Ashish Saini & Others vs State Of Uttarakhand And Another

Ramesh Ranganathan, CJ

After we had elaborately heard the matter, and had reserved judgment on 03.07.2019, we were informed by Mr. M.C. Pande, learned Additional Advocate General appearing for the State Government, after Court hours on the same day i.e. 03.07.2019, that an interim order was passed by the Supreme Court, in Special Leave Petition (Civil) Diary No.18595 of 2019 dated 02.07.2019, in an appeal preferred against the order passed by a Division Bench of this Court in MCC No.1644 of 2018 dated 15.03.2019, arising out of the order passed in Writ Petition (M/S) No.3142 of 2018 dated 22.10.2018. Since the Supreme Court had directed that the matter be listed before it on 24.07.2019, we refrained from pronouncing judgment in the light of the observations, made in the order of the Supreme Court, that no order by the High Court will come in the way of the State to complete the formalities under Section 32 of the 1959 Act.

Misc. Application with Supplementary Affidavit (IA No.9309 of 2019) was filed, on behalf of the petitioner in Writ Petition (M/S) No.3715 of 2018, on 16.07.2019 requesting us to take on record the supplementary affidavit along with its annexures. In the affidavit filed therein, it is stated that the petitioner had filed IA No.97905 of 2019 before the Supreme Court seeking clarification of the order dated 2.07.2019; considering the urgency of the matter, the counsel for the petitioner had mentioned before the Supreme Court on 09.07.2019; the Supreme Court, considering the urgency, had allowed the prayer for an early hearing of IA No.97905 of 2019, and had directed that the matter be listed on 12.07.2019; after considering the nature of the dispute, with regards exclusion of two areas i.e. Rampur and Padli Gujjar, the Supreme Court had arrived at the conclusion that no clarification was required in respect of the order dated 02.07.2019, and had rejected the application for clarification; the Supreme Court, however, made it clear that rejection of the clarification application would not come in the way of the petitioner (applicant therein) to pursue other remedies as may be permissible in law; the interim order dated 02.01.2019, in Writ Petition (M/S) No. 3715 of 2018 and batch, is still in operation; under the shelter of the order of the Supreme Court dated 02.07.2019, the District Magistrate, Haridwar had issued a tentative notification dated 08.07.2019 for reservation of forty wards of the Municipal Corporation, Roorkee excluding the two areas i.e. Rampur and Padli Gujjar; other areas were also included therein, which are mentioned in the notification dated 06.12.2018; the action of the State Government, and the District Magistrate, Haridwar, is in violation of the interim order in Writ Petition (M/S) No. 3715 of 2018 and batch dated 02.01.2019; in the light of the liberty granted by the Supreme Court, in its order dated 12.07.2019, the Writ Petition be disposed of early; and the petitioner has reasons to believe that the State Government would proceed with the election process, excluding the two areas i.e. Rampur and Padli Gujjar, in violation of Article 243-Q(2) of the Constitution.

Mr. Ajay Veer Pundir, learned counsel for the petitioner in Writ Petition (M/S) No. 3715 of 2018, would submit that the Supreme court had passed the aforesaid order in an appeal preferred by the State Government against the order passed by this Court in MCC No.1644 of 2018 dated 15.03.2019, arising out of the order passed in Writ Petition (M/S) No.3142 of 2018 dated 22.10.2018; by the interim order passed in W.P. No. 3715 of 2018 dated 02.01.2019 and batch it is only the effect and operation of the notification dated 06.12.2018 which was stayed; the notification dated 06.12.2018 relates only to the exclusion of Padli Gujjar and Rampur villages from the limits of Roorkee Municipal Corporation; in its interim order dated 02.01.2019, this Court made it clear that it was not staying the election of the Roorkee Municipal Corporation; the interim order of the Supreme Court dated 02.07.2019 would not come in the way of this Court deciding, in these Writ Petitions, the challenge to the validity of the notification dated 06.12.2018 to the extent Rampur and Padli Gujjar villages were excluded; it was open to the State Election Commission to conduct elections to the Roorkee Municipal Corporation inclusive of these two villages; since the State Government is now conducting the exercise of providing reservation in the Roorkee Municipal Corporation, excluding these two villages, the said exercise is in violation of the interim order passed by this Court in Writ Petition (M/S) No. 3715 of 2018 dated 02.01.2019; the State Government should, in compliance with the order of the Supreme Court dated 02.07.2019 and the interim order passed by this Court dated 02.01.2019, conclude the exercise of delimitation of the entire Roorkee Municipal Corporation including Rampur and Padli Gujjar villages; they are taking advantage of the order of the Supreme Court dated 02.07.2019, and are now conducting the exercise of delimitation of the Roorkee Municipal Corportion excluding these two villages, though the order passed by the Supreme Court on 02.07.2019 did not specifically permit them to do so; and this Court should consider deciding the Writ Petitions early, since the State Government is seeking to take advantage of the order of the Supreme Court dated 02.07.2019, and to hold elections contrary to the interim order dated 02.01.2019 passed in Writ Petition (M/S) No.3715 f 2018 and batch.

In examining the question, whether or not the matter pending before the Supreme Court in SLP (Civil) Diary No. 18595 of 2019, has any bearing on, or connection with, the batch of cases pending before us, it is useful to briefly note the events leading up to the filing of the SLP before the Supreme Court. Writ Petition (M/S) No.3142 of 2018 was filed before this Court seeking a writ of certiorari to quash the notification dated 14.10.2018 issued by the State Government; a writ of mandamus commanding the respondents to issue a fresh notification under Section 7(5) of the Uttarakhand Municipal Corporation Act, 1959 (for short the "1959 Act"), and to include the Municipal Corporation, Roorkee in the allotment and reservation process for allotment of seats of Mayor; and to further direct respondent nos.1 to 3 to conduct the election of Mayor for Nagar Nigam, Roorkee along with the election of other Nagar Nigams of the State of Uttarakhand.

A Division Bench of this Court, in its order in Writ Petition (M/S) No.3142 of 2018 dated 22.10.2018, observed that, in its earlier order in Special Appeal No.538 of 2018 dated 09.10.2018, it had directed the State Election Commission to initiate the process of holding elections of all the Municipal Corporations in the State of Uttarakhand within seven days from the date of passing of the judgment; qua Municipal Corporation, Roorkee, the reservation process was ordered to be completed, as undertaken by the learned Advocate General, on or before 15.10.2018; and immediately, thereafter, to hold elections before expiry of the term; in sequel to these directions, the learned Advocate General, on the basis of instructions, had stated that, as far as elections to the Roorkee Municipal Corporation was concerned, the process was lengthy, and it would take three months; and, accordingly, it was clarified that elections should be concluded on or before 31.12.2018. The Writ Petition was disposed of making it clear that the petitioner had only laid a challenge to the notification, whereby Roorkee was not included in the calendar for holding elections.

Modification Application (MCC No.1644 of 2018) was filed by the State Government requesting this Court to modify the order passed by the Division Bench in Writ Petition (M/S) No.3142 of 2018 dated 22.10.2018, or to extend the time for conducting elections to the Roorkee Municipal Corporation. In the affidavit, filed in support of the said application, it was stated that Writ Petition (M/S) No.2944 of 2017 was filed aggrieved by the notification dated 10.11.2017, by which two villages namely Padli Gujjar and Rampur, which formed part of Piran Kaliyar constituency, were excluded; by order dated 25.05.2018, the High Court had allowed the Writ Petition, and had quashed the notification dated 10.11.2017, holding that, as there was no provision in the Municipal Corporation Act for exclusion of an area, any area, which was already within the municipal area, cannot be excluded; thereafter, a proviso was inserted to Section 3 of the Uttarakhand Municipal Corporation Act, 1959 on 17.10.2018, which conferred power on the Governor, by a subsequent notification under Article 243-Q of the Constitution, to include or exclude any area in or from a transitional area or a smaller urban area referred to in Section 3(2); a notification was issued subsequently on 26.11.2018, which was corrected on 28.11.2018 including and excluding certain urban areas; objections and suggestions were invited from the general public and, thereafter, a final notification dated 06.12.2018 was issued; a tentative notification for ward delimitation was issued on 07.12.2018, and published on 09.12.2018; a rapid OBC survey was conducted for finalization of reservation of wards; and, after completion of said process, a tentative notification, for reservation of the post of Mayor and Ward Members, would be issued within a month to invite objections and suggestions within seven days; thereafter, a final notification for reservation would be issued at the earliest; after completing the work of reservation of the wards and the Mayor, the chart of delimitation of wards as well as reservation would be sent to the State Election Commission for commencement of the election process; some time would be required, thereafter, by the State Election Commission, for preparation of a voters list, and for conducting elections for the Roorkee Municipal Corporation; and for this some time was required.

