dated 8.06.2021 appointing Committee to manage the affairs of the

newly created Nagar Palika Parishad by filing Writ-C No.13629 of

2021 (Smt. Ragni Devi Vs. State of U.P. and 3 others). The said writ

petition was dismissed by order dated 9.08.2021, upholding both the

orders.

2(6).Smt. Ragni Devi aggrieved by the order of this Court dated

8.02.2021 passed in the PIL and the order dated 9.08.2021 passed in her

writ petition approached the Supreme Court by filing SLP No.4233 of

2021 and SLP No.13806 of 2021 respectively. Both the SLPs were

dismissed by the Supreme Court by common order dated 17.9.2021.

The Supreme Court, while upholding the decisions of this Court to hold

first election of the newly constituted Municipal Council, again

directed the authorities to: “ensure that the elections for establishing

the newly constituted Municipal Council Siswan Bazar, is conducted at

the earliest and, in any case, completed within two months from today

and report compliance in that behalf.

5/44 Writ-C No.14031/2022

The State must ensure that all logistical support is provided to the

State Election Commission to ensure that the elections are conducted

by adhering to appropriate Covid-19 protocol, as would be in force at

the relevant time.

If there is laxity on the part of the State in ensuring completion of

the elections within two months from today, the Chief Secretary of the

State of Uttar Pradesh shall be personally responsible in that behalf.”

2(7).On 23.9.2021, District Magistrate, Maharajganj sent a

communication to the Director, Lucknow in regard to compliance of

the order of Supreme Court. While making reference to the letter of

State Government dated 21.9.2021 in connection with the exercise for

determining the number of wards and delimitation, he was requested to

complete the said exercise under intimation to him.

2(8).On 25.9.2021, the State Government issued a notification inviting

objections and suggestion to the draft order relating to delimitation as

stipulated under Section 11-B (2) of the U.P. Municipalities Act, 1916.

It was followed by a final notification dated 7.12.2021, thereby

dividing the Nagar Palika into 25 Wards.

2(9).On 14.02.2022, the State Election Commission, U.P. in

consultation with the State Government issued notification notifying

the election programme for electing the chairperson and members of

Nagar Palika Parishad, Siswan Bazar. In pursuance thereof, election

was held on 13.03.2022 and results were declared on 15.03.2022. The

6/44 Writ-C No.14031/2022

petitioner was declared elected as Chairperson of Nagar Palika

Parishad, Siswan Bazar and a certificate to the said effect was issued in

her favour by the Returning Officer dated 15.03.2022. On 22.03.2022,

the State Election Commission notified the names of chairperson and

members, who were elected. On 29.03.2022, the petitioner subscribed

to oath of office. On 1.04.2022, first meeting of the newly constituted

Nagar Palika was held.

2(10). On 26.04.2022, the State Government issued the impugned

communication addressed to District Magistrates of 57 districts on the

subject relating to delimitation of wards of the newly constituted

municipalities (83 Nagar Panchayats, 2 Nagar Palika Parishads and one

Nagar Nigam). The said exercise was also directed to be held in 66

municipalities that had undergone change of boundaries/ extension of

areas, being 66 in number (36 Nagar Pachayats + 21 Nagar Palika

Parishads + 9 Nagar Nigams). This took the tally to 151 municipalities

in all. The delimitation in the above municipalities was directed to be

held on basis of census of the year 2011. The proposal was to be

forwarded to the State Government by 5.5.2022 in the proforma

prescribed by Government Orders dated 4.04.2017 and 19.07.2017.

Nagar Palika Parishad, Siswan Bazar, Maharajganj is enlisted at serial

no.22 in the list annexed with the communication and where the said

exercise was also to be held. The petitioner, who was elected on

13.03.2022, apprehending that the impugned communication is a step

7/44 Writ-C No.14031/2022

towards holding fresh election and will have the effect of curtailing her

term of five years has preferred the instant petition.

3.The State respondents as well as the State Election Commission

U.P. have filed separate counter affidavits. In reply, the petitioner has

filed separate rejoinder affidavits.

4.One Roshan Kumar has sought impleadment, alleging that he

proposes to contest the election to be held after completion of the

impugned exercise relating to delimitation and is therefore interested in

opposing the writ petition.

5.We have heard Sri Rakesh Pande, learned Senior Counsel assisted

by Sri Man Bahadur Singh for the petitioner, Sri Ambrish Shukla,

learned Additional Chief Standing Counsel for respondents no.1, 3 & 4,

Sri Ten Singh for the State Election Commission U.P., Sri Ashok

Kumar Tiwari, for respondent no.5 i.e. Nagar Palika Parishad through

its Executive Officer and Sri S.F.A. Naqvi, learned Senior Counsel

assisted by Sri Ashok Kumar Giri on behalf of the intervenor - Roshan

Kumar.

6(a).Sri Rakesh Pande, learned Senior Counsel appearing on behalf of

the petitioner submitted that the term of a Municipality under Article

243-U of the Constitution and Section 10-A of the U.P. Municipalities

Act is five years from the date appointed for its first meeting. The first

meeting of the newly constituted Nagar Palika Parishad was held on

1.04.2022 and, therefore, its five years term would expire on

8/44 Writ-C No.14031/2022

31.03.2027. The impugned notification directing the District

Magistrates to initiate the exercise of delimitation of wards of

municipalities which were newly created/limits extended for holding

fresh election, may be legal and valid where elections have not been

held after the upgradation/extension of boundaries, but not in case of

Nagar Palika Parishad Siswan Bazar, which was constituted as a

Municipality for the first time after the election dated 13.03.2022. It

was not a case of dissolution of an existing Municipality and, therefore,

the tenure will be governed by clause (1) of Article 243-U and not by

clause (4) which applies in case of premature dissolution on the

occurrence of certain contingencies envisaged under Section 30 of the

U.P. Municipalities Act, 1916.

6(b). The election held on 11.3.2021 was the first election of the

newly constituted Municipality and its tenure of five years is sacrosanct

by virtue of Article 243-U of the Constitution read with Section 10-A of

the U.P. Municipalities Act, 1916.

6(c). In support of the above submission, he placed reliance on

the decision of this Court in Ragni Devi Vs. State of U.P. and others as

well as the judgement of the Supreme Court in SLP Nos.4233 of 2021

and 13806 of 2021 dated 17.09.2021, wherein this Court and the

Supreme Court have held that upon creation of a new municipality i.e.

Nagar Palika Parishad Siswan Bazar, the existence of predecessor

municipality i.e. Nagar Panchayat, Siswan Bazar had ceased. The

9/44 Writ-C No.14031/2022

administrator appointed to manage the affairs of the new municipality

was under mandate to hold election of newly created municipality so

that the charge is handed over to it.

6(d). He further submitted that before notifying fresh election of

newly constituted Nagar Palika Parishad, the exercise relating to

determination of number of wards and their delimitation was duly held

and this fulfilled the requirement of Section 11-A and 11-B of the U.P.

Municipalities Act, 1916 and Article 243-S of the Constitution.

