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Judgment
This writ petition has been filed with the prayers for issuance of:
(i) a writ, order or direction in the nature of certiorari for quashment of the impugned notification dated 01.07.2010 (Annexure No. 1 to the writ petition) issued by the State Government;
(ii) a writ, order or direction in the nature of mandamus commanding the opposite parties to restore the districts, Sultanpur and Rae Bareli, to their original boundaries as they existed prior to issuance of notification dated 01.07.2010, and
(iii) any other writ, order or direction of general nature which this Court may deem fit and proper in the facts and circumstances of this case.
Petitioners have also averred in the writ petition that they are directly affected by the creation of new district and that on the subject matter impugned herein no other writ petition has been filed either before this Court or any other Court.
It appears from Annexure No. 1 herein, the notification dated 01.07.2010 issued by the State Government, that the earlier notification dated 13.11.2003 whereby the district ''Chhatrapti Shahuji Maharaj Nagar'' (for short ''CSMN'') had been abolished has been rescinded and that district has been restored. The notification dated 01.07.2010 on reproduction reads as:
In exercise of powers conferred by Section 11 of the U.P. Land Revenues Act, 1901 (U.P. Act No. III of 1901) read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904), the Governor is pleased to rescind with effect from the date of publication of this notification in the Gazette, the Government notification No. 3122/1-5-2003-181-2002-Rev.-5, dated November 13, 2003 regarding abolition of the district Chhatrapati Shahuji Maharaj Nagar and to direct that the said district of Chhatrapati Shahuji Maharaj Nagar shall be restored with its headquarters at Gauriganj comprising the areas of the revenue villages included in Schedule-I and Schedule-II of the Government Notification No. CM-17/1-5-2003-181-2002-Rev-5, dated May 21, 2003.
The Governor is further pleased to direct that nothing in this notification shall affect any legal proceedings already commenced or pending in any court of law which has hitherto exercised jurisdiction in respect of the said areas.
The earlier notification dated 21.05.2003 creating the said district ''CSMN'' reads as:
In exercise of powers u/s 11 of the U.P. Land Revenue Act, 1901 (U.P. Act No. III of 1901) read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904), the Governor, in partial modification of earlier notifications issued in this behalf, is pleased to create with effect from the date of publication of this notification in the Gazette, a new district by the name of Chhatrapati Shahuji Maharaj Nagar with its headquarters at Gauriganj comprising the areas of the revenue villages mentioned in Schedule-I and Schedule-II and to alter with effect from the said date the limits of the existing districts of Rae Bareli and Sultanpur so as to comprise the existing areas except those included in the newly created district of Chhatrapati Shahuji Maharaj Nagar mentioned in Schedule-I and Schedule-II respectively.
The Governor is further pleased to direct that nothing in this notification shall affect any legal proceedings already commenced or pending in any court of law which has hitherto exercised jurisdiction in respect of said areas.
Schedule-I
Revenue villages of district Rae Bareli included in Assembly Constituencies of
(1) Tiloi, and
(2) Salon.
Schedule-II
Revenue villages of district Sultanpur in Assembly Constituencies of
(1) Amethi,
(2) Gauriganj, and
(3) Jagdishpur.
The petitioners seem to be aggrieved from the restoration of district ''CSMN'' on the grounds that after its abolition, it has been re-established and restored in complete violation of the notification dated 22.12.2009 (Annexure No. 4 herein) issued under Rule 6 of the Census Rules 1990, framed under the Census Act, 1948, which has imposed a ban on the change of boundaries of Districts, Nagar Palikas, Tehsils, Police Stations etc. between 01.01.2010 to 31.03.2011. According to the petitioners, this notification has not been rescinded, modified or withdrawn, yet the impugned notification restoring the abolished district ''CSMN'' has been issued by altering the boundaries of two districts namely Rae Bareli and Sultanpur. It is also pleaded in the writ petition that the creation of this district earlier vide notification dated 21.05.2003 was challenged before this Court in Writ Petition No. 5027 (MB) of 2003 Nagarjun Prasad Gupta v. U.P. Sarkar and Ors. and a Coordinate Bench of this Court vide interim order dated 09.10.2009 was pleased to stay the operation of notification dated 21.05.2003 in view of the law laid down and directions given in the judgment passed by the Allahabad Bench of this Court in CMWP No. 39756 of 1998 Ram Milan Shukla and Ors. v. State of U.P. and Ors. However, the Court gave liberty to State Government to carve out the said district, on fulfilling the requirements as contained in the judgment of Ram Milan Shukla''s case. The interim order is reproduced herein below:
Writ Petition No. 5027 (MB) of 2003
Nagarjun Prasad Gupta
v.
