- (1.) The issues involved in both the petitions are similar, hence are being disposed of by a common judgment. CMWP No. 8226 of 2020 is treated as a leading petition. 1. The petitioner no.1 in CMWP No. 8226 of 2020 is Nagar Panchayat Jhunsi, Prayagraj through its Chairman and petitioner no.2 is the Chairman in her individual capacity. A challenge is laid by them to the notification dated 31.12.2019 issued by the State Government merging Nagar Panchayat, Jhunsi, Prayagraj into Nagar Nigam, Prayagraj and for mandamus declaring paragraphs- 3 and 5 of the Government Order dated 3.4.2018 as unconstitutional with a further prayer to not to interfere in the working of petitioner no.2 as Chairman Nagar Panchayat, Jhunsi and finally inviting the objections of the Board of Nagar Panchayat, Jhunsi for inclusion of Nagar Panchayat, Jhunsi in Nagar Nigam Prayagraj. The petitioners in the connected petition are All India Panchayat Parishad, a registered society, which claims to have branches, all over India and the District President of District Prayagraj, who also claims himself to be as elected Pradhan of Gram Panchayat Tendui, Block- Bahadurpur, Tehsil- Phulpur, Prayagraj. They too have challenged the notification dated 31.12.2019 including certain villages/ Gram Panchayats of Block Bahadurpur into Nagar Nigam Prayagraj.
(2.) Heard Sri Shashi Nandan, learned Senior Counsel assisted by Shri Udayan Nandan, Sri R.K. Ojha, learned Senior Counsel assisted by Sri Hardev Singh for the petitioners in the respective petitions and Sri Anoop Trivedi, learned Senior Advocate, assisted by Sri Vibhu Rai for Nagar Nigam Prayagraj and Ms. Shubhra Singh, learned Standing Counsel for the State.
(3.) Shri Shashi Nandan, learned Senior Counsel assisted by Shri Udayan Nandan for the petitioner in the leading petition broadly raised following contentions:- i) The impugned notification is issued in purported exercise of the powers conferred under Article 243Q of the Constitution of India sought to be exercised on the recommendation of the Commissioner under the Government Order dated 3.4.2018, wherein in paragraph-4 thereof certain conditions have been mentioned for proposed merger and in paragraph-5 thereof it is provided that either such a proposal must emerge from the resolution of the Board, i.e, of Nagar Nigam Prayagraj or the report of the Commissioner but in the absence of any proposal of the Board of Nagar Nigam Prayagraj, conferment of alternate power on the Commissioner to forward its report is in blatant violation of the spirit of 74th Constitutional Amendment. ii) Learned Senior Counsel for the petitioner while placing the provisions of UP Municipal Corporation Act, 1959 (short "the Act of 1959") submitted that in the entire scheme, no power is conferred on the Commissioner but for clause (56) of Section 2 which has no relevance to the present case. It is thus submitted that the recommendation of the Commissioner for merger of Nagar Panchayat, Jhunsi in Nagar Nigam Prayagraj is dehors the law rendering the impugned notification invalid. iii) Article 243U of the Constitution read with Section 10-A of the U.P. Municipalities Act, 1916 (short "the Act of 1916") confers security of tenure of a municipality for a period of 5 years from the date appointed for its meeting, which in the present case was 27.12.2017, which can only be brought to an end prior to expiry of the said period only in the event of a dissolution but after a reasonable opportunity of being heard not resorted in the present case. iv) The provisions of Section 4 of the Act of 1916 relating to inviting objections prior to inclusion of a Gram Panchayat into Nagar Panchayat should be read down in case of inclusion of Nagar Panchayat in Nagar Nigam. ;