A Division Bench of this Court had, in its order in MCC No.1644 of 2018 in Writ Petition (M/S) No.3142 of 2018 dated 15.03.2019, noted that Article 243-U(1) of the Constitution of India stipulated that every Municipality should continue for five years from the date appointed for its first meeting, and no longer; Article 243-U(3) required an election, to constitute a Municipality, to be completed before the expiry of its duration specified in clause (1); the term of the subject municipality had expired on 03.05.2018; elections to constitute a municipality should have been held before expiry of the duration specified in clause (1) i.e. before 03.05.2018; and though more than ten months had elapsed thereafter, yet elections to the subject Municipality had not been held. While holding that the time limit, stipulated in Article 243-U of the Constitution, was a constitutional imperative necessitating strict compliance, the Division Bench found no reason to grant extension of the time sought for, since more than ten months had already elapsed from the date on which elections ought to have been held. The Modification Application was, accordingly, dismissed.

It is against this order dated 15.03.2019 passed by the Division Bench of this Court, that the jurisdiction of the Supreme Court was invoked by way of Special Leave Petition (Civil) Diary No.18595 of 2019 wherein the order dated 02.07.2019 was passed. In the said order, the Supreme Court, while holding that conduct of election to install the elected body of the Roorkee Corporation cannot brook any delay, directed the State Government to complete the formalities under Section 32 of the Uttar Pradesh Municipal Corporation Act, 1959 (for short the "1959" Act) regarding reservation, and to report compliance in that behalf before the next date of hearing, whereafter the Election Commission can initiate the process for holding elections forthwith; as that ought to have been done before the expiry of the tenure of the outgoing body i.e. 03.05.2018, if this direction was not complied with for any reason whatsoever, the Chief Secretary of the State of Uttarakhand shall be personally responsible, and may have to appear in-person before the Supreme Court on the next occasion. The Supreme Court made it clear that, no order passed by any other Court, be it the Civil Court or the High Court, within the State of Uttarakhand, shall come in the way of the State to complete the formalities under Section 32 of the Uttar Pradesh Municipal Corporation Act, 1959 within the time specified by the Court; and, in case any stay had already been granted, the same would be deemed to have been superseded in terms of the said order. The matter was directed to be listed on 24.07.2019.

Section 32(1) of the Uttarakhand Municipal Corporation Act, 1959, (the formalities of which the State Government was required to complete in terms of the order of the Supreme Court dated 2.07.2019), requires the State Government, by order (a) to divide a municipal area into wards; (b) to determine the number of wards in which a municipal area should be divided; (c) to determine the extent of each ward; and (d) to determine the number of seats to be reserved for the Scheduled Castes, the Scheduled Tribes, the backward classes or women. As the issue in Special Leave Petition (Civil) Diary No.18595 of 2019 relates only to the holding of timely elections for the Roorkee Municipal Corporation whose five year term had expired on 03.05.2018, this Court is not disabled from examining the validity of the notification dated 06.12.2018, impugned in the batch of Writ Petitions, whereby the two villages of Rampur and Padli Gujjar were excluded from the territorial limits of the Roorkee Municipal Corporation.

Consequently in our order, in Writ Petition (M/S) No.3715 of 2019 dated 19.07.2019, we had observed :-

"Heard both Mr. Ajay Veer Pundir, learned counsel for the petitioner and Mr. M.C. Pande, learned Additional Advocate General for the State of Uttarakhand/ respondent Nos. 1 to 3 on the scope and extent of the clarification petition. The main writ petition has already been finally heard and orders were reserved. However, orders were not pronounced in view of the interim order passed by the Supreme Court on 02.07.2019.

After considering the submissions put forth by Mr. Ajay Veer Pundir, learned counsel for the petitioner and Mr. M.C. Pande, learned Additional Advocate General, including on the subsequent order passed by the Supreme Court on 12.07.2019, we are satisfied that the issues which arise for consideration in this writ petition, regarding exclusion and inclusion of certain villages from the territorial limits of the Roorkee Municipal Corporation by the impugned order falls outside the scope of the Special Leave Petition, in which the order dated 02.07.2019 was passed.

We see no impediment, therefore, in passing a final order in this writ petition.

Order reserved."

We shall, therefore, proceed to examine the issues raised in this batch of Writ Petitions. Writ Petition (PIL) No. 63 of 2019 has been filed in public interest by a resident of Roorkee, who claims to be a social worker. He seeks a writ of mandamus directing the respondents, jointly and severally, to hold elections to local bodies i.e. Nagar Nigam Roorkee, Nagar Palika Bajpur, Nagar Palika Srinagar Garhwal and Nagar Panchayat Selaqui in the State of Uttarakhand immediately. It is his case that, in terms of Article 243 U (3) in Part IXA of the Constitution of India, elections of Municipalities are required to be conducted before expiry of the duration of the Municipality which is of five years; and, since the term of these Municipalities had expired in the year 2018 itself, failure on the part of both the State Government and the State Election Commission, to conduct elections to these Municipalities, is arbitrary and illegal.

Reliance is placed by the petitioner on an earlier Division Bench judgment of this Court in Writ Petition (M/S) No. 3142 of 2018 dated 22.10.2018, wherein the submission of the learned Advocate General, that the process of elections to the Roorkee Municipal Corporation was lengthy and it would take three months, was recorded. Accepting the plea of the learned Advocate General, the Division Bench had directed the State Government and the State Election Commission to complete all formalities, including reservation qua the Roorkee Municipal Corporation, within a period of six weeks from the date of the order; thereafter, to announce the election programme; and to conclude elections on or before 31.12.2018. Writ Petition (PIL) NO. 63 of 2019 has been filed, in public interest, contending that the aforesaid order of the Division Bench has been violated.

We had, in our order dated 31.05.2019, placed on record the submission of the State Election Commission that elections to the Bajpur Nagar Palika would be completed by 15.07.2019. Sri M.C. Pande, learned Additional Advocate General for the State of Uttarakhand, would now submit before us that elections to the Srinagar Garhwal Nagar Palika is also scheduled to be held on 8th July, 2019.

According to the learned Additional Advocate-General, it is only with respect to the Roorkee Nagar Nigam, and the Selaqui Nagar Panchayat, that it is not possible to hold elections, since this Court had, in other writ petitions filed questioning the notifications issued re-constituting the Nagar Nigam Roorkee and upgrading Selaqui Gram Panchayat as a Nagar Panchayat, granted stay of the operation of the said Notifications. Consequently, by order in Writ Petition (PIL) NO. 63 of 2019 dated 30.05.2019, Writ Petition (M/S) Nos. 3715 and 3793 of 2018 and Writ Petition (M/S) No. 121 of 2019, were directed to be listed along with Writ Petition (PIL) No. 63 of 2019.

In so far as Roorkee Municipal Corporation is concerned, a notification was issued on 06.12.2018 excluding two villages i.e. Padli Gujjar and Rampur from its limits, and for inclusion, in part, of Asafnagar Gram Panchayat. Questioning exclusion of these two villages, Writ Petition (M/S) Nos. 3770 and 3870 of 2018 were filed, and Writ Petition (M/S) No. 3793 of 2018 was filed questioning inclusion of Asafnagar village (in part) within the Roorkee Municipal Corporation. Likewise, Writ Petition (M/S) No. 121 of 2019 was filed questioning the final Notification dated 28.12.2018, whereby Selaqui Gram Panchayat (hitherto called the Central Hope Town) was upgraded as a Nagar Panchayat; and, since the Notification impugned in this writ petition has also been stayed, all these writ petitions were listed, along with Writ Petition (PIL) No. 63 of 2019, for hearing. Writ Petition (M/S) No. 3715 of 2018, which also relates to elections to the Roorkee Municipal Corporation, was listed for hearing, along with the aforesaid writ petitions.

In so far as Roorkee Municipal Corporation is concerned, a final Notification was issued on 14.10.2015, whereby the villages of Padli Gujjar and Rampur along with others, totaling to eleven villages, were included within the limits of the Roorkee Municipal Corporation. Subsequently, by Notification dated 26.10.2015, Matlabpur village was also included within the limits of the said Corporation. It is relevant to note, at this stage, the submission urged on behalf of the petitioners both by Sri Jitendra Chaudhary and Sri Ajay Veer Pundir, learned counsel, that Matlabpur village is adjoining Rampur village and can only be approached from Roorkee through Rampur. On the basis of a report of the Additional District Magistrate, which learned counsel for the petitioners claim is because the District Magistrate and the Roorkee Municipal Corporation did not so agree, a final Notification was issued on 10.11.2017 excluding Padli Gujjar and Rampur from the limits of the Roorkee Municipal Corporation.

