FURKAN AHMAD AND ANOTHER vs STATE OF UTTARAKHAND AND OTHERS

Sudhanshu Dhulia, J

Petitioner No.1 is a Member of Uttarakhand Legislative Assembly, elected from Piran Kaliyar constituency, while petitioner no. 2 is the resident of

village Padli Gujjar, Roorkee, District Haridwar. The petitioners are aggrieved by the notification dated 10.11.2017, by which two villages, namely,

Padli Gujjar and Rampur, which form part of Piran Kaliyar constituency and are situated within the limits of District Haridwar, have been excluded

from the territorial limits of Municipal Corporation, Roorkee.Â

The case of the petitioners is that earlier Roorkee had a local body which was a Nagar Palika Parishad and it was upgraded to Nagar Nigam i.e.

Municipal Corporation on 02.03.2013. Later on, vide notification dated 14.10.2015, the aforesaid two villages i.e. Padli Gujjar and Rampur, were

included in the territorial limits of Municipal Corporation, Roorkee. Now vide impugned notification dated 10.11.2017, these two villages have been

excluded from the area of Municipal Corporation, Roorkee.Â

A pure legal question which has been argued by the learned counsel for the petitioners before this Court is that under the Uttar Pradesh Municipal

Corporations Act, 1959 there is no provision for an area to be excluded from the limits of a Municipal Corporation. The only provision is of inclusion

which is given in Section 3 (2) of the said Act. Therefore, since there is no statutory provision of exclusion, the notification dated 10.11.2017 is totally

without jurisdiction and in violation of law.

Section 3 of the Uttar Pradesh Municipal Corporations Act, 1959 reads as under:-

 “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 a 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.â€​       (Emphasis provided)

In this matter, the State has filed its counter affidavit and while justifying the exclusion, the State has relied upon the Uttar Pradesh Municipalities

Act, 1916 where there is a provision under Section 3(2) of the Uttar Pradesh Municipalities Act, 1916 for inclusion as well as exclusion of an area

from the urban area. Section 3(2) of the Uttar Pradesh Municipalities Act, 1916 reads as under:-

“Section 3. Declaration etc. of transitional area and smaller urban area.-Â

(1)….

 (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.â€​        (Emphasis provided)

6. All the same, the Uttar Pradesh Municipalities Act, 1916 is not applicable to a Municipal Corporation and since for a Corporation, there is no

provision for exclusion of an area, therefore, an area earlier included or earlier a part of the Municipal Corporation cannot be excluded. Reliance on a

provision of the Uttar Pradesh Municipalities Act, 1916 is totally misconceived. Consequently the writ petition succeeds. The notification dated

10.11.2017 is hereby quashed and set aside.