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Judgment
K.M. JOSEPH, C.J
Since these petitions raise common questions, we are disposing of the same by the following common judgment. We treat Writ Petition (PIL) 14
of 2018 as the leading case. Â
The first petitioner therein alleges that he is the convener of Gao Bachao Andolan, which is a people’s organization and a nonpolitical body
representing the interest of all the 16 villages, which are affected by the notification, which is challenged in the writ petition. The notification is one,
which is issued under Section 3(2) of the Uttar Pradesh Municipalities Act, 1916 (hereinafter referred to as the ‘Act’). By the notification,
which is impugned, the areas, which are mentioned therein, have been included as part of the Municipal Council, Badahat, District Uttarkashi. Â
Petitioner nos. 2 to 9 claim to be the elected Pradhans of different Village Panchayats. The tenth petitioner is a person attached with the
‘Green Chipko Satyagrah Andolan’, which works for saving water, land, forest and environment, besides working for education, cleanliness and
against the liquor. The eleventh petitioner is the Sarpanch of the Van Panchayat, Village Tiloth. They call in question the notification, as we have
noticed, which is dated 23.11.2017. The other Writ Petitions, wherein Mr. Siddhartha Singh, learned counsel appears, are filed by the elected
Pradhans of some among the 16 villages. A counter affidavit was filed in Writ Petition (PIL) No. 14 of 2018.  We must, at the outset, notice that
when the counter affidavit was filed, though we asked whether rejoinder affidavit is necessary, Mr. Siddhartha Sah, learned counsel for the petitioners
mentioned that the case can be argued without the rejoinder affidavit, and hence we proceeded to hear the matter without giving time to file rejoinder
affidavit. Â
Mr. Siddhartha Sah, learned counsel for the petitioners addresses the following arguments before us:
 He would submit that more than 90 per cent persons are engaged in agricultural activities and they derive their income, therefore, from agricultural
operations. He would further submit that the population of the villages in question is low so much so that a relevant factor in Article 243-Q(2) of the
Constitution of India, to which we will make advertence, has not been borne in mind. He would also submit that, in fact, even forest areas have
been included in the urban areas. He would complain that there is non-application of mind to the relevant elements in Article 243-Q(2) of the
Constitution of India. Â
We even allowed the first petitioner, who was present in person, to make submissions. He would submit that the villages in question have their
own culture and that would be impaired by the impugned notification. He poses a question as to what is the difficulty of the Government in
developing the Panchayats as the Panchayats. It is submitted also that there is no consideration of the objections, as nothing is reflected with
reference to the requirement under Article 243-Q(2) of the Constitution of India. Â
Mr. Siddhartha Singh, learned counsel for the petitioners in all the other cases would also complain of non-application of mind to the aspects
relevant under Article 243-Q(2) of the Constitution of India.
Mr. Pradeep Joshi, learned Standing Counsel appearing for the State of Uttarakhand, on the other hand, would submit that the relevant aspects
have been considered. He would submit that actually the villages in question are located on the side of the national highway. There are
considerable non-agricultural activities; activities relating to tourism, which have gained prominence. This is besides, apparently, seeking to draw
support from the stand taken in the counter affidavit that the condition of the villages will improve with it becoming a part of the urban area in
question. Â
The Constitution, by the 73rd amendment, purports to countenance the principle of devolution of powers by way of decentralization in keeping with
the principles of democracy. Vast powers now stand devolved on the local bodies. Powers and responsibilities stand devolved on the local bodies
along with the availability of large funds. It is in this regard that we must notice the provisions contained in Article 243-P of the Constitution of
India. Article 243-P of the Constitution of India, which falls in Part IX-A of the Constitution defines ‘Municipality’ as an institution of
selfgovernment constituted under Article 243-Q. Article 243-Q of the Constitution of India, in turn, reads as follows:
243-Q. Constitution of Municipalities.â€"(1) There shall be constituted in every State,â€"Â
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;Â
(b) a Municipal Council for a smaller urban area; andÂ
(c) a Municipal Corporation for a larger urban area,
in accordance with the provisions of this Part:
 Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the
size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors
as he may deem fit, by public notification, specify to be an industrial township.Â
(2) In this article, “a transitional areaâ€, “a smaller urban area†or “a larger urban area†means such area as the Governor may, having
regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of
employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the
purposes of this Part.â€
Next, we must notice Section 3 of the Act. Section 3 of the Act reads as follows:
 3. Declaration etc. of transitional area and smaller urban area. (1) Any area specified by the Governor in a notification under clause (2) of Article
243-Q of the Constitution with such limits as are specified therein to be a transitional area or a smaller urban area, as the case may be.