Questioning the Notification dated 10.11.2017, Writ Petition (M/S) No. 2944 of 2017 was filed. The said writ petition was allowed by order dated 25.05.2018 on the ground that, while Section 3(2) of the Uttar Pradesh Municipal Corporations Act, 1959 (for short the '1959 Act') provided for inclusion of any area within the limits of a city, it did not provide for its exclusion. Consequent thereto, the Uttarakhand State Legislature amended the 1959 Act by adding a proviso to Section 3, the contents of which shall be referred to later in this order. After insertion of the proviso to Section 3 of the 1959 Act, a tentative notification was issued on 26.11.2018 inviting objections both for inclusion and exclusion of certain villages from the limits of the Roorkee Municipal Corporation; and, thereafter, the impugned Notification dated 06.12.2018 was issued.

In so far as Selaqui Nagar Panchayat is concerned, the earlier Gram Panchayat, called the Central Hope Town, consisted of four areas i.e. Bahadurpur, Chamanpur, Haripur and Selaqui. While Selaqui was an industrial area, the other three hamlets were partly agricultural and partly industrial. A tentative Notification was issued on 16.10.2015 to upgrade Selaqui separately as a Nagar Panchayat. A final Notification was issued on 20.11.2015, questioning which the petitioner, in Writ Petition (M/S) No. 121 of 2019, filed Writ Petition (M/S) No. 2960 of 2015. During the pendency of this writ petition, yet another Notification was issued on 14.12.2016 including the other three hamlets i.e. Bahadurpur, Chamanpur and Haripur, along with Selaqui, for upgradation of the erstwhile Central Hope Town (a Gram Panchayat), as the Selaqui Nagar Panchayat.

Writ Petition (M/S) No. 2960 of 2015 was allowed by a Division Bench of this Court, by its order dated 23.02.2015, holding that, under Section 4 of the U.P. Municipalities Act, 1916, a notification was required to be issued and objections were to be called for; thereafter, the objections ought to have been decided on the basis of the factors mentioned in Section 3(1) of the Act; the objections should have been extensively dealt with, and not in haste; and there would be violation of principles of natural justice, if the objections are called, but the same are not decided in accordance with law.

Thereafter, a tentative Notification was issued on 17.03.2018, to which the petitioner filed her objections on 20th March, 2018. A final notification was issued upgrading Selaqui as a Nagar Panchayat, questioning which the petitioner invoked the jurisdiction of this Court by way of Writ Petition (M/S) No. 121 of 2019. We shall deal with the contentions urged by learned counsel for the petitioner and the learned Additional Advocate General, with regards Roorkee Municipal Corporation and the Selaqui Nagar Panchayat, separately.

Sri Jitendra Chaudhary, learned counsel for the petitioners, would submit that the amendment made to Section 3 of the 1959 Act by the Amendment Act of 2018, inserting a proviso thereto, is without authorisation; Section 3 of the Act bears the heading "declaration of a larger urban area"; the power conferred under Section 3 of the Act is only to increase the limits of a Municipality or a Municipal Corporation, and not to decrease it in size, by excluding certain villages from its limits; the proviso inserted thereto, whereby power is conferred for exclusion of certain areas from the limits of a Municipal Corporation, falls foul of sub-sections (1) and (2) of Section 3 of the Act; a proviso can only carve out an exception to the main provision, and cannot render the main Section redundant; while a proviso can be clarificatory in nature, it cannot result in the destruction of the main provision of which it is a proviso; Part IXA of the Constitution of India does not confer any power either on the State Legislature, or on the State Executive, to decrease the area of a Municipal Corporation; Article 243Q(1) does not contain any provision for reduction in the size of a Municipal Corporation as so constituted; Article 243Q(2) stipulates various parameters; except for a reference to the population of the area of the excluded and included villages, none of the other factors, referred to in Article 243Q(2) of the Constitution of India, have been considered by the Government while issuing the impugned notification, much less has it been referred to in the said notification; the law laid down by the Supreme Court, in Champa Lal Vs. State of Rajasthan and others (2018) 16 SCC 356, requires the State Government to issue a notification, under Article 243Q(2) of the Constitution, with respect to the entire State; no such notification, under Article 243Q(2) of the Constitution of India, has been issued by the State Government till date; the impugned notification relates only to Roorkee Municipal Corporation, and not to the entire State; even otherwise, the parameters stipulated, for inclusion or exclusion of an area from the limits of a Municipal Corporation, under Article 243Q(2) have not been considered; the specific averment in the writ affidavit, that inclusion of Rampur would result in lack of contiguity of Roorkee city with Matlabpur village, has also not been denied in the counter affidavit; the petitioners have specifically stated that Rampur falls between Roorkee and Matlabpur, and Matlabpur can be reached from Roorkee only through Rampur; it does not stand to reason that a village, which is not in contiguity with the other parts of the Municipal Corporation, should continue to form part of the Corporation, when a village in-between is excluded; the power to make a law, under Entry 5 of List II of the Seventh Schedule to the Constitution of India, can be exercised only in accordance with the provisions of the Constitution; and, since insertion of the proviso to Section 3 of the Act is contrary to the provisions of Part IXA, more particularly Article 243Q, the said provision must be declared ultra vires and illegal. Learned counsel would rely on S. Sundaram Pillai Vs. V.R. Pattabiraman (1985) 1 SCC 591; Champa Lal (2018) 16 SCC 356; T.P. Dasan Vs. State of Kerala and others 2015 Supreme (Ker) 870; K.P. Raveendran Vs. State of Kerala 2006 1 KLT 427; Bhanwar Lal Mundra and others Vs. State of Rajasthan and others 2015 3 RLW (Raj) 2208).

Sri Jitendera Choudhary, learned couinsel for the petitioners,would also rely on S.R. Bhagwat and others Vs. State of Mysore (1995) 6 SCC 16; and Sobha Projects and Trade (Pvt.) Ltd. Bangalore Vs.Government of Karnataka 2009 6 KarLJ 161 to submit that, while the basis of a judicial verdict can be removed by legislation, no law can be made to over-rule a judgment of the High Court; and the impugned amendment, whereby a proviso was inserted to Section 3 of the Act, is a law made only to over-rule the judgment of this Court in Writ Petition (M/S) No. 2944 of 2017 dated 25.05.2018.

While adopting the submissions put forth on behalf of the petitioners by Sri Jitendra Chaudhary, Sri Ajay Veer Pundir, learned counsel for the petitioners, would further submit that the final notification issued earlier, on 14.10.2015, was in compliance with the parameters stipulated in Article 243Q of the Constitution of India; it is only after the Government was satisfied that the parameters, stipulated in Article 243-Q of the Constitution of India, were satisfied that the villages of Rampur and Padli Gujjar were included in the Roorkee Municipal Corporation; even if the State Government is held to have the power to exclude these villages from the limits of the Roorkee Municipal Corporation, it is only if, and after, they record reasons as to why the parameters, which stood fulfilled when the earlier notification was issued on 14.10.2015, no longer exist, can the exercise of exclusion be undertaken, and not otherwise.

While also adopting the submissions put forth by Mr. Jitendra Chaudhary, learned counsel for the petitioner, Mr. Bhuwan Bhatt, learned counsel for the petitioner in Writ Petition (M/S) No.121 of 2019, would submit that, besides the final notification dated 28.12.2018 falling foul of the requirements of Article 243Q of the Constitution, the said notification is also in violation of the order passed by this Court in Writ Petition (M/S) No.2960 of 2015 dated 23.02.2018; the order of this Court required the respondents to consider the objections put forth by the petitioner in detail and pass an order; and only, thereafter, to issue a final notification; while the impugned notification, no doubt, refers to the order of this Court in Writ Petition (M/S) No.2960 of 2015 dated 23.02.2018, none of the objections raised by the petitioner, in his letter dated 17.03.2018, have even been considered; and since the impugned notification falls foul of the order passed by this Court in Writ Petition (M/S) No.2960 of 2015 dated 23.02.2018, it is liable to be struck down on this ground also.

On the other hand Mr. M.C. Pande, learned Addl. Advocate General appearing for the State of Uttarakhand, would submit that the power to enact laws, with respect to local bodies in Part IX-A of the Constitution, is conferred on the State Legislature under Entry 5 List II of the Seventh Schedule; it is in the exercise of this power that a proviso was added to Section 3 to clarify the main section; while even before the amendment, Section 3, when read in conjunction with Section 21 of the U.P. General Clauses Act, 1904 conferred power to exclude areas by necessary implication, the amendment was necessitated to remove the basis of the judgment of this Court in Writ Petition (M/S) No.2944 of 2014 dated 25.05.2018; unlike in the Municipal Corporation Act, Section 3 of the U.P. Municipalities Act specifically provides for exclusion; Article 243Q of the Constitution does not prescribe any particular form in which a notification should be issued; since the impugned notifications dated 06.12.2018 with respect to Roorkee Municipal Corporation, and the notification dated 28.12.2018 with respect to Selaqui Nagar Panchayat, refer to Article 243Q, the said notifications are in compliance with the requirements of Article 243Q; while several parameters have, no doubt, been prescribed in Article 243Q(2), it would suffice for the Government to refer to the major factors relating to population, and the extent of agricultural land; the contention that exclusion of areas is impermissible, in view of the heading of Section 3, does not merit acceptance; even after exclusion of the two villages of Rampur and Padli Gujar, the Roorkee Municipal Corporation continues to be a Municipal Corporation; there is no change in its status as a larger urban area; consequently, the contention, that the two villages cannot be excluded from its ambit, is not tenable; the burden lies heavily on the petitioners to show that the parameters stipulated in Article 243Q have been violated; the proviso was inserted to Section 3 conferring power on the State Government to exclude certain areas from within the limits of the Municipal Corporation; making of such a law is within the competence of the State Legislature; in view of the insertion of a proviso to Section 3, the State Government has now been conferred the power to exclude areas from the limits of a Municipal Corporation; it is evident from a reading of Article 243Q, that it is unnecessary for the State Government to specify that all the factors, mentioned therein, have been fulfilled; after enumeration of all other factors, Article 243Q uses the words "or such other factors as it may deem fit"; the aforesaid words are separated from the other factors by the word "or"; and it would suffice, therefore, for the Government to consider other factors, and not all the factors specifically enumerated in Article 243Q.