6(e). He further submitted that the Election Commission

harbouring under some misconception issued the election notification

mistakenly using the term 'bye-election', but also simultaneously

referring to Section 13-G which unequivocally relates to issuance of

notifications for general elections. The term of the newly constituted

Municipality is protected by constitutional mandate and cannot be

shortened by wrong use of some word in the election notification. The

election held in the past in which the petitioner was elected as

Chairperson of the newly constituted Municipality was for all practical

purposes, a general election and not a bye-election and consequently,

the provisions of Article 243-U (4) cannot be pressed to curtail the

constitutional guarantee.

6(f). It is also urged that there cannot be any estoppel or waiver of the

rights conferred by the Constitution. Learned Senior Counsel for the

petitioner has placed reliance on the judgment of the Supreme Court in

10/44 Writ-C No.14031/2022

Olga Tellis and others Vs. Bombay Municipal Corporation and

others

1

and a Division Bench judgment of this Court in Achhey Lal

Vs. V.C. Gorakhpur University

2

.

7(i). Per contra, Sri Ambrish Shukla, learned Additional Chief

Standing Counsel submitted that the election held on 13.03.2021 was a

bye-election and not a general election, as is also mentioned in the

election notification issued by the State Election Commission dated

14.02.2022. According to him, the aforesaid notification when it refers

to Section 13-G makes a reference to the power of State Election

Commission to make provision with respect to issuing of orders

generally on all matters relating to conduct of election (clause q). He

also submitted that the notification is referable to Section 13-H of the

U.P. Municipalities Act 1916 relating to issuance of election

notification by State Election Commission in respect of bye-election.

7(ii).The emphasis was on the fact that the election in which the

petitioner was elected as Chairperson was a bye-election and not a

general election and consequently, clause (iv) of Article 243-U of the

Constitution and Section 10-A (3) of the U.P. Municipalities Act, 1916

will come into play and the petitioner as well as other members elected

in pursuance of the aforesaid notification shall continue in office only

for remainder of the period for which the dissolved Municipality would

have continued under clause (1), had it not been so dissolved. He also

11985 (3) SCC 545

21985 U.P.L.B.E.C. 38

11/44 Writ-C No.14031/2022

placed reliance on the order of Supreme Court dated 23.11.2021 passed

on the application of State Election Commission U.P. in SLP filed by

Ragini Devi whereby the Supreme Court had extended the time

prescribed earlier for holding the elections.

7(iii).He further placed reliance on provisions of Section 3-A,

Section 3-B (8), Section 10-A and Section 151-A of the Representation

of People Act, 1950.

7(iv).He further submitted that the petitioner does not have any

cause of action to file the instant petition. According to him, what has

been challenged as a notification, is in fact only a communication sent

by the State Government to District Magistrates of various districts

where the Municipalities have undergone upgradation/expansion of

boundaries to undertake the exercise of delimitation of wards. It is not

an election notification, therefore, the challenge is premature and based

on mere apprehension.

8.Sri Ten Singh, learned counsel for the State Election Commission

U.P. as well as Sri S.F.A. Naqvi, learned senior counsel appearing for

the intervenor, adopted the arguments of Sri Ambrish Shukla, learned

Additional Chief Standing Counsel.

12/44 Writ-C No.14031/2022

9.The questions which fall for our consideration are: -

(i) Whether the writ petition is premature, based on mere

apprehension, and is liable to be dismissed in limine?

(ii) What was the effect of the notification dated 31.12.2019,

issued by the Governor, in exercise of power under Article 243-Q

of the Constitution, read with Section 3 of the U.P. Municipalities

Act, 1916?

(iii) What was the status of the Municipality constituted in

pursuance of the election held on 13.3.2022?

(iv) Whether the term of the newly constituted Municipality is

governed by clause (1) of Article 243-U or clause (4) of Article

243-U?

(v) What would be the effect of use of word “bye election” in the

election notification dated 14.2.2022, issued by State Election

Commission, U.P. on the status of the newly constituted

Municipality?

(vi) Whether the High Court, in exercise of power under Article

226, can grant any relief to the petitioner?

10.We first proceed to examine the plea relating to writ petition

being premature and based on mere apprehension. The impugned

notification dated 26.4.2021, issued by the State Government, is

addressed to the District Magistrates of 57 districts wherein 151

existing municipalities have either been reconstituted or their territorial

13/44 Writ-C No.14031/2022

limits extended since the last general elections held in the year 2017. It

directs them to initiate the exercise of determination and delimitation of

wards and supply the details in prescribed format appended to the GOs

dated 4.4.2017 and 19.7.2017 by the stipulated date, i.e. 5.5.2022. The

said exercise was to be held on basis of the data of 2011 Census.

11.Section 11-A of the Act relates to delimitation of wards and it

reads thus: -

11A. Delimitation of wards. - (1) For the purpose of election of

members of a municipality every municipal area shall be divided

into territorial constituencies to be known as wards in such

manner that the population in each ward shall, so far as

practicable, be the same throughout the municipal area.

(2) Each ward shall be represented by one member in the

municipality.

12.The exercise of delimitation of wards as per the above provision

is held for the purpose of holding election of members of a

municipality. It is a step-in-aid towards constitution of a municipality

which under Section 9 comprises of the elected Chairperson

(President); elected members; ex-officio members; nominated members

and Chairperson of the Committees established under Section 104 of

the Act.

13.In paragraph nos. 35, 36 and 41 of the writ petition, it is

specifically asserted by the petitioner that the above exercise of

determination and delimitation of wards was intended to be held in the

newly created, upgraded and extended Municipalities, along with other

14/44 Writ-C No.14031/2022

urban local bodies, whose terms are expiring by end of the year 2022. It

is also asserted that the said exercise was not required to be undertaken

in respect of the petitioner’s municipality, the election of which was

held recently on 13.3.2022, after carrying out the same exercise, i.e.

determination of wards and their delimitation. In paragraph 15 and 16

of the counter affidavit filed by the State, it is asserted that the exercise

relating to determination of number of wards and delimitation in

respect of the petitioner’s municipality is being undertaken, as its term

is expiring in December, 2022 and consequently, fresh elections are to

be held. Same stand has been taken by the State Election Commission,

U.P. in the counter affidavit filed by it.

14.It is evidently clear that the impugned exercise for determination

of wards and their delimitation in respect of Nagar Palika Parishad,

Siswan Bazar, Maharajganj, was undertaken in pursuance of the

impugned notification to pave way for holding of fresh elections in

December, 2022, when elections of other municipalities is also

scheduled to be held. As the specific case of the petitioner is that its

term is upto 31.3.2027 and fresh exercise undertaken in pursuance of

the impugned notification will have the effect of curtailing the duration

of Municipality she is heading, she definitely has an actionable right in

presenti to challenge the notification and the consequential exercise, to

protect her constitutional and statutory rights. The petitioner cannot be

made to wait till the notification for holding the election is published,

15/44 Writ-C No.14031/2022

when the stand of the respondents is clear and unambiguous in relation

to the proposed election scheduled to be held in December, 2022. We

thus find no force in the contention that the petition is premature, or is

based on mere apprehension.

15.We now proceed to examine the issues arising in the case on

merits.