(2) The Governor may, by a subsequent notification under clause (2) of Article 243-Q of the Constitution, include or exclude any area in or from a
transitional area or a smaller urban area referred to in sub-section (1), as the case may be.
(3) The notifications referred to in sub-sections (1) and (2) shall be subject to the condition of the notification being issued after the previous
publication required by Section 4 and notwithstanding anything in this section, no area which is, or is part of, a cantonment shall be declared to be a
transitional area or a smaller urban area or be included therein under this section.â€
It is obvious that it is in keeping with the amendment to the Constitution that Section 3 of the Act has been substituted by U.P. Act No. 12 of
1994. It is, therefore, also necessary to notice Section 4 of the Act. The same reads as follows:
 “4. Preliminary procedure to issue notification.â€"(1) Before the issue of a notification referred to in Section 3, the Governor shall publish in the
Official Gazette and in a paper approved by it for purposes of publication of public notices, published in the district or, if there is no such paper in the
district, in the division in which the local area covered by the notification is situate and cause to be affixed at the office of the District Magistrate and
at one or more conspicuous places within or adjacent to the local area concerned a draft in Hindi or the proposed notification along with a notice
stating that the draft will be taken into consideration on the expiry of the period as may be stated in the notice.
 (2) The Governor shall, before issuing the notification consider any objection or suggestion in writing which it receives from any person, in respect
of the draft within the period stated.â€
In this case, there is no dispute that a notification was issued under Section 4 of the Act. There is also no dispute that objections were called
for. Equally, it cannot be in the region of dispute that a notification has been issued under Section 3(2) of the Act. It is this notification, issued
under Section 3(2) of the Act, which is the subject matter of the controversy and is challenged before us. It is next relevant to notice the order
issued by the Government dated 26.09.2012. The said order, it may be noticed, going by the stand taken in the counter affidavit, has been
considered by the authorities. It is the case of the State that it is the order, which is issued in keeping with the requirement under Article 243-Q(2)
of the Constitution of India. We may notice that in the Government Order dated 26.09.2012, certain parameters have been laid, which are to be
followed for the expansion of areas. In the first place, it is stated that in the area, which is to be included, 75 per cent or more than 75 per cent
population must derive their income from vocation other than agriculture. As far as density of population is concerned, it is specified that in the plain
areas, it should not be less than 250 persons per square kilometer; in the hill areas, the density of population should not been less than 150 persons per
square kilometer; the area, which is included, must be in a position to generate revenue. The next is the economic importance of the area and finally
the potentiality for urban development. It is in the light of the statutory provisions, as aforesaid and the Government Order that we must appreciate
the arguments in this case.