Learned Additional Advocate General would rely on two Division Bench judgments of this Court in Special Appeal No.347 of 2018 and batch dated 22.05.2018, and Narendra Singh Rana vs. State of Uttarkhand & others 2016 (2) U.D. 275 (DB).

It is convenient to examine the elaborate submissions put forth on behalf of the petitioners by Mr. Jitendra Chaudhary, Mr. Ajay Veer Pundir and Mr. Bhuwan Bhatt, and on behalf of the respondent-State Government by Mr. M.C. Pande, learned Additional Advocate General, under different heads.

I. IS A GENERAL NOTIFICATION, APPLICABLE TO ALL URBAN LOCAL BODIES IN THE STATE, REQUIRED TO BE ISSUED UNDER ARTICLE 243Q(2)?

Part IX and IX-A of the Constitution, relating to Panchayats and Municipalities, were inserted by the Constitution (Seventy-third Amendment) Act, 1992 and the Constitution (Seventy-fourth Amendment) Act, 1992. Part IX and IX-A came into force on 24.4.1993 and 1.6.1993 respectively. Part IX-A seeks to strengthen the democratic political governance at the grass root level in urban areas by providing constitutional status to Municipalities, by laying down minimum uniform norms, and by ensuring regular and fair conduct of elections. After Part IX-A came into force, the provisions of the existing laws relating to municipalities which were inconsistent with or contrary to the provisions of Part IX-A ceased to apply. (Bondu Ramaswamy and others vs. Bangalore Development Authority and others (2010) 7 SCC 129). After the advent of the 74th Amendment to the Constitution, the situation has undergone a radical change.

Article 243Q(1) of the Constitution of India provides for the constitution in every State of a Nagar Panchayat for a transitional area (i.e. an area in transition from a rural area to an urban area), of a Municipal Council for a smaller urban area, and a Municipal Corporation for a larger urban area. The constitution of these urban local bodies is required to be made in accordance with the provisions of Part IX-A of the Constitution of India. Article 243Q constitutes three types of municipalities - (a) a Nagar Panchayat, (b) a Municipal Council, and (c) a Municipal Corporation. The proviso to Article 243Q deals with all three types of municipalities constituted under Clause (1). It provides that a municipality under Clause (1) may not be constituted in certain circumstances. This would refer to any of the three types of municipalities. Although the proviso refers to such urban area or part thereof, this "urban" area also covers a transitional area, in transition from rural to urban. It is because this area is also in the process of turning into an urban area that it is put under Part IXA which deals with municipalities in urban areas. (Saij Gram Panchayat vs. State of Gujarat and others (1999) 2 SCC 366).

Article 243Q(2) stipulates that, in this Article (i.e. Article 243Q), "a transitional area", "a smaller urban area" or "a larger urban area" shall 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 Part IXA of the Constitution. The criteria for notifying areas are firmly embedded in Sub-Article (2) of Article 243-Q. The density of the population, the revenue generated for local administration, the percentage of employment in non-agricultural activities, economic importance are all factors, besides any other factors, which the Governor may take into consideration, as the criteria. A large amount of latitude, within the four corners of the aforesaid provision, is made available to the State in determining whether an institution of Self-Government is to be constituted for an area. The word "population" is defined with reference to the last census. Therefore, the point of time at which the authority is to consider the number of persons residing in the area is also fixed as per the Constitution. (Narendra Singh Rana 2016 (2) U.D. 275 (DB)).

Article 243(Q)(2) requires the Governor, having regard to the factors stipulated therein, to specify, for the purposes of Part IXA, what "a transitional area", "a smaller urban area" or "a larger urban area" means. The words "for the purposes of Part IX-A" used in Article 243Q would mean that the prescription of factors is not Municipality or Municipal Corporation specific, but is for the purposes of Part IXA i.e. for all urban local bodies in the State. This specification, for the purposes of Part IXA, is to be made by way of a public notification. No such notification, containing any such prescription for all urban local bodies in the State of Uttarakhand, has been brought to our notice.

In Champa Lal (2018) 16 SCC 356, the Supreme Court held that it appeared, from the scheme of Article 243Q(2), that the Governor was not free to notify 'areas' in his absolute discretion, but was required to fix the parameters necessary to determine whether a particular area was a transitional area or a smaller urban area or a larger urban area with due regard to the factors mentioned in Article 243Q(2); it was implicit that such parameters must be uniform for the entire State; it is only after determination of the parameters, could various municipal bodies, contemplated under Article 243Q(1), be constituted; it appeared that two notifications had been issued in the exercise of the statutory powers conferred on the Rajasthan State Government by two different State enactments; these two notifications could not be treated as notifications contemplated under Article 243(Q)(2); and, in the absence of any notification which meets the requirement of Article 243Q(2), the entire exercise undertaken by the State of Rajasthan was unconstitutional as it was inconsistent with the requirements of Article 243Q of the Constitution of India.

In the light of the law declared by the Supreme Court in Champa Lal (2018) 16 SCC 356, compliance with Article 243Q(2) would require prescription of factors in general, applicable under Part IXA of the Constitution, for all "transitional areas", "smaller urban areas" and "larger urban areas" in the State, and it would not suffice to prescribe factors for only one particular Municipal Corporation or one particular Municipality as a "smaller urban area", or as a "larger urban area".

II. SHOULD THE FACTORS SPECIFIED IN ARTICLE 243Q(2), WHICH MUST BE HAD REGARD TO WHILE ISSUING THE NOTIFICATION, ALSO BE HAD REGARD TO WHEN AMENDING OR VARYING IT?

Even otherwise, Article 243Q(2) obligates the Governor to have due regard to the various factors mentioned therein before specifying the "area" as a Smaller or a Larger Urban Area i.e. the population of the area, the density of the population, the revenue generated in the area for local administration, percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit. (Champa Lal (2018) 16 SCC 356). The expression "have regard to", in Article 243-Q(2), obliges the Government to consider, as relevant data, material to which it must have regard. (Saraswati Industrial Syndicate Ltd. v. Union of India (1974) 2 SCC 630; State of U.P. v. Renusagar Power Co. AIR 1988 SC 1737; Ryots of Garabandho v. Zamindar of Parlakimedi (1945) 47 BOMLR 525). The form of the words "having regard to" no doubt lends itself to the suggestion that regard should be paid only to the matters mentioned. As the said Article does not say "having regard only", and in fact uses the words "or such other factors", it would not be reasonable to consider only the matters mentioned, isolated from other relevant factors. (Shri Sitaram Sugar Co. Ltd. v. Union of India (1990) 3 SCC 223; CIT v. Williamson Diamonds Ltd. (2009) 13 SCC 1; CIT v. Gungadhar Banerjee and Co. (P) Ltd. AIR 1965 SC 1977; Saraswati Industrial Syndicate Ltd. (1974) 2 SCC 630). The said phrase means that the facts, which may be taken note of, are to be 'a guide, and not a fetter'. (Shri Sitaram Sugar Co. Ltd. (1990) 3 SCC 223; State of Karnataka v. Ranganatha Reddy (1977) 4 SCC 471) . The expression "having regard to", in the context in which it is used, would only mean that the government can, after taking into account the matters mentioned therein, consider any other matter which may also be relevant. The expression is not "having regard only to" but "having regard to". These words are not a fetter; they are not words of limitation, but of general guidance. The government must, of course, address itself to the questions to which it must have regard; and, having done so, it is for the government to determine what it is empowered to determine with reference to what it reasonably considers to be relevant for the purpose. (Shri Sitaram Sugar Co. Ltd. (1990) 3 SCC 223; Union of India v. Kamlabhai Harjiwandas Parekh AIR 1968 SC 377).