16.A bird’s-eye view of the relevant provisions of the Constitution,

particularly Part IX-A, inserted by the Constitution (Seventy Fourth

Amendment) Act, 1992, and cognate enactments which deal with

Municipalities, will help in understanding and analysing the issues at

hand. Part IX-A came into effect from 1.6.1993. It defines

“Municipality” under Article 243-P(e), as an institution of self-

government constituted under Article 243-Q.

17.Article 243-Q relates to Constitution of Municipalities and reads

as follows: -

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 the 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.

16/44 Writ-C No.14031/2022

(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.

18.Article 243-Q envisages three levels of Municipalities to

administer (i) a transitional area, that is to say an area in transition from

a rural area to an urban area, to be known as a Nagar Panchayat; (ii) a

smaller urban area, to be known as a Municipal Council and (iii) a

larger urban area, i.e. a Municipal Corporation. Article 243-Q(2)

defines these to mean 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.

19.In order to carry out the mandate of the Constitution (Seventy

Fourth Amendment) Act, 1992, the U.P. Municipalities Act, 1916 was

amended. Section 3 of the Act provides for the Declaration etc. of the

transitional areas and smaller urban areas and reads thus: -

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.

17/44 Writ-C No.14031/2022

(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.

20.Section 3 is similar provision in the U.P. Municipal Corporation

Act, 1957 and it reads thus: -

Section 3 – Declaration of larger 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 larger urban area, shall be known as a

City, by such name as he may specify.

(2) Where, by a subsequent notification under Clause (2) of

Article 243-Q of the Constitution the Governor includes any area

in a city, such area shall thereby become subject to all

notifications, rules, regulations, bye-laws, orders and directions

issued or made under this or any other enactment and in force in

the city at the time immediately preceding the inclusion of such

area and all taxes, fees and charges imposed under this Act, shall

be and continue to be levied and collected in the aforesaid area.

21.In the case at hand, the State Government by notification dated

31.12.2019, included the areas mentioned in Schedule-I of the

Notification in the transitional area of Nagar Panchayat, Siswan Bazar,

Maharajganj, and simultaneously upgraded Nagar Panchayat, Siswan

Bazar, Maharajganj to the level of a Municipal Council, i.e. a smaller

urban area comprising of territorial area mentioned in Schedule-II of

the Notification. It is referable to the constitutional power vested in the

18/44 Writ-C No.14031/2022

Governor under Article 243-Q of the Constitution and Section 3 of the

U.P. Municipalities Act, 1961.

22.The aforesaid exercise was called in question by Ragini Devi, the

then Chairperson of Nagar Panchayat by way of a writ petition

3

before

this Court, on the ground that she was elected on 1.12.2017 and the

notification issued by the State Government dated 31.12.2019 had the

effect of cutting short her tenure of five years. She also called in

question the order passed by the State Government dated 2.6.2021 and

the consequential order of the District Magistrate dated 8.6.2021,

appointing a Committee to manage the affairs of newly constituted

Nagar Palika Parishad. However, the challenge was repelled by this

Court by its order dated 9.8.2021, holding that the exercise undertaken

in pursuance of notification issued by the State Government was

referable to Section 3(1) of the Act, whereunder as noted above, the

Governor is vested with the power to issue notification in terms of

clause (2) of Article 243-Q of the Constitution, declaring the

transitional area of a Nagar Panchayat as a Municipal Council (smaller

urban area) with such limits, as are specified therein. As a necessary

corollary thereof, it was held that Section 333 of the Act would come

into play and the Municipal Council which was newly created, would

be managed by the District Magistrate, or other officer, or committee,

or authority appointed by him in this behalf, until a Municipality is

3Writ – C No. 13629 of 2021

19/44 Writ-C No.14031/2022

established, after holding of first elections thereof.

23.Section 333 of the Act is reproduced for ready reference: -

333. Exercise by District Magistrate of Municipality's power

pending establishment of Municipality - When a new

municipality is created under this Act, the District Magistrate, or

other officer, or committee, or authority appointed by him in this

behalf, may until a Municipality is established, exercise the

powers and perform the duties and functions of the Municipality,

and, he or it shall, for the purposes, aforesaid be deemed to be

the Municipality :

Provided always that the District Magistrate or such other

officer, or committee, or authority shall, as early as possible,

make preliminary arrangements for the holding of first elections

and generally of expediting the assumption by the Municipality of

its duties when constituted.

24.The relevant part from the judgment of this Court dated 9.8.2021

in Writ Petition No. 13629 of 2021 (Smt. Ragini Devi vs. State of U.P.)

is reproduced below: -

As regards Section 333-A, the same deals with the consequence

of the declaration of smaller urban area with the notification

issued under Section 3(1) of the Act, 1916. Section 333 of the Act,

1916 makes provision for the transitional period and confers the

power on the District Magistrate, or other officer, or Committee

or authority appointed by him in this behalf, to exercise the

power and perform the duties & functions of the Municipality, till

an elected body takes over.

25.The Supreme Court while dismissing the SLP

4

filed by Ragini

Devi, endorsed the finding that although the notification dated

31.12.2019 refers to Section 3(2) of the U.P. Municipalities Act, 1916,

but as a matter of fact, thereby the area in question had been upgraded

to a Municipal Council and thus, the erstwhile Nagar Panchayat had

4SLP No. 4233 of 2021

20/44 Writ-C No.14031/2022

ceased to exist. The relevant observations made in this behalf by the

Supreme Court are as follows: -

The argument though attractive, at the first blush, clearly

overlooks the dispensation provided for under Article 243-Q of

the Constitution of India. It refers to municipalities or Municipal

Council areas of different types such as Nagar Panchayat,

Municipal Council and Municipal Corporation, depending on the

area and other factors to establish such an entity. Although, the

notification refers to Section 3(2) of the Uttar Pradesh

Municipalities Act, 1916 (for short, "the 1916 Act") the fact

remains that the area in question has been upgraded to

Municipal Council area. It is, therefore, not a case of expansion

of Nagar Panchayat area as is sought to be projected by the

petitioner(s).

Perhaps, keeping that in mind in another case, the High Court

vide order dated 09.08.2021 in Writ Petition(C) No. 13629 of

2021 rejected the claim of the petitioner(s) therein on the finding

that the Nagar Panchayat of which the petitioner(s)' claim to be

elected representative had ceased to be in existence with the

creation of Municipal Council (Nagar Palika Parishad) as

defined in sub-Section (9-B) of Section 2 of the 1916, Act and

with the creation of new municipality by virtue of the stated

notification, the provision of Section 333 of the 1916 Act would

follow. That view is a possible view.

26.The Supreme Court also deprecated inaction on part of the State

in not holding fresh election for the newly created Municipal Council,

Siswan Bazar, Maharajganj in the time frame prescribed by this Court

in PIL No. 1822 of 2020. The Supreme Court issued fresh direction to

the State Election Commission, U.P. to ensure holding of elections for

establishing the newly constituted Municipal Council, Siswan Bazar,

Maharajganj at the earliest, however not later than two months from the

date of the order.