Coming to population and density of population, we will take both these aspects together. For inclusion in the urban area, going by the
Government Order, the requirement is that in the hill area, with which we are concerned, the total number of persons should be at least 150 persons
per square kilometer. We will examine whether this requirement is satisfied. In the writ petition, the pleading in regard to population is as follows:
 “The population density of current existing municipal area is far much (3 times) than these 16 village Panchayats. These 16 village Panchayats /
rural areas having total area of approximately 1110 hectare (or about 12 Km²) having total approximate village population of 21,000 people as is
clear from government records.â€
It is, therefore, clear that all the 16 villages put together, the extent is comprised of about 12 square kilometer and the total population is 21,000
persons. 1 square kilometer is nearly 248 acres. In other words, requirement regarding density of population would be satisfied if there are 150
persons per square kilometer, which translates into nearly 247 acres. Quite clearly and there can be no dispute about it that the requirement as of
density of population stands satisfied. Â
Next, we may consider the aspect relating to the percentage of population deriving their income from non-agricultural activities. In this regard,
we may notice the following allegations in the writ petition itself:
That, the affected villages here have already given their lands to this nation in many Government developmental projects. Hundreds of naali land
was acquired in Maneri Bhali (I) and (II) hydro power projects and Tiloth Power house, Government housing colonies and offices, Polytechnic and
other colleges, playing stadium, roads, Police colony and many other Government structures.â€Â  Â
In writ petitions, where Mr. Siddharth Singh, learned counsel appears, though counter affidavits were apparently sought to be served on the
learned counsel today, it appears that the learned counsel refused to accept it, but the cases were proceeded with and he did not even seek time to file
rejoinder affidavits and argued the matter on merits. There is material on record, which goes to clearly show that the authorities have found that
more than 75 per cent persons are deriving income from non-agricultural operations. There is also another aspect, which we must bear in mind.Â
Article 243-Q of the Constitution of India and the Government Order also proceeds to enumerate five specific aspects, which are relevant. The
same are as follows:
(i) Population of the area;
(ii) Density of the population;
(iii) Percentage of persons deriving income from nonagricultural activities;Â
(iv) Economic importance and;
(v) The revenue generated for local administration.
Essentially, these aspects have also been reflected in the Government Order. It is to be noticed that Article 243-Q(2) of the Constitution of India
has enumerated these aspects, as relevant for constituting a transitional area, a small urban area and a large urban area. In other words, the same
yardsticks are seemingly reflected in Article 243-Q(2) of the Constitution of India as relevant for the purpose of constituting a Nagar Panchayat. It
is also seen declared as relevant in respect of constituting an area as part of a small urban area. Finally, it is the same criteria, which is seen reflected
as relevant for constituting a large urban area, namely, the Municipal Corporation. The significance to be attached to the criteria would, in our
opinion, vary from case to case and no individual element would be clinching or exclusively determinative of the decision to be rendered in the
matter. Obviously, the density of population is the criteria, which must vary from State to State and even within the State from area to area, as
density of population would be satisfied as per the Government Order in the plain area if there are 250 persons, whereas in the hill area, it is reduced
to 150 persons. The Government Order is not challenged before us. Therefore, we would think that there is some free play, which is to be
allowed to the Government in these matters. While it is true that they cannot be oblivious to or ignore these elements, which are embedded in
Article 243-Q(2) of the Constitution of India and also in the Government Order, when it comes to judicial review of the same, it is apposite that we
cannot do merit review. Â
We must, at this juncture, also notice an argument raised by Mr. Siddhartha Sah, learned counsel for the petitioners that the notification betrays
non-application of mind to the relevant aspects. In this regard, it is most important to notice that the notification does not reveal that the entire area
of the former Panchayats have been included in the Nagar Panchayats. It is the certain areas of the Panchayats, which have been included in the
urban area, which are denoted by their respective survey numbers. Secondly, we must notice that, apparently, on the basis of objections and on the