The words "or such other factors", as used in Article 243Q(2), does not however mean that the Governor can take into consideration irrelevant factors or those which are not even remotely connected with the first five factors specified in Article 243Q(2) of the Constitution of India. While the five specified factors must invariably be considered, the Governor is empowered to take into consideration other factors also in specifying what a "transitional area", "smaller urban area" or "larger urban area" mean. The use of the word "such" before the words "other factors" can only mean that the other factors, which the Governor may deem fit to take into consideration, must not be completely dissimilar to the other five factors, and must have a rational relation thereto.

Article 367 relates to the interpretation of the Constitution and, under clause (1) thereunder, unless the context otherwise requires, the General Clauses Act, 1897 shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. In cases where the Constitutional scheme provides for amendment and variation of the notification issued under a provision of the Constitution, in the manner indicated, exercise of the power to amend or vary any notification, by virtue of Section 21 of the General Clauses Act, must be taken as excluded by clear implication. (State of M.P. v. Ajay Singh (1993) 1 SCC 302). Both Section 21 of the General Clauses Act, and Section 21 of the U.P. General Clauses Act, 1904, embody a rule of construction, and the question whether or not it applies to the provisions of Article 243Q would depend on the subject-matter, context, and its effect. In other words, it would be necessary to examine carefully the scheme of Part IX-A, its object and all its relevant and material provisions before deciding whether, by the application of the rule of construction enunciated by Section 21, the power to amend or vary the notification can be said to vest in the Government by necessary implication. If the context and effect of the relevant provisions is repugnant to the application of the said rule of construction, assistance of the said Section cannot be invoked. (State of Bihar v. D.N. Ganguly 1959 SCR 1191 : AIR 1958 SC 1018). Section 21 of the General Clauses Act can be invoked only if, and to the extent if any, the context and the scheme of the Act so permits. (Ajay Singh (1993) 1 SCC 302; Peela Pothi Naidu v. State of A.P 2005 (4) ALD 687 (DB)).

There is nothing in Article 243Q(2) which would exclude the applicability of Section 21 of the General Clauses Act when interpreting the power granted by that Article. (Sampat Prakash vs. The State of Jammu and Kashmir and Ors. AIR 1970 SC 1118). If, for the interpretation of Article 243Q(2), Section 21 of the General Clauses Act is not applied, the result would be that the notification once made by the Governor would become inflexible, and would forever remain as laid down in the first notification. Accepting the submission of the learned counsel, appearing on behalf of the petitioners, that once a "Larger Urban Area" is constituted, a part of it cannot be denotified, may have drastic consequences for, even if all the factors specified in Article 243Q(2) no longer exist, and the area ceases to retain any of characteristics of a Larger Urban Area, it must, nonetheless, be continued as a Larger Urban Area on the premise that the Government lacks the power to de-notify it. There does not appear to be anything in the scheme of Part-IX-A of the Constitution of India which necessitates taking such a view. Clearly, the power of amending the notification, from time to time, to suit changing situations must be held to exist, and that power can only be found in Article 243Q(2) by applying Section 21 of the General Clauses Act. Since there is nothing in the context of Article 243Q(2) to hold that Section 21 of the General Clauses Act, 1897 is inapplicable, the power conferred on the Governor, under Article 243Q(2) to specify by public notification a "larger urban area", would also include the power to amend or vary any such notification.

The power to amend or vary a notification is incidental to the power to issue a notification and, even in the absence of a provision for amendment or variation in the Constitutional provision, the power to amend or vary the notification is available under Section 21 of the General Clauses Act, 1897 which is similar to Section 21 of the U.P. General Clauses Act, 1904. As power is conferred under Article 243Q(2) for issuance of a notification, it also confers, by necessary implication, the power and jurisdiction to amend or vary the same. (State of A.P. rep., by Secretary to Govt, PR & RD Dept, Hyderabad v. K. Srinivas Rao 2011(1) ALT 315 (DB)).

The General Clauses Act, by virtue of Article 367(1) of the Constitution, applies to the construction of the provisions of the Constitution. (Pradyat Kumar Bose vs. The Hon'ble Chief Justice of Calcutta High Court AIR 1956 SC 285). The provision of the General Clauses Act can be taken into account in interpreting the words used in Article 243Q(2) (Ram Kishore Sen and Ors. vs. Union of India (UOI) and Ors. AIR 1966 SC 644; T.M. Kanniyan vs. Income Tax Officer, Pondicherry and Ors. AIR 1968 SC 637; Sampat Prakash AIR 1970 SC 1118). The General Clauses Act is an aid in interpretation, and is not an independent source of power. It is only for the limited purpose of interpreting Article 243Q(2) of the Constitution can aid be taken of the provisions of the General Clauses Act, 1897. Any submission that Section 21 of the General Clauses Act cannot be held to be applicable for interpretation of the Constitution must, therefore, be rejected. (Sampat Prakash AIR 1970 SC 1118). In view of Section 21 of the General Clauses Act, a notification issued under Article 243Q(2) can be amended or varied only in the like manner i.e. by way of a public notification. (Mahendralal v. State of U.P. AIR 1963 SC 1019).

The phrase "subject to", in Section 21 conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject. (Chandavarkar Sita Ratna Rao v.Ashalata S. Guram (1986) 4 SCC 447; South India Corpn. (P) Ltd. v. Secy., Board of Revenue, Trivandrum (1964) 4 SCR 280). The power to amend or vary a notification can, therefore, be exercised by the Government only on conditions similar to those on the basis of which it is empowered to issue the notification. The power to modify or vary a notification can be conceded to the competent authority, but the said power must inevitably be exercised within the limits prescribed by the provision conferring the said power (Gopi Chand v. Delhi Administration AIR 1959 SC 609). Exercise of power under Article 243Q(2) "in the like manner and subject to the like sanctions and conditions (if any)", mean similar conditions. (Ram Bali v. State of W.B. AIR 1975 SC 623). The power to amend or vary a notification is circumscribed by the requirement of its exercise being subjected to like sanctions and conditions. The Chambers Dictionary (New Edition) defines 'like' to mean identical, equal or nearly equal in any respect, similar, resembling. The word "condition" is defined therein to mean pre-requisite; prior requirement; to restrict, limit; and "sanction" to mean a penalty or reward expressly attached to non-observance or observance of the requirements. Black's Law Dictionary (Sixth Edition) defines the word "sanction" to mean penalty or other mechanism of enforcement used to provide incentives for obedience with the law or with rules and regulations. The word "condition" is defined therein to mean a qualification or restriction. P. Ramanatha Aiyer's the Law Lexicon (reprint edition, 2002) defines "condition" to mean a thing on whose fulfillment another thing or act is made to depend; the nature, quality, qualifications of the order or decision; and "sanction" to mean as that part of a law which inflicts a penalty for its violation or bestows a reward for its observance.

The power to amend or vary, which is included in the power to issue the notification, is exercisable in the "like manner" and "subject to the like sanction and conditions (if any)" as govern the issue of the original notification. This is stated by Section 21 itself. The question before us is whether the amending notification dated 06.12.2018 complies with the like conditions under which the original notification dated 14.10.2015 was issued. (Kamla Prasad Khetan vs. The Union of India (UOI) AIR 1957 SC 676). The Government is, therefore, required to have regard, among others, to the density of the population in the area, the revenue generated for local administration, the percentage of employment in non-agricultural activities, and the economic importance of the area. It is only if these aspects have been considered by it, can the Government exercise its powers under Section 21 of the General Clauses Act to amend or vary the earlier notification.

As the power to constitute a Smaller or Larger Urban Area, under Article 243-Q(2), is required to be exercised by the Governor, having regard to the aforementioned factors prevailing in that area, the discretion to denotify a part of the Larger Urban Area can, in view of Section 21 of the General Clauses Act, 1897, be exercised by the Government only after it satisfies itself, among others, that the aforementioned factors no longer exist in that part of the area. "Discretion" provides an option to the authority concerned to adopt one or the other alternative. A proper and legal exercise of discretion is one where the authority examines the fact, is aware of the law and then decides objectively and rationally what serves the interest better. The action or decision must not only be reached reasonably and intelligibly but it must be related to the purpose for which power is exercised. When a Constitutional provision provides guidance for the exercise of discretion, then the action should be in accordance with it. The extent of discretion, or constraints on its exercise, depends on the provisions under which it is exercised. It must withstand scrutiny of the standard provided by the Constitutional provision itself. The authority exercising discretion must not appear to be impervious to the Constitutional directions. It should be guided by reasonableness and fairness. Parliament never intends its authorities to abuse the law or use it unfairly. (Bangalore Medical Trust v. B.S. Muddappa (1991) 4 SCC 54). It is only after considering the factors, referred to in Article 243-Q(2) of the Constitution of India, can the Government exercise its discretion either to continue or delete a part of the area from a Smaller or Larger Urban Area.