27.There are several precedents on the subject, which take the same

21/44 Writ-C No.14031/2022

view. We proceed to note some of those to have a better understanding

of the legal implications of exercise of power under Article 243-Q of

the Constitution.

28.In State of Maharashtra and Another vs. The Jalgaon

Municipal Council

5

, Supreme Court considered the provisions of the

Constitution (Seventy Fourth Amendment) Act, 1992 and held that the

effect of exercise of power under Article 243-Q is that the predecessor

Municipality ceases to exist. In consequence it was held that Article

243-U which guarantees a fixed duration of five years to a

Municipality, cannot be applied to a case where the area of one

description is converted into an area of another description and one

description of Municipality is ceased by constituting another

Municipality of a better description. In line with the said reasoning, it

was also held that the statutory provisions do not contemplate a

situation where the erstwhile Municipality would continue to exist, as it

would result in anomaly and confusion. The relevant part from the

judgment is reproduced below: -

21. Having heard the learned Counsel for the parties at length on

this aspect we are of the opinion that the said hiatus is an

unavoidable event which must take place in the process of

conversion of Municipal Council into a Municipal Corporation.

Reliance on Article 243-U by the learned counsel for the

respondents in this context is misconceived. The use of expression

'a municipality' in sub-Article (3) of Article 243-U in the context

and in the setting in which it is employed suggests and means the

duration of the same type of municipality coming to an end and

the same type of successor municipality taking over as a

52003 (9) SCC 731

22/44 Writ-C No.14031/2022

consequence of term of the previous municipality coming to an

end. Article 243-U cannot be applied to a case where the area of

one description is converted into an area of another description

and one description of municipality is ceased by constituting

another municipality of a better description. Article 243-U(3)

cannot be pressed into service to base a submission on that an

election to constitute a municipal corporation is required to be

completed before the expiry of duration of a municipal council.

The constitution of Municipal Corporation would require

notification of larger urban area and a Municipal Corporation to

govern it. The area shall have to be divided into wards with the

number of corporators specified and reservations made. The

Corporation would need to nominate councillors. The territorial

limits may need to be altered. The State Election Commission

cannot conduct election without specifying numbers and

boundaries of wards. New rules, bye-laws etc. shall need to be

framed and municipal tax structure may need to be recast. The

statutory provisions do not contemplate a situation where the

same area may be called a smaller and larger area

simultaneously and process of constitution of Municipal

Corporation being commenced and completed though the

Municipal Council continues to exist. Such an action would

result in anomaly and confusion if not chaos.

29.Again, a Division Bench of this Court in Keshav Dev Kushwaha

vs. State of U.P. and Others

6

, relying on observations made by the

Supreme Court in State of Maharashtra vs. Deep Narain Chavan

7

,

observed as follows: -

“At the outset, it must be noted that the petition in question is not

one which is filed in the public interest. The petition is by an

elected member of the Nagar Palika Parishad, Firozabad.

Elections to the Nagar Palika Parishad were held on 26 June

2012 and the petitioner claims an indefeasible right to hold office

for a period of five years. In fact, that is the basis on which

prayer (iii) seeks a mandamus to the respondents not to curtail

the term of the Nagar Palika Parishad and to allow the petitioner

and other elected members to continue to perform their duties.

62014 (9) ADJ 536

7(2002) 10 SCC 565

23/44 Writ-C No.14031/2022

Such a submission cannot be countenanced. The elected members

of the Nagar Palika Parishad had, in fact, resolved on 20

October 2011 to recommend the constitution of a municipal

corporation. Be that as it may, there is no merit in the plea of the

petitioner that elected members of the erstwhile Nagar Palika

Parishad must continue until their term of five years comes to an

end. This point is no longer res integra and is governed by a

decision of the Supreme Court in State of Maharashtra Vs. Deep

Narayan Chavan, (2002) 10 SCC 565 where the Supreme Court,

while dealing with the provisions of the Maharashtra Municipal

Councils, Nagar Panchayats and Industrial Townships Act, 1965,

held as follows:

".. under Section 341 of the Maharashtra Municipal

Councils, Nagar Panchayats and Industrial Townships Act,

1965 when the whole of the local area comprising a

municipal area ceases to be a municipal area, with effect

from the date on which such local area ceases to be a

municipal area, the Council constituted for such municipal

area shall cease to exist or function and the Councillors of

the Council shall vacate office. Article 243-U of the

Constitution unequivocally indicates that every

Municipality, unless sooner dissolved under any law for the

time being in force, shall continue for five years from the

date appointed for its first meeting and no longer. The

expression "unless sooner dissolved under any law for the

time being" would bring within its sweep the provisions of

Section 341 of the Maharashtra Municipal Councils, Nagar

Panchayats and Industrial Townships Act, 1965 and

therefore the moment the Corporation is constituted in

accordance with law, the elected Municipal Council would

cease to function and so also the Councillors, though

elected will have to vacate the office..."

30.Another Division Bench of this Court in Nagar Palika Parishad

vs. State of U.P. and Others

8

, dealt with the issue as follows: -

“16. Apart from what is said above, Article 243U of the

Constitution of India suggests and means the duration of the

same type of Municipality coming to an end and the same type of

successor Municipality taking over as a consequence of term of

the previous Municipality coming to and end either prior to the

period of 5 years or at the end of 5 years. In other words Article

82010 (3) ADJ 703

24/44 Writ-C No.14031/2022

243U cannot be pressed into service in a case where the area of

one description is converted into an area of another description

and one description of Municipality is ceased by constituting

another Municipality of a better description, that is to say that

where the dissolution is fair accompli and the Municipality

cannot be revived as it was before, the same cannot be termed a

dissolution as envisaged under Article 243U and in such an event

the provisions of Article 243U are not at all violated if an

Administrator is appointed under Section 8AA.”

31.The same view has been taken by this Court in Smt. Mohini

Sharma vs. State of U.P.

9

. The relevant part from the said judgment is

as follows: -

“18. A bare perusal of the Section 5 of U.P. Municipalities Act,

1916, would go to show that whereby a notification referred to in

sub-section (2) of Section 3 the Governor includes any area in a

transitional area or smaller urban area, such area shall thereby

become subject to all notifications, rules, regulations, bye-laws,

orders, directions, issued or made under this or any other

enactment and in force throughout the transitional area or

smaller urban area, at the time immediately preceding the

inclusion of the area. Thus the affairs of the same will have to be

governed under the provisions of U.P. Municipalities Act, 1916

and it may be true that Pradhan in question has been elected for

a period of five years but once the very identity of the Gram

Panchayat in question has been lost on account of inclusion of

such area, then the provisions of U.P. Panchayat Raj Act, 1947,

would not at all operate and same will have to be governed under

the provisions of the U.P. Municipalities Act, 1916. Any other

view would tantamount to diluting the provisions of Section 5 of

U.P. Municipalities Act, 1916.