Uttar Pradesh Sarkar and Ors.
Hon''ble Pradeep Kant, J.
Hon''ble M.A. Khan, J.
Notice on behalf of opposite parties has been accepted by the learned Chief Standing Counsel, who prays for and is granted three weeks time to file counter affidavit. One week thereafter is granted to the petitioner to file rejoinder affidavit.
List this matter in the first week of November, 03 for hearing.
In the meantime, in view of the law laid down in the judgment passed in CM. Writ Petition No. 39756 of 1998 Ram Milan Shukla and Anr. v. State of U.P. and Ors. by a Division Bench of this Court, we stay the operation of the notification dated 21.05.2003 and give liberty to the State Government that in case it intends to carve out district Chhatrapati Shahuji Maharaj Nagar, it may proceed in terms of the directions issued in the Division Bench judgment. List after four weeks.
It is also averred in the writ petition that in Ram Milan Shukla''s case (supra), this High Court has made it clear that till the infrastructure facilities are arranged and worked out, the decision to create a new district cannot and ought not be implemented and the notification u/s 11 of the U.P. Land Revenue Act should not be issued. Besides, the Government must also disclose the compelling administrative, political and economic compulsion for taking such a decision.
That apart, an appropriation Bill under Article 204 or a Bill for supplementary or additional expenditure under Article 205 or a vote on account under Article 206 of the Constitution must be introduced by way of a suitable legislation and passed, as Section 11 of the U.P. Land Revenue Act cannot be read in isolation, and it has to be read along with the relevant constitutional provisions. As the creation of a new district involves a heavy expenditure, thus, the aforesaid constitutional provisions must be adhered to in that regard.
It is also mentioned in the writ petition that a SLP filed against this judgment was dismissed by the Hon''ble Supreme Court.
We have heard Learned Counsel for parties and perused the records.
During the course of hearing, Learned Counsel for petitioners reiterated the averments made in the writ petition and thus submitted that the issuance of impugned notification amounts to violation of the notification dated 22.12.2009 issued under Rule 6 of the Census Rules 1990. It is also his contention that if a new district is to be created, the requirements as contained in the judgment of Ram Milan Shukla''s case (supra) have to be complied with. Learned Counsel also submitted that as the petitioners have since also made a representation before the State Government, this Court may direct the authority to consider their representation within a time frame on merit.
On the other hand, learned Advocate General and Chief Standing appearing for the State pointed out that against the notification restoring the abolished district, a writ petition with No. 6077(MB) of 2003 Uma Shankar Pandey v. State of U.P. and Ors. was filed in this Court wherein a Co-ordinate Bench passed the following order:
The grievance of the writ petitioner is that in spite of creation of the district, namely, Chhatrapati Shahuji Maharaj Nagar, all the effects were not given due to an interim order and thereafter the notification was withdrawn though other nine districts and Tehsils are created, therefore, the matter requires little consideration by the State Government and we wanted to get the submissions from the Advocate General.
According to us, powers to create, alter and abolish divisions, districts, tahsil and sub-divisions are lying with the State Government u/s 11 of the Uttar Pradesh Land Revenue Act, 1901.
Though such creation was made by the subsequent notification, but according to the petitioner he cannot be thrown out from his right to get an appropriate consideration by the State. Hence in disposing of the writ petition, we direct the writ petitioner to make a representation to the authority concerned within a period of one week from obtaining a certified copy of this order and if it is made, the authority concerned will consider the same upon giving the fullest opportunity of hearing and by passing a reasoned order thereon within a period of three months from the date of making such application. For the purpose of effective adjudication, a copy of the writ petition along with its annexures, affidavits and relevant judgments can also be treated as part and parcel of the representation for due consideration.
