Supreme Court To Hold UP Chief Secretary Personally Liable If Election For Newly Constituted Municipal Council Not Held Within 2 Months

"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 on that behalf", the Bench said.

A Division Bench comprising Justice AM Khanwilkar and Justice CT Ravikumar has directed the State Government to 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.

The Bench has directed the Commission to submit a compliance report within two months, which be placed before the Court for consideration soon thereafter.

The Bench has issued the direction noting that the time granted by the Allahabad High Court to hold election of newly created Municipal Council Siswan Bazar had elapsed long back and the administrator continues to be in charge of the newly created Municipal Council, which cannot be countenanced.

The directions have been issued by the Court in special leave petitions challenging the following two orders of the Allahabad High Court:

• The High Court order dated 8th February 2021 directed the District Magistrate, Maharajganj is directed to hold the election of newly created Municipal Council, Siswan Bazar, as early as possible, however not later than three months

• The High Court's order dated 9th August 2021 upheld the directions issued by State Government and District Magistrate for appointment Administrator Nagar Palika Parishad, Siswan, Bazar.

The Bench made note of the principal argument made on behalf of the petitioner that the status of Nagar Panchayat is not altered even though some new area has been added to its limits to make it a Municipal Council in terms of notification dated 31.12.2019.

The Bench observed that the argument 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.

According to the Bench, the fact remains that the area in question has been upgraded to Municipal Council area, and it is therefore, not a case of expansion of Nagar Panchayat area as is sought to be projected by the petitioners.

The Bench, therefore, refused to interfere in both these Special leave petitions.

Facts:

The petitioner before the Supreme Court Court and the High Court is an elected Chairman of Nagar Panchayat, Siswan Bazar who was elected when the last election of the Nagar Panchayat was held on 1st December 2017.

A notification dated 10th December 2019 was issued by the State Government for constitution of the Municipal Council (Nagar Palika Parishad) in Siswan Bazar, Maharajganj comprising of 22 Revenue villages /17 Gram Panchayats around the Nagar Panchayat area.

High Court's Order dated 8th Feb: Consequent to the notifications issued by the State Government, a PIL was filed seeking directions to dissolve the erstwhile Nagar Panchayat, Siswan Bazar, Maharajganj and constitution of the Municipal Council and Ward Committee in accordance with provisions of Article 243-Q, 243-R, 243-S, 243-T, 243- U read with Section 9 and 10A of the U.P Municipality Act, 1916.

Further, the PIL sought appointment of an administrator in Municipal Council, Siswan Bazar, District Maharajganj till the election of the Chairperson and Ward Committee of the newly constituted Municipal Council Siswan Bazar, Maharajganj.

The High Court through its order dated 8th February 2021 directed 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

The Court had held that it was the bounden duty of the District Magistrate as early as possible make preliminary arrangements for the holding of first elections, since it was evident that with the Notification dated 31.12.2019 Municipal Council, Siswan Bazar, District Maharajganj was constituted.

The High Court held that the non-holding of election for over one year reflects inaction and non performance of statutory obligation, by the District Magistrate.

High Court's Order dated 9th August 2021 in Writ Petition: In compliance of the High Court's order dated 8.2.2021 the State Government had issued an order dated 2nd June 2021 for appointment of the Administrator in respect of the Nagar Palika Parishad Siswan Bazar citing the provisions of Sections 333, 333-A and 343 of the U.P Municipalities Act, 1916. The District Magistrate, Maharajganj appointed the Additional Sub Divisional Magistrate, Maharajganj as Administrator, Nagar Palika Parishad, Siswan, Bazar until further orders.

These two orders were challenged in writ petition before the High Court.

Considering the provisions of the U.P Municipalities Act, specifically Section 3(1), Section 333 and Section 333-A of the Act, 1916, the Bench was of the view that the transition of Nagar Panchayat into a Nagar Palika Parishad is a declaration under Section 3(1) of the Act, 1916, and provisions of Section 3(2) of the Act are not attracted in the instant case.

Further, the High Court noted that Nagar Panchayat and Nagar Palika Parishad (Municipal Council) are included in the word "municipality" which is an institution of self-government referred to in Clause (e) of Article 243-P of the Constitution.

The opening words in Section 333 are "when a new "Municipality" is created under the Act"; which means the creation of Nagar Panchayat, Nagar Palika Parishad, (Municipal Council) or the Municipal area defined in sub-sections '(9-C)', '(9-B)' and '(9-A)' respectively.

Therefore, according to the High Court, the then Nagar Panchayat as defined in sub-section '(9-C)' of Section 2 has now ceased to be in existence with the creation of the Municipal Council (Nagar Palika Parishad) as defined in sub-section (9-B) of Section 2 of the Act.

Further, the Court held that with the creation of a new municipality by virtue of the notification issued under Section 3(1) of the Act, the provision of Section 333 of the U.P Municipality Act, 1916 is to follow.

"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." The Court noted

Considering the scheme of the Act, the Court held that the challenge to the direction issued by the State Government in terms of the judgment and order dated 8.2.2021 of the High Court and the consequential decision of the District Magistrate for appointment of Administrator under Section 333 of the Act, 1916, therefore, cannot be sustained.

Case Details: Ragini Devi vs State of Uttar Pradesh & Ors

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