20. Article 243-E deals with duration of Panchayat, Article 243-

U deals with duration of Municipalities and both the

constitutional provisions share in common the expression "unless

sooner dissolved under any law for the time being in force". Once

Governor takes a call for constitution of municipality in exercise

of authority conferred under the constitution namely Article 243-

Q that specifically refers to three type of municipalities i.e. Nagar

Panchayat for transitional area, a Municipal Council for a

92016 (10) ADJ 221

25/44 Writ-C No.14031/2022

smaller urban area and Municipal Corporation for a larger

urban area, the moment declaration is made under Article 243-Q

read with Section 3 of the U.P. Municipalities Act, 1916, by the

State Government, then the said municipal body would be a

sovereign body having both constitutional and statutory status.

As already noted in the earlier part of the judgement, the

constitutional as well as statutory provisions pertaining to

'Panchayats' would go to show that object of Part IX of the

Constitution was to introduce the panchayat system at grass root

level and strengthen the panchayat system by giving uniform

constitutional vibrant units of administration in the rural area so

that there can be rapid implementation of rural development

sector. Once there is complete transformation from rural area to

urban area having regard to population of area, the density of

population therein, the revenue generated from local

administration, the percentage of employment in non-agricultural

activities, the economic importance and other factors, made by

the State Government, then the said area is denoted in the

notification would be out from the purview of Part IX of the

Constitution and the provisions of U.P. Panchayat Raj Act, 1947

and the affairs of the said area treating the same to be urban

area would be covered by the provisions of Part IX A of

Constitution alongwith the provisions of U.P. Municipalities Act,

1916.”

32. In Nilesh Singh Vs. State of U.P. and 4 others

10

, the effect of

issuance of notification under Article 243-Q of the Constitution was

considered in the context of the provisions of the U.P. Municipalities

Act, 1916 and the U.P. Panchayat Raj Act, 1947. The Gram Pradhan of

the panchayat area, which was upgraded to a Nagar Panchayat and as a

consequence whereof he ceased to be in office, had challenged the

notification. This Court in its judgment dated 8.09.2022 considered the

constitutional scheme and repelled the plea holding as follows:-

“5. Constitution defines a 'Panchayat' under Article 243(d) as an

institution of self-government constituted under Article 243-B, for

10Writ-C No.25471 of 2022

26/44 Writ-C No.14031/2022

the rural areas. Article 243-E mandates that every Panchyat,

unless sooner dissolved under any law, for the time being in

force, shall continue for five years from the date appointed for its

first meeting and no longer.

6. Similarly under Section 12 of the U.P. Panchayat Raj Act,

1947, the term of the Gram Panchayat is five years. Our

Constitution is a living document. The Parliament while

introducing the 74th Amendment, 1992 conferring constitutional

status to institutions of self-Government like Panchayats and

Municipalities, was alive of the reality that urbanisation is

making inroads in the rural areas. The constitutional scheme

envisages constitution of a Nagar Panchayat for a transitional

area that is to say, an area in transition from a rural area to an

urban area; Municipal Council for a smaller urban area; and

Municipal Corporation for a larger urban area.

9. Under Section 3-A(2) of the Act, every Nagar Panchayat or

Municipal Council constituted under sub-section (1) is a body

corporate. Thus, with the issuance of the impugned notification,

an entirely new body in the name of Nagar Panchayat - Haisar

Bazar has come into existence. It has a separate and distinct

identity from its predecessor i.e., the Gram Panchayats whose

territories have been merged in constituting the Nagar

Panchayat. The provision of Article 243-E and Section 12 of the

U.P. Panchayat Raj Act cannot be read in isolation but

harmoniously, alongwith the other provisions of the Constitution

and the Act. Under Section 333 of the Act, the District Magistrate

has been invested with power to perform the functions and duties

of the newly constituted Municipality until the holding of first

election.”

33.Having regard to the legal position enunciated above, we hold

that the effect of the Notification dated 31.12.2019 was that Nagar

Panchayat, Siswan Bazar, ceased to exist. The territorial limits of the

erstwhile Nagar Panchayat, Siswan Bazar, was expanded by including

therein 22 revenue villages/17 Gram Panchayats. A new Municipality

of better description (Municipal Council), by the name Nagar Palika

Parishad, Siswan Bazar, came to be constituted. This resulted in coming

27/44 Writ-C No.14031/2022

into being of a new entity, independent and distinct from erstwhile

Nagar Panchayat. It is a body corporate in terms of Section 3-A(2) of

the U.P. Municipalities Act, 1916. Thereafter, followed the exercise for

its composition as provided by Article 243-R which reads thus: -

243R. Composition of Municipalities - (1) Save as provided in

clause (2), all the seats in a Municipality shall be filled by

persons chosen by direct election from the territorial

constituencies in the Municipal area and for this purpose each

Municipal area shall be divided into territorial constituencies to

be known as wards.

(2) The Legislature of a State may, by law, provide—

(a) for the representation in a Municipality of—

(i) persons having special knowledge or experience in Municipal

administration;

(ii) the members of the House of the People and the members of

the Legislative Assembly of the State representing constituencies

which comprise wholly or partly the Municipal area;

(iii) the members of the Council of States and the members of the

Legislative Council of the State registered as electors within the

Municipal area;

(iv) the Chairpersons of the Committees constituted under clause

(5) of article 243S:

Provided that the persons referred to in paragraph (i) shall

not have the right to vote in the meetings of the Municipality; (b)

the manner of election of the Chairperson of a Municipality.

34.Article 243-R contemplates that all seats in a municipality shall

be filled by persons chosen by direct election from the territorial

constituencies in the municipal area and for this purpose, each

municipal area shall be divided into territorial constituencies to be

known as “wards”. The legislature of a State may by law, provide for

the representation in a municipality of persons having special

knowledge or experience in municipal administration; the members of

28/44 Writ-C No.14031/2022

the House of People and the members of the Legislative Assembly of

the State representing constituencies which comprise wholly or partly

the municipal area, the members of the Council of State and the

members of the Legislative Council of the State, registered as electors

within the municipal area; the Chairpersons of the Committee

constituted under clause (5) of Article 243-S. In order to carry out the

constitutional mandate, the U.P. Municipalities Act, 1916 was amended

by U.P. Act No. 12 of 1994 and Section 9 thereof prescribes for the

manner of Composition of Municipalities as follows: -

9. Composition of Municipality. - (1) A Municipality shall

consist of a President, who shall be its Chairperson, and, -

(a) the elected members, whose number shall, -

(i) in the case of a Nagar Panchayat, be not less than 10,

and not more than 24; and

(ii) in the case of a Municipal Council, be not less than 25

and not more than 55, as the State Government may, by

notification in the Official Gazette specify;

(b) the ex-officio members, comprising all members of the House

of the People and the State Legislative Assembly representing

constituencies which comprise wholly or partly the municipal

area;

(c) the ex-officio members, comprising all members of the

Council of States and the State Legislative Council who are

registered as electors within the municipal area;

(d) nominated members, who shall be nominated by the State

Government, by notification in the Official Gazette, from

amongst persons having special knowledge or experience in

municipal administration and whose numbers shall in the case of

-

(i) Nagar Panchayat, be not less than two and not more

than three;

(ii) Municipal Council, be not less than three and not more

than five;

(e) the Chairperson of the committees, if any, established under

Section 104, if they are not members under any of the foregoing

clauses :

29/44 Writ-C No.14031/2022

[Provided that the persons referred to in clause (d) shall hold

office during the pleasure of the State Government and they shall

have the right to vote in the meetings of the Municipalities.]