The petition is disposed of accordingly, however, without imposing any cost.
Thus, pursuant to the aforesaid order, on a careful scrutiny of the materials on record and hearing the interested parties, the abolished district ''CSMN'' has been reestablished and restored with the same headquaters by the impugned notification....
Learned Advocate General and learned Chief Standing Counsel also submitted that the requirements as contained in Para 14 of Ram Milan Shukla''s case (supra) have already been fulfilled, and further the notification issued u/s 11 of the U.P. Land Revenue Act read with the provisions of U.P. General Clauses Act can not be lightly gone into as it is in the nature of an statutory instrument. It is also pointed out on behalf of State that a supplementary demand for 2010-11 under Article 205 of the Constitution of India in respect of the newly created district ''CSMN'' has been introduced and passed in the current monsoon session whereby necessary budgetary provisions have been made for various heads as required to run the district administration. It is also a submission on behalf of the State that as many as 59 officers including the District Collector, and Superintendent of Police have already been posted and they have assumed the charges in the month of July, 2010 itself.
Thus, the impugned notification does not suffer from any infirmity, whatsoever, which may call for the interference by this Court.
It is also a contention on behalf of the State that there are many development projects introduced by the Central Government (like MGNREGA etc.) as well as by the State Government to eradicate poverty and generate employment etc. in rural area which may not be successfully and effectively implemented for achieving the objects of such projects, in the absence of Local Administration being able to deliver the results due to distance of places and density of population.
On a careful consideration of rival submissions, we do not find any merit in the contentions of Learned Counsel for petitioners inter-alia also for the reason that pursuant to the order passed in earlier writ petition No. 6077(MB) of 2003 Uma Shankar Pandey (supra), the parties to writ petition and other similarly interested persons were heard and only then the erstwhile District ''CSMN'' has been restored. Thus, once the chapter stood closed, it would not be open for the natives of areas falling within the territorial jurisdiction of said district to rake it up again and again by way of filing writ petitions.
Moreover, the requirements as contained in directions of Ram Milan Shukla''s case (supra) are also said to have been complied with by introducing a supplementary demand under Article 205 of the Constitution which is said to have been passed, and thus, the requisite budgetary provisions have also been made. Besides, 59 officers who are required to run the district administration have also been posted and they have since assumed charges, in the month of July itself. Thus, it may not serve the ends of justice and the larger public interest to set the clock back. The directions as contained in Para 14 of the judgment in Ram Milan Shukla''s case (supra) read as below:
In our opinion, before any notification u/s 11 of the U.P. Land Revenue Act is issued an appropriation bill under Article 204 of the Constitution or a bill for supplementary or additional expenditure under Article 205 or a vote on account under Article 206 must be introduced in the legislature and passed. This is necessary because Section 11 cannot be read in isolation but it must be read along with the Constitutional provisions. After all, creation of a new district involves heavy expenditure, and for this the Constitutional provisions must be followed. These constitutional provisions relating to financial matters have been made to ensure strict fiscal discipline and accountability. In our opinion, a district cannot be created by a simple executive fiat at the whims and fancies of a particular individual or individuals. As already observed above, creation of a new district has serious administrative and financial implications and it is an exercise which has an impact on the future also.
Article 204(3) of the Constitution states; "Subject to the provisions of the Article 205 and 206, no money shall be withdrawn from the Consolidated Fund of the State except under appropriation made by law passed in accordance with the provisions of this Article.
It need hardly be told that State of U.P. is a thickly populated State and the districts like Raebareli and Sultanpur are comparatively closer to capital city Lucknow and one of the biggest cities like Allahabad, therefore, to carry out the development works in this area and to effectively implement the various schemes and projects of the Central Government and the State Government in order to introduce welfare measures so that the benefits directly reach the people living below the poverty line, and to establish industries and educational institutions, the creation of a new district may be imperative and the need of hour. Moreover, it is only an act of restoration of the district to its original status of 2003 by the impugned notification.
As pointed out in the submission on behalf of the State, we may notice that the labour budget providing for district Rae Bareli is Rs. 178.43 crores, for Sultanpur Rs. 100.91 crores, and for the newly created district ''CSMN'' Rs. 159.66 crores under the MNREGA scheme. We may also notice that the newly created ''CSMN'' district has 722 gram -panchayats and 16 blocks, created out of 6 blocks taken out from Rae Bareli and 10 blocks taken out from Sultanpur.