In State of Uttarakhand & others Vs. Gram Sabha Mawakot & others Special Appeal No. 347 of 2018 and batch dated 22.05.2018 a Division Bench of this Court held that when a notification is issued, constituting an area as a transitional area, a smaller urban area and a larger urban area, the various ingredients in Article 243-Q (2) must be borne in mind; it is not as if there are no consequences; the power to notify, under Article 243-Q (2), must be done with the greatest care and application of mind to the various factors, which are indicated therein; and no extraneous matter or irrelevant matter should govern the exercise of power under Article 243-Q(2) of the Constitution. In T.P. Dasan vs. State of Kerala 2015 (0) Supreme (Kerala) 60, the Kerala High Court held that there was no finding as to the density of population, income generated, percentage of employment in non-agricultural activities or the economic importance; and it cannot be said that due regard was given to all relevant factors.

It is only if the impugned notification dated 06.12.2018 has taken into account the factors enumerated under Article 243Q(2), while deleting Rampur and Padli Gujjar from the limits of the Roorkee Municipal Corporation, can it then be said to be a valid exercise of the power conferred under the proviso to Section 3 of the 1959 Act read with Article 243Q(2) of the Constitution of India. The impugned notification dated 06.12.2018 contains two lists. List-I are the villages which have been included in Roorkee Municipal Corporation. List-II contains particulars of those villages which have been excluded from the limits of the Roorkee Municipal Corporation. The factors, as recorded in the said notification dated 06.12.2018, are population and the area. The notification dated 06.12.2018 records that, while the population of Asafnagar (a village which has been included) is 3,612, its area is 328 hectares. List II records the population of the excluded villages of Rampur as 12,527, and of Padli Gujjar as 12,603. The area of these excluded villages, as shown in the notification dated 06.12.2018, is 263.617 hectares for Rampur and 240.324 hectares for Padli Gujjar. Except for the population, and the area of the respective villages, there is no mention, in the impugned notification, of any other factor having been taken into consideration.

In the counter affidavit filed by the District Magistrate, Haridwar dated 28.02.2019, it is stated that, in his report dated 27.09.2017, the Joint Magistrate, Roorkee had stated that, as per Fasli Year 1424, the agricultural area of Village Padli Gujjar was 173 hectares and the agricultural area of Village Rampur was 122 hectares; most of the population was engaged in agricultural activities and occupation; day to day activities and geographical conditions of both the villages were rural in nature; by inclusion of the said villages, the agricultural area may decrease; and, therefore, the Committee constituted by him had recommended exclusion of the said two villages from the territorial area of the Roorkee Municipal Corporation. Enclosed with the counter affidavit is the report dated 27.09.2017 of the Joint Magistrate, Roorkee.

On a conjoint reading of the impugned Notification dated 6.12.2018, the counter affidavit, and the report of the Joint Magistrate dated 27.09.2017, it is evident that the factors taken into consideration were the population and the total area of the villages; the agricultural area of the villages; that the population of the village was engaged in agricultural activities; and that the geographical condition of the villages was rural in nature. None of the other factors specified in Article 243-Q, including the density of the population of the village, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance of the village, have been taken into consideration, by the State Government, while issuing the impugned Notification dated 6.12.2018.

In this context, it is relevant to also note the submission, urged on behalf of the petitioners, that the irrationality of the exercise undertaken by the State Government, in having Matlabpur within the limits of the Roorkee Municipal Corporation, and in excluding Rampur from its limits, is evident from the fact that, as a result thereof, Matlabpur, which is not even contiguous with Roorkee Municipal Corporation, nonetheless forms part of its territorial limits. According to the learned counsel, the only manner in which one can reach Matlabpur from Roorkee is by passing through Rampur village; and the impugned notification has resulted in the said village continuing to form part of Roorkee Municipal Corporation, though it is no longer contiguous thereto, and is separated by one of the excluded villages i.e. Rampur.

The material on record does not disclose any exercise having been undertaken by the Government to examine whether the aforementioned factors have so deteriorated as to warrant exclusion of the Rampur and Padli Gujjar areas from the Roorkee Municipal Corporation. As no such exercise has been undertaken by the Government, and it did not have regard to all the factors specified in Article 243Q(2), while exercising discretion to amend the earlier notification constituting the Roorkee Municipal Corporation to include Rampur and Padli Gujjar areas, the impugned notification is liable to be set aside. This Court may not be understood to have held that the Government is not entitled to exclude an area from a Larger Urban Area at all. All that we have held is that the Government should have regard to the factors specified in Article 243Q(2), and should exercise its discretion to vary the notification, and thereby exclude certain areas, only after it has examined and taken these factors into consideration.

III. CHALLENGE TO THE CONSTITUTIONAL VALIDITY OF THE PROVISO TO SECTION 3 OF THE UTTARAKHAND MUNICIPAL CORPORATION ACT, 1959:

As noted hereinabove, the validity of the proviso to Section 3 is subjected to challenge on two grounds, firstly that the proviso under Section 3(1) is, in effect, an exercise of the judicial power of the State to set at naught the earlier judgment of this Court in Writ Petition (M/S) No. 2944 of 2017 dated 25.05.2018; and, secondly, the proviso is ultra vires not only of Section 3 of the 1959 Act itself, but also of Article 243-Q of the Constitution of India.

In examining the first contention, it is necessary to refer to the contents of the judgment of this Court in Writ Petition (M/S) No. 2944 of 2017 dated 25.05.2018. In the said order, a learned Single Judge had examined the earlier Notification dated 10.11.2017, whereby Padli Gujjar and Rampur, which were situated within District Haridwar, were excluded from the territorial limits of the Roorkee Municipal Corporation. On a reading of Section 3 of the Uttarakhand Municipal Corporation Act 1959, the learned Single Judge opined that there was no provision therein for exclusion of an area; and therefore the area, which was earlier included or which earlier formed a part of the Municipal Corporation, could not be excluded. On this short ground, the impugned Notification dated 10.11.2017 was quashed. It is to remove the basis of this judgment, was a proviso inserted to Section 3 of the 1959 Act.

It is no doubt true that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which, in substance, over-rules such a judgment. It is not in the realm of a legislative enactment to displace the basis or the foundation of the judgment. (S.R.Bhagat (1995) 6 SCC 16). The legislature can change the basis on which a decision is given by the Court, and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter-parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State, and as functioning as an Appellate Court. (Cauvery Water Disputes Tribunal 1993 Supp (1) SCC 96; and S.R. Bhagat (1995) 6 SCC 16). A legislature has no legislative power to render ineffective the earlier judicial decision by making a law which simply declares the earlier judicial decision as invalid and not binding, for such powers, if exercised, would not be legislative power exercised by it, but judicial power exercised by it encroaching upon the judicial power of the State. (G.C. Kanungo v. State of Orissa AIR 1995 SC 1655; S.R. Bhagat (1995) 6 SCC 16).

While the State Legislature lacks the power to overrule a judicial verdict, it does not lack jurisdiction to amend the law to remove the basis of the judgment passed by the Court. By Notification dated 17.10.2018, and in the exercise of the powers conferred by Article 348 of the Constitution of India, the Governor directed publication of 'the Uttarakhand (Uttar Pradesh Nagar Nigam Act, 1959) (Amendment) Act, 2018, by which the Uttarakhand (Uttar Pradesh Nagar Nigam Act, 1959) was amended. The amendment, to the extent relevant, reads as under:

"In Section 3 of the Uttarakhand (Uttar Pradesh Nagar Nigam Act, 1959) (Adaptation and Modification Order, 2002), in sub-section (1), the following proviso shall be inserted, namely-

"Provided that the Governor may, by subsequent notification under Clause (2) of Article 243- Q of the Constitution, include or exclude any area in or from any larger urban area referred to in this sub-section."

While the heading of Section 3 i.e. "Declaration of urban area" continues to remain, power is now conferred, by the newly inserted proviso, to include or exclude any area in it or from any larger urban area referred to in Sections 3(1) and (2) of the Act. Since the proviso now seeks to remove the basis of the earlier judgment in Writ Petition (M/S) No. 2944 of 2017 dated 25.05.2018 wherein it was held that the State Government lacked competence to exclude any area since there was no provision for exclusion of an "area" in Section 3(1), we find it difficult to accept the submission, urged on behalf of the petitioners, that Uttarakhand Act No. 32 of 2018, whereby a proviso was inserted to Section 3, is an exercise of judicial power, and seeks to overrule the judgment of this Court in Writ Petition (M/S) No. 2944 of 2017 dated 25.05.2018. We are satisfied that, by the said amendment, the basis of the earlier judgment of this Court in Writ Petition (M/S) No. 2944 of 2017 dated 25.05.2018 has been sought to be removed, and nothing more.