Provided further that any vacancy in any category of members

referred to in clauses (a) to (e) shall be no bar to the constitution

or reconstitution of a municipality.

35.It is clear from the Constitutional Scheme and the statutory

provisions that first step towards composition of a Municipality is to

initiate exercise for holding election of the Chairperson (President) and

its members. The direction of the Supreme Court and this Court to the

State Election Commission, U.P. to hold elections was intended to

achieve the above constitutional mandate. Indisputably, the elections of

newly constituted Nagar Palika Parishad, Siswan Bazar, was held on

13.3.2022. The result of the election of twenty five ward members and

Chairperson was declared on 15.3.2022. They subscribed to oath of

office on 29.3.2022 and the first meeting of the newly constituted

municipality was held on 1.4.2022. The above exercise aided in the

composition of the Municipality in terms of Article 243-R and Section

9 of the U.P. Municipalities Act, 1916.

36.We now proceed to examine as to what would be the duration of

the Municipality so constituted and composed. Article 243-U prescribes

for the term of Municipalities and it reads thus: -

243U. Duration of Municipalities, etc. -

(1) Every Municipality, unless sooner dissolved under any law

for the time being in force, shall continue for five years from the

date appointed for its first meeting and no longer: Provided that

a Municipality shall be given a reasonable opportunity of being

30/44 Writ-C No.14031/2022

heard before its dissolution.

(2) No amendment of any law for the time being in force shall

have the effect of causing dissolution of a Municipality at any

level, which is functioning immediately before such amendment,

till the expiration of its duration specified in clause (1).

(3) An election to constitute a Municipality shall be completed,—

(a) before the expiry of its duration specified in clause (1);

(b) before the expiration of a period of six months from the

date of its dissolution:

Provided that where the remainder of the period for which the

dissolved Municipality would have continued is less than six

months, it shall not be necessary to hold any election under this

clause for constituting the Municipality for such period.

(4) A Municipality constituted upon the dissolution of a

Municipality before the expiration of its duration shall continue

only for the remainder of the period for which the dissolved

Municipality would have continued under clause (1) had it not

been so dissolved.

37.Likewise, Section 10-A of the U.P. Municipalities Act, 1916

provides as under: -

10A. Term of municipality. - (1) Every municipality shall, unless

sooner dissolved under Section 39, continue for five years from

the date appointed for its first meeting and no longer.

(2) An election to constitute a municipality shall be completed, -

(a) before the expiry of its term specified in sub-section (1);

or

(b) before the expiration of a period of six months from the

date of its dissolution :

Provided that where the remainder of the period for which the

dissolved municipality would have continued is less than six

months, it shall not be necessary to hold any election under this

sub-section for constituting the municipality for such period.

(3) A municipality constituted upon the dissolution of a

municipality before the expiration of its duration shall continue

only for the remainder of the period for which the dissolved

municipality would have continued under sub-section (1), had it

not been so dissolved.

(4) Notwithstanding anything to the contrary contained in any

other provision of this Act, where, due to unavoidable

31/44 Writ-C No.14031/2022

circumstances or in the public interest, it is not practicable to

hold an election to constitute a Municipality before the expiry of

its term, then until the due constitution of such Municipality, all

the powers, functions and duties of the Municipality shall be

exercised and performed by the District Magistrate or by a

Gazetted Officer not below the rank of a Deputy Collector

appointed by the District Magistrate in this behalf, and such

District Magistrate or Officer shall be called the Administrator,

and such Administrator shall be deemed in law to be the

Municipality, the President or the Committee as the occasion

may require.

38.Article 243-U(1) is a constitutional guarantee, extended to every

municipality to a fixed term of five years from the date appointed for its

first meeting, unless sooner dissolved under any law for the time being

in force. Section 10-A(1) is pari materia with the above constitutional

provision and was inserted in the statute to give effect to the

constitutional mandate.

39.The contention of learned Additional Chief Standing Counsel as

noted above is that Article 243-U itself draws an exception in relation

to the duration of municipalities. The term of five years is subject to a

municipality being dissolved under any law, as had happened in the

instant case and consequently, the new municipality constituted in its

place will continue only for the remainder of the period, i.e. upto

December, 2022 in terms of clause (4) of Article 243-U.

40.In support of the said contention, he has placed heavy reliance on

the use of word “bye-election” in the notification issued by the State

Election Commission dated 14.2.2022. He further placed reliance on

32/44 Writ-C No.14031/2022

the order of the Supreme Court dated 23.11.2021, passed on the

applications filed by the State Election Commission, seeking further

time from the Supreme Court to hold the elections. It is submitted by

him that the Supreme Court while extending the time limit for holding

election, had approved the time frame given in para 22 of the additional

affidavit filed on behalf of the State Government and wherein at Item

No. 15, the election that was to be held, was described as a “bye-

election”.

41.Per contra, learned counsel for the petitioner, submitted that

dissolution envisaged under clause (1) of Article 243-U, is that

prescribed by Section 30 of the U.P. Municipalities Act, 1916 on

happening of certain contingencies and not as a result of automatic

dissolution of municipality, consequent to its upgradation to a higher

level, inasmuch as, it results in formation of a new and distinct entity

and not the continuation of the earlier municipality. He further

submitted that the constitutional protection to the duration of

municipality cannot be curtailed by use of any wrong word in the

election notification, particularly, when the election held in March 2022

was after undertaking exercise of delimitation and reservation of

constituencies.

42.Undoubtedly, Article 243-U guarantees a fixed term of five years

to every municipality. The same provision however also provides that

the term of a municipality can be curtailed consequent to its dissolution

33/44 Writ-C No.14031/2022

“under any law for the time being in force”.

43.The phrase “under any law” has been defined in Concise Law

Dictionary as follows: -

Under a law: The words “under a law” signify those cases

where the disqualification to stand for election is not to be found

in the parliamentary statute itself but is imposed by virtue of

power enabling this to be done; in other words, where it is

imposed by a law made by a subordinate law making authority.

44.According to the above definition, the phrase “under any law”

refers to a law made by a subordinate law making authority and not the

Parliament itself. Such law is to be found in the U.P. Municipalities

Act, 1916. In fact, Section 10-A unequivocally clarifies the legal

position in this behalf while referring to Section 30 of the U.P.

Municipalities Act, 1916 as the relevant piece of law in respect of

premature dissolution of a municipality on happening of certain

contingencies. Section 30 is as follows: -

30. Power of State Government to dissolve the municipality.- If

at any time the State Government is satisfied that a municipality

persistently makes default in the performance of duties imposed

upon it by or under this Act or any other law for the time being in

force or exceeds or abuses more than once its powers, it may,

after having given the municipality a reasonable opportunity to

show cause why such order should not be made, by order,

published with the reasons therefor in the Official Gazette,

dissolve the municipality.