consideration of the same, some areas have been excluded. Mr. Siddhartha Sah, learned counsel for the petitioners would argue that there is
nonapplication of mind because the objections have been dealt with only on the ground that there is opposition to the same and, therefore, some of the
areas have not been included, but this is no way to deal with the objections. Â
We may also notice that this is not a case where there is any challenge to the preliminary notification as such. The reason which is stated is that
prima facie satisfaction of the authorities before they issued the preliminary notification is a matter, which we are not called upon to adjudicate
upon. Equally, we may notice that the preliminary notification itself was, apparently, based on the Government Order dated 26.09.2012. When
official acts are called in question, it may not be inapposite for a Court to call in play the presumption that official acts are done in accordance with law
unless and until there is material placed before us that a particular act is not so done. So, we must presume that before this preliminary notification
was issued, there was inquiry done and only those areas were included, which were in conformity with the requirement under Article 243-Q(2) of the
Constitution of India and also the Government Order dated 26.09.2012. Still further, undoubtedly, objections were called. We have noticed some
of the objections. In some of the objections, what is pointed out is that there is unemployment in the Panchayat areas. It is stated that it is a
predominantly agricultural area and there is forest. It is one of the submissions that being agriculturists, carrying on agricultural vocation, they will be
deprived of many benefits, which are made available to the agriculturists on it becoming a part of the urban area. It is pointed out that they would
stand deprived of the benefits under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (hereinafter referred to as the
‘MNREGA Act’). As far as the authority, which is to consider the objections under Section 4 of the Act, is concerned, it is only to consider the
objections, which are relevant; he is only duty bound to do so. As far as the objections, which are relevant, as we have already noticed, regarding
the density of population is concerned, the requirement is clearly and beyond dispute fulfilled. As far as deriving of income from nonagricultural
activities is concerned, also there appears to be a finding that more than 75 per cent derive income from the non-agricultural activities. These are
findings of fact. Unless they are called in question as being perverse or not being supported by any material, we would not be empowered to
interfere. In this regard, we may notice that no rejoinder affidavit was so sought to be filed and the petitioners were ready to go on with the case
today.Â
Coming to the forest areas, we notice that in Serial No. 11 and Serial No. 16, there is indeed reference to two areas, which are denoted as forest
areas. No doubt, it is the case of the respondents that consequent upon the inclusion of these areas in urban areas, there would be overall
development. There are number of schemes, which are applicable to the urban areas. The State Government would be forthcoming with benefits
and this will enure to the benefit of the urban areas as well as other areas. But, a question may arise, having regard to the Forest Conservation Act,
1980 that whether any nonforest activity can be carried out in an urban area, the answer would only be an emphatic ‘No’, and it is clear that a
non-forest activity can be carried out only with the previous permission of the Central Government. But the answer to the question does not end
there. As of now, there are Van Panchayat areas, which are controlled by the Panchayats. Even in such areas, no non-forest activities can be
carried out without permission from the Government. In fact, Mr. Pradeep Joshi, learned Standing Counsel would point out that there are various
instances of the areas, which are denoted as falling within the urban areas though they are forest areas. Example of Nainital itself is pointed out.Â
They do concede that no non-forest activities can be carried out in respect of forest areas even if they are included in the urban areas. But here,
we must notice another aspect. It would appear that we cannot lose sight of the aspect relating to contiguity. The areas, which are included, may
be areas which have some level of contiguity with the existing urban areas. In fact, Mr. Rajeev Singh Bisht, learned Brief Holder for the State
would point out that the areas, which are covered by the forest areas may be encircled by other areas, which are included in the urban areas.Â
Therefore, we would think that if the other requirement, particularly, relating to population is satisfied, having regard to the laudable object, which is
sought to be achieved, we may not be justified in interfering even with reference to the inclusion of the forest areas in the smaller urban areas.