With regards the second contention based on the ultra-vires doctrine, it must be borne in mind that Section 3 of the Uttarakhand Municipal Corporation Act, 1959 relates to "Declaration of a larger urban area". The submission is that, while power under Section 3 can be exercised to declare a smaller urban area as a larger urban area, or to declare a Panchayat as a smaller or a larger urban area, the reverse is not permissible, and a larger urban area cannot be converted into a smaller urban area, or travel beyond Part -IX-A of the Constitution to become a Gram Panchayat under Part IX of the Constitution. We must express our inability to accept the submission that the proviso inserted to Section 3 must be struck down as ultra vires Section 3 of the 1959 Act itself. The only ground, on which plenary legislation can be struck down, is for lack of legislative competence or for violation of any of the provisions of the Constitution. A proviso must be construed in harmony with the main Section, and cannot be struck down as ultra vires the Section itself.

Section 3 of the 1959 Act relates to declaration of a larger urban area and, under clause (1) thereunder, 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 larger urban area, shall be known as a City, by such name as he may specify. Section 3(2) stipulates that 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, order and directions issued or made in this order or any other enactment in force, a city.

This Court had, in its order in Writ Petition (M/S) No. 2944 of 2017 dated 25.05.2018, held that the power conferred on the State Government, under Section 3, was only to include villages, and they lacked the power of exclusion. The Uttarakhand State Legislature, therefore, amended Section 3 by inserting a proviso thereto. It is necessary to understand the scope of this proviso inserted below Section 3 of the 1959 Act. A proviso may serve four different purposes (1) qualifying or excepting certain provisions from the main enactment; (2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable; (3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision. (S.Sundaram Pillai (1985) 1 SCC 591).

A qualifying or an excepting proviso only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (The Commissioner of Income-tax, Mysore Travanecore-Cochin and Coorg, Bangalore v. The Indo Mercantile Bank Ltd. AIR 1959 SC 713; Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax (1955) 2 SCR 483). Such a proviso is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. (Local Government Board v. South Stoneham Union 1909 AC 57 = 78 LJKB 124; S. Sundaram Pillai (1985) 1 SCC 591).

The effect of an excepting or a qualifying proviso is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which, but for the proviso, would be within it. Such a proviso cannot be construed as enlarging the scope of an enactment when it can, fairly and properly, be construed without attributing to it that effect. (Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha AIR 1961 SC 1596; Rhondda Urban District Council v. Taff Vale Railway Co. 1909 AC 253; Kedarnath Jute Mfg. Co. Ltd. v. CTO AIR 1966 SC 12; Craies on Statute Law, 5th Edn., pp. 201-202).

The natural presumption is that, but for the proviso, the enacting part of the Section would have included the subject-matter of the proviso. (Bhojraj Kuverji Oil Mills and Ginning Factory AIR 1961 SC 1596; Mullins v. Treasurer of Surrey (1880) 5 QB 170; S. Sundaram Pillai (1985) 1 SCC 591; Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai AIR 1966 SC 459; Madras and Southern Mahrata Railway Co. Ltd. v. Bezwada Municipality AIR 1944 PC 71; The Indo Mercantile Bank Ltd. AIR 1959 SC 713; Craies : Statute Law (7th Edn.). Such a proviso is added to a principal clause primarily with the object of taking out of the scope of that principal clause what is included in it, and what the legislature desires should be excluded. (STO, Circle-I, Jabalpur v. Hanuman Prasad AIR 1967 SC 565; S. Sundaram Pillai (1985) 1 SCC 591).

Provisos are often added not as exceptions or qualifications to the main enactment, but as saving clauses, in which case they will not be construed as controlled by the Section. (Bhojraj Kuverji Oil Mills and Ginning Factory AIR 1961 SC 1596; S. Sundaram Pillai (1985) 1 SCC 591). A proviso may also be embedded in the main provision by which it becomes an integral part of it so as to amount to a substantive provision (S.Sundaram Pillai (1985) 1 SCC 591) and, in exceptional cases, a proviso may be a substantive provision itself. (Commissioner of Commercial Taxes v. R.S. Jhaver AIR 1968 SC 59; Odgers in Construction of Deeds and Statutes (5th Edn.); Hiralal Rattanlal v. State of U.P. (1973) 1 SCC 216; State of Rajasthan v. Leela Jain AIR 1965 SC 1296; S. Sundaram Pillai (1985) 1 SCC 591). Sometimes, despite the fact that a provision is called a proviso, it is really a separate provision and the so-called proviso may have substantially altered the main section, (Hiralal Rattanlal (1973) 1 SCC 216; CIT v. Bipinchandra Maganlal & Co. Ltd., Bombay AIR 1961 SC 1040), adding to and not merely excepting something out of or qualifying what goes before it. (U.P. State Road Transport Corpn. v. Mohd.Ismail (1991) 3 SCC 239; Rhondda Urban District Council 1909 AC 253; Jennings v. Kelly 1940 AC 206; S. Sundaram Pillai (1985) 1 SCC 591).

Where the proviso is directly repugnant to a Section, the proviso shall stand and be held to be a repeal of the Section as the proviso speaks the latter intention of the makers. Where the Section is doubtful, a proviso may be used as a guide to its interpretation: but, when it is clear, a proviso cannot imply the existence of words of which there is no trace in the Section. The proviso is subordinate to the main Section. A proviso does not enlarge an enactment except for compelling reasons. Sometimes an unnecessary proviso is inserted by way of abundant caution. A proviso may sometimes contain a substantive provision. (Sarathi in Interpretation of Statutes; S. Sundaram Pillai (1985) 1 SCC 591).

There is no rule that the proviso must always be restricted to the ambit of the main enactment. (Dattatraya Govind Mahajan v.State of Maharashtra (1977) 2 SCC 548; Ishverlal Thakorelal Almaula AIR 1966 SC 459). The words of a proviso are not to be taken "absolutely in their strict literal sense," but a proviso is "of necessity" limited in its operation to the ambit of the Section which it qualifies and, so far as that Section itself is concerned, the proviso again receives a restricted construction. (Maxwell on Interpretation of Statutes, 12th Edn.,;M.M. Jeevan v. State of Kerala Judgment in Writ Appeal No.2041 of 2015 dated 14.10.2015). Ordinarily, it is foreign to the proper function of a proviso to read it as providing something by way of an addendum i.e., by way of addition to the main provision or dealing with a subject which is foreign to the main provision. (J.K. Industries Ltd. v. Chief Inspector of Factories and Boilers and others (1996) 6 SCC 665; Indo Mercantile Bank Ltd. AIR 1959 SC 713)

As noted hereinabove, the heading of Section 3 of the 1959 Act itself relates to declaration of a Larger Urban Area and Section 3(2) provides only for inclusion of other areas into such an urban area, and not for its exclusion. It is for the first time, by Uttarakhand Act No. 32 of 2018 and by insertion of the proviso, that the power of exclusion of an area, from the limits of the Municipal Corporation, has been conferred. The proviso, in the present case, is not a qualifying or an excepting proviso to the main provision. It is a substantive provision itself and, consequently, the proviso must be read as now providing also for the exclusion of an area from a Smaller to a Larger Urban Area. This contention urged on behalf of the petitioners, regarding the proviso to Section 3 of the Act being contrary to Section 3 itself, therefore necessitates rejection.

Article 245(1) of the Constitution of India confers power on the State Legislature to make laws for the whole or any part of the State. Use of the words "subject to the provisions of this Constitution" in Article 245(1) makes the law making power of the State Legislature subject to the other provisions of the Constitution, which, in the present case, would be Article 243-Q. Article 246(3) of the Constitution confers exclusive power on the State Legislature to make laws for the State with respect to any of the matters enumerated in List II of the Seventh Schedule, i.e. the State list. The power of the State Legislature under Clause (3) of Article 246 is made subject to Clauses (1) and (2) thereof. Entry-5 of List II of the Seventh Schedule confers power on the State Legislature to make laws for local governments, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. Insertion of the proviso to Section 3 of the 1959 Act does not suffer from lack of legislative competence, since the source of power of the State Legislature to make such a law can be traced to Entry -5 of List II of the Seventh Schedule.

Since the power conferred on the State Legislature, under Section 245(1) of the Constitution, is subject to the provisions of the Constitution, exercise of such a power to make a law cannot contravene any of the other provisions of the Constitution. The contention, urged in these Writ Petitions, is that, since the proviso to Section 3 of the 1959 Act violates Part-IX-A, the said proviso is liable to be struck down as ultra vires the Constitution. The submission, in short, is that Article 243-Q in Part-IX-A of the Constitution provides only for the constitution of municipalities and, while a Panchayat can be constituted as a transitional area or a smaller urban area or a larger urban area, Article 243-Q of the Constitution does not permit the converse i.e. conversion of a larger urban area, or a part thereof, into a smaller urban area or a Panchayat. According to the learned counsel, appearing on behalf of the petitioners, the consequence, of the impugned Notification dated 06.12.2018 being issued, is that Rampur and Padli Gujjar villages have now ceased to remain part thereof and, as a result, their earlier status as a Gram Panchayat revives, and such a course of action is impermissible under Part-IXA, more particularly Article 243-Q of the Constitution.