45.Clause (4) of Article 243-U prescribes that a municipality

constituted upon the dissolution of a municipality before expiration of

its duration, shall continue only for remainder of the period for which

34/44 Writ-C No.14031/2022

the dissolved municipality would have continued under clause (1), had

it not been so dissolved.

46.It is noteworthy that under Section 30, the State Government is

invested with power to dissolve a Municipality on ground of persistent

default on its part in performance of duties imposed upon it by or under

the Act, or any other law for the time being in force, or in cases of

repeated abuse of its power.

47.As the dissolution under Section 30 is based on specific charges,

it has to be preceded by an opportunity of hearing. Article 243-U also

refers to a dissolution of municipality which has to be preceded by an

opportunity of hearing. The opportunity of hearing envisaged under the

above two provisions is not the same as an opportunity provided to file

objections to draft notification [Section 4(2)], before the status of a

municipality is changed or its territorial limit extended in exercise of

power under Article 243-Q and Section 3 of the Act. Moreover, in such

cases, the municipality of one description ceases automatically upon

constitution of municipality of a higher description and no separate

proceeding/order is required for dissolution. This conclusively suggests

that the dissolution which is spoken of in clause (1) of Article 243-U of

the Constitution, is that provided under the statutory law, i.e. the U.P.

Municipalities Act, 1916, or other cognate enactments. Clause (4) of

Article 243-U prescribes for the same eventuality, i.e. dissolution of

municipality under any statutory law in force, like Section 30 in case at

35/44 Writ-C No.14031/2022

hand and not where the municipality had ceased to exist as a result of a

municipality of higher description being constituted in its place.

48.The reliance placed by learned Additional Chief Standing

Counsel on the order of the Supreme Court dated 23.11.2021 also does

not hold any ground. It seems that the order was passed on the

impleadment and modification applications, filed by the State Election

Commission, U.P. and the State Government, in which the State

Government filed an additional affidavit pointing out that before

holding the election, various statutory compliances have to be made,

like exercise for undertaking reservation of seats under Section 9-A,

delimitation of wards and issuance of delimitation order under Section

11-A and 11-B, preparation of electoral roll for every ward and its

revision as per Section 12-B and 12-G and in which, considerable time

will be consumed. The affidavit also mentions that the last general

election of the local bodies in the State was held in the month of

November 2017 and the existing term of the local bodies is going to

expire in November 2022. Therefore, it was further asserted as

follows:-

“22. That in the aforesaid background for completion of various

formalities as per provisions contained in the Uttar Pradesh

Municipalities Act, 1916, the process for holding Election 2022

of Urban Local Bodies in the State, shall have to be commenced

at least six months prior to November 2022 that is during the

period of April – May 2022. As such it would be highly

appropriate to hold the election of Municipal Council (Nagar

Palika Parishad) Siswa Bazar alongwith proposed Municipal

Body Election of year 2022.

36/44 Writ-C No.14031/2022

23. It is needless to mention that in view of the above facts and

circumstances of the case at least a minimum period of about 4

months is humbly sought for from this Hon’ble Court in ends of

justice for completion of all the procedural

formalities/requirements to comply with the provisions as

contained in Section 9 to Section 13 of the Uttar Pradesh

Municipalities Act, 1916 before conducting a free and fair

election as directed by this Hon’ble Court vide its order dated

17.09.2021.

24. That it is most respectfully submitted that the process for

delimitation exercise is under progress and for the aforesaid

constituency and if the order for delimitation is finally issued

then the said period of 4 months will be reduced by 15 days.

26. It is, therefore, most respectfully and humbly prayed that this

Hon’ble court may very kindly be pleased to allow the instant

Miscellaneous application no. 1720 of 2021, in the interest of

justice and equity so that election of Municipal Council (Nagar

Palika Parishad) Siswa Bazar may be smoothly conducted within

a period of four months and pass any order or further orders as

deemed fit and proper in the given facts and circumstances.”

49.In paragraph 20 of the said affidavit, by way of illustration, a time

schedule for taking various actions for holding the election was

disclosed, which is as follows: -

“20. That in this connection it is relevant to mention here that for

the purpose of compliance of the aforesaid Statutory Provisions

as contained in the U.P. Municipalities Act, 1916, the procedure

to be followed is a very time consuming process. To illustrate the

time Schedule for various actions is shown in column 3 of the

following chart: -

S. No.Action Requires

Time

1. To issue direction for determination/D-

Limitation of various wards constituting

the local body.

30 days

2. To issue direction to the Director of a

Local Body/District Magistrates, to submit

a proposal for determining the number of

wards.

3. To issue a provisional notification

37/44 Writ-C No.14031/2022

notifying the proposed no. of wards and D-

Limitation of wards, for inviting objection

to it.

4. The District Magistrate to get the aforesaid

provisional notification published in the

local newspaper for inviting objection to it.

5. The District Magistrate to forward the

objections received against the provisional

notification alongwith its

comments/recommendations.

6. The State Govt. to scrutinize and finalize

the objection received from the District

Magistrate.

7. The State Govt. to issue final notification

notifying the number and D-Limitation of

wards as finalized.

8. The State Election Commission to prepare

final revised Electoral list.

For all the

aforesaid

work 20

days are

requried.

9. After the issuance of final notification,

notifying the number and D-Limitation of

wards by the State Govt., the District

Magistrate to collect, after conducting the

Rapid Survey, Figures regarding

population of backward classes and to

forward such figures to the State Govt.

10 days

10.The State Govt. to issue direction to the

Director local bodies/District Magistrate

for providing the details of “Reserved

Wards” and “Reserved Chairman of a local

body”.

For the

work

mentioned

from

Serial No.

10 to 14, a

total of 30

days are

required.

11.The State Govt. to notifying a provisional

notification notifying details of the

“Reserved Wards” and “Reserved

Chairman of a Ward” for objections if any

to its.

12.The Director local body/District

Magistrate to publish the provisional

notification notifying the “Reserved

Wards” and then “Reserved Chairman of a

38/44 Writ-C No.14031/2022

local body” for inviting objections to it if

any.

13.The State Govt. to direct D.M. to forward

objections received against the provisional

notification alongwith its comments/

Recommendations.

14.The State Govt. after scrutinizing and

finalized the objections received through

the District Magistrate to notify final

notification of “Reserved Wards” and

Reserved Chairman of a local body”.

15.Holding of By-Elections by the State

Election Commission after issuing

Notification.

For the

work

mentioned

from

Serial No.

15 to 24, a

total of 30

days are

required.

16.The State Election Commission to issue

notification for holding Elections.

17.The District Magistrate/Election Officer to

issue Public Notice.

18.The Returning Officer to issue Public

Notice

19.To purchase and submit Nomination

forms.

20.The Scrutiny of nomination form

21.Withdrawal of a candidature by a

contestant.

22.Allotment of Symbol

23.To hold Election

24.To hold counting

50.The Supreme Court deprecated inaction on part of the State

Authorities in conducting the election within time prescribed as per

order dated 17.9.2021, but having regard to the prayer of the

respondents and various statutory compliances that were to be made,

extended the time limit, observing thus: -

“We direct all concerned to ensure that the elections are

39/44 Writ-C No.14031/2022

conducted in conformity with the schedule noted herein above

and that the time frame for giving effect to the said schedule

commences from today.