Another argument, which is required to be noticed, which is addressed emphatically by the first petitioner himself with our permission, is that the
age old culture of the Panchayats will be adversely affected by the impugned notification. In the first place, we must notice that the culture is
neither an aspect, which is declared relevant in Article 243-Q(2) of the Constitution of India nor is it considered germane in the Government Order
dated 26.09.2012. India is a country, which is governed by a written Constitution. The cherished ideals which the founding fathers have declared
as paramount are located in the preamble of the Constitution. The preamble declares that India is to be a sovereign, secular and socialist State.Â
While the promulgation of the Constitution is not meant to belittle or do away with the glorious past, which India has, anything which is not in keeping
with the ethos of the Constitution may slip into insignificance. Therefore, when the Constituent Body, by amending the Constitution, has provided for
a progressive step by way of devolution of powers to the local bodies and provided for urbanization in a structured way, the Government would be in
the best position, by way of a value judgment, in deciding as to what areas should be included in the urban areas. If India is to march towards its
final goal as a modern nation, which is informed by the constitutional principles of equality, fairness, welfare of all its citizens, economic prosperity
accompanied by ensuring dignity to each individual, urbanization, where justified, would strengthen the hands of the State in reaching various benefits
to its citizens. In this regard, we take notice of the following stand in the counter affidavit of the State : Â
“9. That contents of paras 10 and 11 of the writ petition are wrong and are denied. It is wrong to state that the notification is without any basis
or material. It is stated that District Magistrate, Uttarkashi at the time of deciding the objections took into considerations various parameters as laid
down in G.O. dated 26.09.2012, which includes the parameters laid down in the Article 243-Q of the Constitution of India and accordingly
recommended the area to be included in the transitional area Nagar Palika Parishad, Badahat. Thereafter, with view for the overall development of
the area, the smaller urban area was included in transitional area of Nagar Palika Parishad, Badahat, It is submitted that the inclusion of the areas of
the said villages in the transitional area will help overall development of the area and will enhance employment, sanitation and other developments
which will be beneficial to the public at large. After inclusion of the said areas in the transitional area, various State and Central Government
policies will help to add better facilities to the public at large. Contrary and hypothetical contentions are denied.â€
Therefore, the petitioners may not be justified in saying that the culture of the villages would be affected adversely by inclusion of these areas in
the urban areas.  We also do not see how the culture of the people living in the Panchayat areas would be adversely affected by the mere
inclusion in the urban area.
Then, there remains an argument, which is addressed on behalf of the petitioners, namely, that persons living in the Panchayat areas would be
deprived of their benefits under the MNREGA Act. It is in this context relevant to notice the provisions of MNREGA Act. Section 3 of the
MNREGA Act reads as follows :
 “3. Guarantee of rural employment to households. â€" (1) Save as otherwise provided, the State Government shall, in such rural area in the State
as may be notified by the Central Government, provide to every household whose adult members volunteer to do unskilled manual work not less than
one hundred days of such work in a financial year in accordance with the Scheme made under this Act.Â
(2) Every person who has done the work given to him under the Scheme shall be entitled to receive wages at the wage rate for each day of work.Â
(3) Save as otherwise provided in this Act, the disbursement of daily wages shall be made on a weekly basis or in any case not later than a fortnight
after the date on which such work was done.Â
(4) The Central Government or the State Government may, within the limits of its economic capacity and development, make provisions for securing
work to every adult member of a household under a Scheme for any period beyond the period guaranteed under sub-section (1), as may be
expedient.â€
Section 2(o) of the MNREGA Act defines “rural areaâ€. The same reads as follows:
“2. Definitions.â€" In this Act, unless the context otherwise requires, â€" Â
(o) “rural area†means any area in a State except those areas covered by any urban local body or a Cantonment Board established or
constituted under any law for the time being in force;â€
It is, no doubt, true that Mr. Siddhartha Sah, learned counsel for the petitioners draws our attention to the Schedule and it, undoubtedly, reveals that
Uttarkashi is one of the areas, which is notified. Therefore, it is urged that the persons, who are entitled to the benefits of the MNREGA Act would
stand deprived of the same, on the villages ceasing to be rural areas and their being covered under the urban local body. It is, undoubtedly, true,
going by the provisions of Section 3 read with 2(o) of the MNREGA Act that the persons, who were formerly engaged as the workers under the
MNREGA scheme, may cease to get the benefit in respect of work done in those areas. It is true that some of the persons may lose the benefits by
way of deprivation from benefits under the MNREGA Act, but we cannot treat this as an aspect which will overwhelm the combination of aspects,