Since reliance is placed on behalf of the petitioners on the judgments of the Kerala and the Rajasthan High Courts in this regard, it is useful to take note of the law declared therein. In K.P.Raveendran 2006 1 KLT 427, the Kerala High Court held that the constitutional context emanating out of Article 243Q conceives and envisages only the transition of a rural area to an urban area, be it as a smaller urban area or as a larger urban area; it does not contemplate, or provide to the contrary, for the transition of an urban area into a rural area; there is no provision either in Part IX or IXA for the transition of an urban area to a rural area; there cannot be a transition of the constitutionally created smaller urban area, larger urban area and a transitional area, to be a village, to fall into Part IX of the Constitution; such an exercise cannot be done under Part IXA of the Constitution; this is because the Municipality, in relation to a transitional area or a smaller urban area, or a larger urban area, on its coming into existence, becomes a constitutional institution and cannot be abolished, by an act of the Legislature, without specific authorisation in that regard in the Constitution; all that could be done, if a situation demands, is to exclude any particular urban area from a Municipality to be made part of another Municipality or merger of municipalities or creation of a new municipality, either by the area being excluded or by merging such excluded areas; however, there cannot be a transition of an urban area as a rural area; such provisions would be contrary to the constitutional provisions in Part IXA; it is wholly impermissible in the constitutional context, in which Part IX and Part IXA have been separately provided, to govern two types of local self-government institutions; this is a context to the contrary, which excludes the application of Section 21 of the General Clauses Act and, therefore, even in terms of Article 367, the said rule of interpretation does not apply to the situation in hand; unless the power to re-transit an area, which has become a smaller urban area or a larger urban area, to be a rural area is expressly provided for in the Constitution, it will result in conceding a power to re-transit an area from the operation of Part IXA to Part IX of the Constitution; had it ever been the intention of Parliament to provide for such a re-transit, a crucial process, there is no reason why such specific provision does not find place in the Constitution itself; the very absence of such a provision leads to the conclusion that such re-transit is impermissible; the application of the provisions of Section 21 of the General Clauses Act was repugnant to the context and the situation governed by Article 243Q(2); in such situations, recourse to the General Clauses Act is not available; a rural area, after its transition to an urban area, thereby becoming a "smaller urban area" or a "larger urban area" in terms of Article 243Q of the Constitution of India, cannot be converted as a rural area; no such exercise can be done under the provisions of Part IXA of the Constitution of India or otherwise; and "de-linking" of certain urban areas from the municipalities, for being treated as rural areas, is unconstitutional and void.

In T.P. Dasan 2015 (0) Supreme (Kerala) 60, a learned Judge of the Kerala High Court, following the earlier judgment in K.P. Raveendran 2006 1 KLT 427, held that a Municipality in relation to a transitional area or a smaller urban area or a larger urban area on its coming into existence becomes a constitutional institution, and cannot be abolished by an Act of the legislature without specific authorisation in this regard in the Constitution; what is conceived or envisaged by Article 243Q is only a transition of a rural area to an urban area, be it as a smaller urban area or as a larger urban area; and it does not contemplate a reverse process.

In Bhanwar Lal Mundra 2015 3 RLW (Raj) 2208), the Rajasthan High Court held that the transition from a rural area to an urban area is a gradual process on the path of development; the Seventy-fourth Amendment of the Constitution of India recognized this path of progress of the rural areas in India and has added Part- IX-A by the Constitution (Seventy-fourth Amendment) Act, 1992; there is nothing in Part-IX which provides for Panchayats, and Part IX-A which provides for Municipalities, in which a step in the forward direction and the progress made by the members of a community living in villages marching on the road to progress qualify, under Article 243Q(2) of the Constitution of India, to be declared a transitional area, and which gradually develops into a smaller urban area and, thereafter, a larger urban area, can be stopped and be allowed to move backwards; and there is no provision in the Constitution of India, by which a Municipality can be reconstituted by way of a reverse and retrograde process into a Gram Panchayat.

While it is no doubt true that the aforesaid judgments do lay down that it is impermissible for a larger urban area, or a part thereof, to be reconstituted as a Gram Panchayat, we must bear in mind that this Court would not examine the constitutional validity of plenary legislation unless it is absolutely necessary for it to do so. As the challenge to the validity of the notification dated 06.12.2018 is being upheld on other grounds, and the said notification is being struck down, it is unnecessary for this Court to examine the constitutional validity of the proviso to Section 3 of the 1959 Act. Suffice it to leave this question of law open for examination, if need be, in subsequent legal proceedings.

IV. WPMS No. 121 of 2019

In so far as Selaqui Nagar Panchayat is concerned, the petitioner had earlier filed Writ Petition (M/S) No. 2960 of 2015 questioning the notification dated 25.11.2015. By Notification dated 14.12.2016, the boundaries of the Selaqui Nagar Panchayat were extended. In his order in Writ Petition (M/S) No. 2960 of 2015 dated 23.02.2018, a learned Single Judge of this Court quashed the said notification on the ground that the objections had not been decided in a just and fair way; they had been rejected in a cursory manner without due application of mind; under Section 4 of the Act of 1916, a notification was required to be issued, and objections were required to be called; thereafter, the objections ought to be decided on the basis of the factors mentioned in sub-section (1) of Section 3 of the Act; the objections should be dealt with extensively, and not in haste; and there was violation of principles of natural justice, if the objections were called but were not decided in accordance with law. The Writ Petition was allowed and the impugned notification dated 24.11.2015, constituting the Selaqui Nagar Panchayat, was quashed.

The State Government, thereafter, issued the notification dated 17.03.2018 calling for objections. The petitioner filed her objections on 23.03.2018 contending that creation of the Selaqui Nagar Panchayat was against the interests of the general public, and was contrary to law. Thereafter, notification dated 23.03.2018 was issued by the respondents informing the public at large that objections would be heard, and suggestions considered, on 27.03.2018. Aggrieved thereby, the petitioner filed Writ Petition (M/S) No. 796 of 2018, which was disposed of by order dated 20.11.2018 directing the petitioner's objections to be heard, for a fresh notification to be issued, and instead of the Executive Officer of the Nagar Panchayat, the Government was given liberty to nominate any other officer of the same rank to hear the objections.

Thereafter, the impugned notification dated 28.12.2018 was issued by the State Government converting Central Hopetown Village Panchayat into Selaqui Nagar Panchayat, questioning which the present writ petition is filed. The primary grounds of challenge are that, despite the specific direction of this Court in Writ Petition (S/S) No. 2960 of 2015 dated 23.02.2018 directing the respondent authorities to consider and pass a detailed order on the petitioner's objections, no such order was passed thereupon; and it is evident, from a bare reading of the impugned notification dated 28.12.2018, that all the factors stipulated in Clause (2) of Article 243-Q of the Constitution were not taken into consideration by the authorities while constituting the Selaqui Nagar Panchayat.

A plain reading of the impugned notification dated 28.12.2018 would show that the factors which have been taken into consideration are the estimated area of the Selaqui Nagar Panchayat, its Khasra Numbers, and its population as per the 2011 Census. Other factors such as the density of population, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance of the village, have not been taken into consideration in issuing the said notification. Further no general notification as required in terms of Article 243-Q (1) and (2), and as declared by the Supreme Court in Champa Lal (2018) 16 SCC 356, has been issued. Consequently, on grounds similar to those on which the notification dated 06.12.2018, relating to Roorkee Municipal Corporation, has been set aside, the impugned notification dated 28.12.2018, relating to Selaqui Nagar Panchayat, must also be, and is accordingly, set aside.

V. WPPIL No. 63 OF 2019

As a result of the notification dated 06.12.2018 relating to Roorkee Municipal Corporation, and the notification dated 28.12.2018 relating to Selaqui Nagar Panchayat, being quashed by this order, elections to both these local bodies shall be held in terms of Article 243U(3)(a), and Article 243E(3)(a) of the Constitution of India, forthwith. While elections to Central Hope Town Village Panchayat shall be held within two months from the date of production of a certified copy of this order, we refrain from fixing any time-frame for holding elections to the Roorkee Municipal Corporation, since the matter is ceased of by the Supreme Court in SLP No. (Diary) No. 18595 of 2019.

VI. CONCLUSION :

For the reasons afore-stated Writ Petitions (M/S) Nos. 3715, 3770, 3793, 3870 of 2018 and 121 of 2019 are allowed, and the impugned notification dated 06.12.2018 reconstituting the Roorkee Municipal Corporation, and the notification dated 28.12.2018 constituting the Selaqui Nagar Panchayat, are quashed. However, in the circumstances, without costs. Consequently in view of Article 243U(3)(a) in Part IXA, and Article 243E(3)(a) in Part-IX of the Constitution of India, elections to the Central Hope Town Village Panchayat shall be held within two months from the date of production of a certified copy of this order. Elections to the Roorkee Municipal Corporation shall also be held at the earliest. Writ Petition (PIL) No. 63 of 2019 is disposed of accordingly. No costs.