As regards the legal submission regarding the effect of notification issued under Rule 6 of the Census Rules, 1990 framed under the Census Act, 1948, a Division Bench of this Court headed by Hon''ble Chief Justice Shri Tarun Chatterjee (as his Lordship then was) in the judgment reported in 2004 (22) LCD 1002 Rakesh Kumar Sharma, Advocate and v. State of U.P. and Anr. while addressing the issue in question has held in paras 67, 68, 69 and 75 of the judgment as under:
Reliance was placed by the Learned Counsel for the writ petitions on Baldev Singh and Others Vs. State of Himachal Pradesh and Others, It is true that in the said case the Supreme Court after considering the scheme of Himanchal Pradesh Municipal Act, 1968 held that the power is administrative power of the State, which requires giving of an opportunity to the affected aggrieved party. Strong reliance has also been placed by the Learned Counsel for the writ petitioners upon B.N. Shankarappa Vs. Uthanur Srinivas and others, . In that decision, the Supreme Court was considering the power of the Deputy Commissioner u/s 4 of Karnatak Zila Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983. In the statutory provisions itself, the power to modify the order was given to the Deputy Commissioner. The previous publication of proposal by notification was also given under the statutory scheme itself. Therefore, this decision of the Supreme Court cannot be said to have laid down any proposition regarding classification of administrative or legislative function. Therefore, we are not in a position to hold that the exercise of power u/s 11 of the Act, 1901 is administrative in nature.
As noted hereinearlier and applying the test as laid down by the Apex Court in State of Punjab''s case (supra) it is clear that the notification issued by the State Government u/s 11 of the Act is a legislative instrument of general rule of conduct and the power exercised does not concern with the interest of an individual and it relates to public in general. In this connection, Section 4(42-B) of the U.P. General Clauses Act, 1904, which defines statutory instrument must be looked into. Section 4(42-B) of the General Clauses Act, 1904 runs as under:
4(42-B). ''statutory instrument'' shall mean any notification, order, scheme, rule or bye-law issued under any enactment and having the force of law.
It cannot be disputed that the power exercised by the State Government is admittedly the power exercised under the Act, 1901 and the order passed u/s 11 of the Act has the force of law. It can also not be disputed that the notification issued by the State Government u/s 11 of the Act falls within the definition of statutory instrument as defined in Section 4(42-B) of U.P. General Clauses Act, 1904. The learned Additional Advocate General submitted that the State Government while creating, altering or abolishing districts had issued notifications, which were published in the official gazette.
For the reasons aforesaid, we are of the firm opinion that the power of the State Government in issuing the notifications u/s 11 of the Act is legislative, in character, must be accepted. Therefore, we hold that the State Government while issuing a notification u/s 11 of the Act exercises power which is legislative in nature and it is not purely an executive or administrative power of the State Government.
Thus, the power of State Government in issuing notification u/s 11 of the U.P. Land Revenue Act is not administrative in nature and the notification issued by the Government thereunder is a legislative instrument of general rule of conduct and further the power of State Government in issuing such notification is legislative in character. Thus, the notification issued under Rule 6 of the Census Rules, 1990 cannot have an overriding effect on the impugned notification whereby the district ''CSMN'' has been restored.
Besides, in a judgment reported in Jagdish Singh Vs. Madhuri Devi, a three judge bench of Hon''ble the Apex Court has also considered the ratio of Ram Milan Shukla''s case as under:
Cabinet''s decision was taken nearly eight years back and appears to be operative. That being so there is no scope for directing reconsideration as was done in Ram Milan''s case, though Learned Counsel for the respondents prayed that such a direction should be given. As rightly contended by Learned Counsel for the State, in matters of policy-decisions, the scope of interference is extremely limited. The policy decision must be left to the Government as it alone can decide which policy should be adopted after considering all relevant aspects from different angles. In matter of policy-decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown, Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government. (emphasis supplied)
Thus, in view of the aforesaid, this writ petition, being devoid of merits, is hereby dismissed.