No request for further extension on any ground will be

countenanced hereafter.

We may note that we are not impressed by the submissions

made by the State Election Commission as well as the State

Government that to avoid duplication to election process, the

subject election may be allowed to be conducted along with

elections of other corporations/councils in November, 2022, or

for that matter, when the Assembly elections are due in March,

2022. Instead, we direct the State Election Commission and all

the duty holders to ensure that the election to the subject

Municipal Council/Nagar Palika Parishad is completed as per

the time schedule, referred to above, and the period therefor

commences from today, as aforesaid.”

51.It is apparent from the order of the Supreme Court that it

specifically repelled the request made by the State Government and

State Election Commission, U.P. to hold election of Nagar Palika

Parishad, Siswan Bazar, Maharajganj, along with the election of other

Corporations/Councils in November 2022, but rather directed them to

hold election as per above time frame. The time schedule given by the

State Government in para 22 of its additional affidavit was noted in the

order in context of its plea that four month period was required to make

the statutory compliances. While doing so, the Supreme Court had not

made any adjudication regarding nature of election to be held viz –

general election or bye-election, nor any such controversy was ever

raised before it. On the other hand, the additional affidavit of the State

Government when read as a whole, was intended towards seeking

permission to hold general election of the newly constituted Municipal

40/44 Writ-C No.14031/2022

Council, Siswan Bazar, Maharajganj, along with other urban local

bodies scheduled in November 2022, or in alternative within four

months after completing the formalities as per the time schedule given

in para 20 of the affidavit. Consequently, the submission of learned

Additional Chief Standing Counsel does not merit acceptance.

52.After the dissolution of Nagar Panchayat and constitution of

Municipal Council, Siswan Bazar, Maharajganj, the State Government

was required to notify general election for establishing the municipality

in terms of Section 333 of the Act. This Court while deciding PIL No.

1822 of 2022, by order dated 8.2.2021, had also issued a direction to

District Magistrate to make arrangements for the holding of first

elections. It was upheld by the Supreme Court, consequent upon

dismissal of SLP filed by Ragini Devi, coupled with fresh direction “to

ensure that the elections for establishing the newly constituted

Municipal Council, Siswan Bazar, Maharajganj, is conducted at the

earliest”. The State Government was thus required to notify general

elections for constitution of Nagar Palika Parishad in the newly

constituted Municipal Council. The said exercise was to be done by the

State under Section 13-A, in consultation with the State Election

Commission. As a new municipality was being constituted for the first

time, it ought to have been given its full term of five years. However,

the State Election Commission under some misconception, notified

bye-election, while referring to its power under Section 43-C and

41/44 Writ-C No.14031/2022

Section 13-G of the Act. This would mean that the term of the newly

elected municipality would be only for the remainder of the term of the

erstwhile municipality. It was contrary to the mandate of Article 243-

U(1). The election notification has to be read and interpreted in line

with the constitutional ethos, or else, it would result in complete

annihilation of the safeguards provided under the Constitution.

53.Section 13-H on which reliance has been placed by learned

Additional Chief Standing Counsel also has no application to the facts

of the instant case. It empowers the State Election Commission to fill

up seat of a member when it falls vacant, or is declared vacant, or his

election is declared void. In such an eventuality, the bye-election of the

ward concerned is held, as would be evident from plain reading of sub-

section (1) of Section 13-H, which is reproduced below:-

“13-H. Bye-elections--(1) Subject to the provisions of sub-

section (2) of Section 13-I, when the seat of a member, elected to

a Municipality becomes vacant or is declared vacant or his

election is declared void, the State Election Commission shall in

consultation with the State Government by a notification in the

Official Gazette, call upon the ward concerned to elect a person

for the purpose of filling the vacancy caused before such date as

may be specified in the notification and the provisions of this Act

and of the Rules and Orders made thereunder, shall apply, as far

as may be, in relation to the election of member to fill such

vacancy.”

54.Likewise, the submissions made by learned Additional Chief

Standing Counsel placing reliance on certain provisions of the

Representation of People Act, 1951 also has no relevance to the issue

involved, therefore, there is no need of a detailed discussion of the said

42/44 Writ-C No.14031/2022

provisions.

55.It is noteworthy that both general election and bye-election is

held on basis of adult suffrage. The basic difference between a general

election and a bye-election lies in the procedure followed in holding

such election. A general election is generally preceded by reservation of

seats (Article 243 -T of the Constitution and Section 9-A); delimitation

of wards (Section 11-A and 11-B); preparation and revision of electoral

rolls (Section 12-B and 12-G), whereas the aforesaid exercise may or

may not be done before holding a bye-election.

56.In the case at hand, all the above exercises were duly undertaken.

This is evident from the illustrative chart supplied by the State

Government through its additional affidavit filed before the Supreme

Court in the matter of Ragini Devi

11

. It reveals that the State

Government took 30 days time for completing the exercise of

delimitation of wards, 20 days time for finalizing the electoral list, 30

days time for completing the exercise relating to reservation of seats.

How reservation was applied to the seat of Chairperson and Members is

available on the official website ‘http://sec.up.nic.in’ of the State

Election Commission, U.P. and being in public domain, we take

judicial notice of the same.

57.Fundamentally, we find that all steps, which are required to be

taken under law, had been followed while holding the election in

11(SLP No.4233 of 2021)

43/44 Writ-C No.14031/2022

question. In the ultimate analysis, we find no qualitative difference in

the election that had been held except the use of terminology ‘bye-

election’ in the election notification. Otherwise, the election satisfied all

the requirements of law.

58.Once we find that the election held on 13.3.2022 was after

making all statutory compliances as were required under law for

holding a general election, we have no hesitation in declaring that the

duration of the Municipality i.e. Nagar Palika Parishad, Siswan Bazar,

Maharajganj elected on 13.3.2022 would be five years from the date of

its first meeting in terms of Article 243-U read with Section 10-A of the

Act of the U.P. Municipalities Act. The present Municipality is entitled

to run its full duration of five years from the date of its first meeting.

The stand of the State respondents that its term would expire in

November, 2022 and therefore, exercise for holding general election of

the Municipality is being taken to constitute a new Municipality in its

place, cannot be countenanced, being in teeth of the constitutional

mandate.

59.It would not have been possible for us to give the above relief,

had the election been conducted without the exercise of delimitation,

preparation of electoral roll and application of the reservation roaster.

60.In consequence, we allow the writ petition and quash the

impugned notification/communication dated 26.4.2022 in so far as it

relates to Nagar Palika Parishad, Siswan Bazar, Maharajganj enlisted at

44/44 Writ-C No.14031/2022

serial no.22 in the list annexed with the notification and restrain the

respondents from holding fresh elections of Nagar Palika Parishad,

Siswan Bazar, Maharajganj until it completes its full duration of five

years from the date of its first meeting unless dissolved earlier in

accordance with law.

61.No order as to costs.

Order Date :- 12.10.2022

SL/Jaideep

(Ram Manohar Narayan Mishra, J.) (Manoj Kumar Gupta, J.)