which are relevant for the purposes of notifying an area. We must remind ourselves of the principle that the welfare of the largest number must be
the supreme consideration; individual interest must sub-serve the interest of the general public. If the interest of the majority of the people requires
that it be notified as an urban area, the fact that some persons may lose the benefits, vouchsafed for them under the MNREGA scheme, may not be
sufficient to deprive the power with State to notify an area. We have noticed the stand of the State that with the inclusion in the urban area, the
State would be forthcoming with various benefits for the development of the urban areas, with reference to various schemes. Â
The next argument raised by Mr. Siddhartha Sah, learned counsel for the petitioners is that there will be a violation of Article 243-E of the
Constitution of India. Article 243-E reads as follows :
“243-E. Duration of Panchayats etc. â€" (1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue
for five years from the date appointed for its first meeting and no longer.Â
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning
immediately before such amendment, till the expiration of its duration specified in clause (1).Â
(3) An election to constitute a Panchayat shall be completed â€
(a) before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date of its dissolution:
Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be
necessary to hold any election under this clause for constituting the Panchayat for such period.Â
(4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period
for which the dissolved Panchayat would have continued under clause (1) had it not been so dissolved.â€
We may straightway notice Section 6 of the Uttarakhand Panchayat Raj Act, 2016. Section 6 of the same reads as follows :-
“6. Effect of change in population or inclusion of the area of Panchayat in any level of Nagar Panchayat â€" If the whole of the area, of a Gram
Panchayat is included in a Nagar Panchayat, the Gram Panchayat shall cease and its assets and liabilities shall be disposed of in the manner
prescribed. If a part of such area is so included, its jurisdiction shall be reduced by that part.Â
Therefore, Article 243-E of the Constitution of India only declares that the duration of Panchayats shall unless sooner dissolved under any law for the
time being in force, continue for a period of five years. The law, as contained in the Uttarakhand Panchayat Raj Act, 2016 provides for the ceasing
of the Panchayat upon it being included in the urban area. Therefore, the said argument is only to be repelled, which we do.Â
The argument of Mr. Siddhartha Sah, learned counsel for the petitioners that persons would be deprived of certain traditional, customary and
ancestral rights. We are not impressed by the said argument for the reason that if the conditions relevant for issuing a notification under Section 3(2)
of the Act are there, particularly, having regard to the fact that the purport of the law is to reach better benefits to the people through the process of
urbanization, we do not see how it can be a ground to invalidate a notification, which is otherwise validly issued. This aspect, we may also notice, is
not one, which is contemplated under Article 243-Q(2) of the Constitution of India.Â
Mr. Siddhartha Sah, learned counsel for the petitioners, in fact, argued that income generated for local administration is a relevant consideration.Â
He expands it by pointing out that the condition of the existing Nagar Palika is such that it itself is not in a position to cater to the existing Municipal
Council areas. There is no material as such produced to show the revenue, which is generated by the Badahat area. In this connection, we must
notice a common objection, which is raised, that the persons residing in the Panchayats would be imposed with high taxes and for benefits, which they
are not guaranteed. Mr. Pradeep Joshi, learned Standing Counsel for the State of Uttarakhand would submit that a declaration has already been
made by the Hon’ble Chief Minister that there will be a moratorium for a period of ten years from the payment of Municipal Tax. He would
further submit that it will be acted upon. We record the said submission made by the learned Standing Counsel.Â
Having dealt with all the contentions of the parties, we deem it our duty to make the following observations :
 The inclusion of an area into an urban area from a Panchayat area is not without consequences. Even, according to the State, by the inclusion,
persons residing in the rural areas formerly will stand to gain by way of various benefits. We must notice that when an area comes under the
municipal area, the whole idea is that it is in a condition, which renders it fit to be treated as an area where generally the population is more, the
density of population is more (these are the concepts, which are capable of modulation according to the local context), as we have noticed earlier,
more importantly, making available of various services by the local body. There are certain mandatory services to be provided by the local body.Â
When it decides to include an area, it should be conscious of its grave responsibilities by way of financial commitment it makes. It is not a decision
to be taken lightheartedly. By including an area into urban area of the concerned urban area (in this case smaller urban area), whatever
responsibilities it has, it is duty bound to fulfill otherwise the very purpose of inclusion in such areas would be defeated. Â
 Thus, while we find that there is no merit in writ petitions, at the same time, we observe that the local body concerned will be duty bound to provide
all the facilities, as provided in law, to the residents.Â
Subject to the said observations, the writ petitions will stand dismissed without any order as to cost.Â