- (1.) Smt. Mohini Sharma w/o Amar Pal Sharma, r/o Village Khoda, Block Loni, District Ghaziabad, is before this Court for following reliefs: I. issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 20.7.2016 passed by the respondent no. 3, Commissioner, Meerut Division, Meerut. II. issue a writ, order or direction in the nature of mandamus directing the respondent-authorities to allow the petitioner to continue to work and discharge her duties as Gram Pradhan, Gram Panchayat Khoda, Block Loni, District Ghaziabad till validly constituted Nagar Palika Parishad with all powers comes in existence. III. issue a writ, order or direction in the nature of mandamus restraining the respondent-authorities from taking any action in pursuance of the impugned order dated 20.7.2016 and allow the petitioner to work as full fledged Gram Pradhan, Village Khoda, Block Loni, District Ghaziabad. IV. issue such other and further writ, order or direction which this Hon'ble Court may deem fit and proper in the nature and circumstances of the present case. V. award costs of the petition to the petitioner.
(2.) Brief background of the case, as is emanating from the record, is that petitioner contested elections for the post of Gram Pradhan of Gram Panchayat Khoda, Block Loni, District Ghaziabad in the elections held somewhere in November-December 2015 and in the said elections petitioner was elected as Gram Pradhan and, thereafter, petitioner continued to perform and discharge her duties as Gram Pradhan of the aforesaid Gram Panchayat and it appears that thereafter Nagar Palika Parishad Khoda has been constituted under the provisions of U.P. Municipalities Act, 1916 and at the said point of time the State Government came up with the notification dated 30.3.2015 and at the end of the day Nagar Palika Parishad Khoda Makanpur, Block Loni, District Ghaziabad has come into existence. Petitioner, at the said juncture, preferred Writ Petition (MB) No. 13297 of 2016 [Mohini Sharma & others Vs. State of U.P. & others] assailing the notification dated 10.3.2016 issued in exercise of the powers under Article 243 (E) and Article 243 (Q) of the Constitution of India read with Section 3 of U.P. Municipalities Act, 1916. The ground of the said challenge was that since the tenure of the petitioners as the Pradhan and Member of the Gaon Sabha has not yet come to an end, the aforesaid delimitation and bringing the area within municipal limits is unconstitutional and consequential order dated 28.4.2016 was also prayed for wherein petitioners have been restrained from exercising financial powers in relation to the said area. The said challenge in question has been considered by the Division Bench and this Court has proceeded to pass the following order; "Heard Sri H.G.S Parihar learned senior counsel assisted by Sri Sarvesh Kumar Dubey, learned counsel for the petitioners. This writ petition has raised a two fold challenge one to the notification dated 10.03.2016 issued in exercise of the powers under Article 243(E) and Article 243 (Q) of the Constitution of India read with Section 3 of the U.P. Municipalities Act, 1916 on the ground that since the tenure of the petitioners as the Pradhan and Member of the Gaon Sabha has not yet come to an end, the aforesaid de-limitation and bringing of the area within Municipal limits is unconstitutional. The second ground raised is that by virtue of such a notification a consequential order that has been passed on 28.04.2016 restraining the petitioners from exercising financial powers in relation to the said area is also ultravires the provisions of the Act and is equally unconstitutional. To substantiate this submission, learned counsel for the petitioner has invited attention of the Court to the application dated 07.05.2016 filed before the District Magistrate a copy whereof is annexure no. 6 to the writ petition where the actual grievance of the petitioners have been entailed. It has been alleged therein that certain development work has already been carried out and as a result of the aforesaid action taken by the respondent, the payment for the said work already executed before has been withheld and therefore, the same deserves to be redressed. We have heard learned counsel for the petitioners as well as the learned Standing Counsel for the State-respondent nos. 1 to 4. The first ground taken with regard to the impugned notification dated 10.03.2016 cannot be accepted inasmuch as the constitutional powers in order to notify an already existing local area as a municipal area is vested in the respondent under Article 243 Q read with Section 3 of the U.P. Municipalities Act,1916. Since the power to do so is available we have not been able to find any error in the issuance of the said notification so as to strike down the same. The major issue is with regard to the functions already undertaken and the development work carried out prior to any such action which is impugned herein particularly the orders relating to the operation of the financial accounts dated 28.04.2016. From a perusal of the application dated 07.05.2016, it appears that the petitioners allege to have carried out development work on five counts which are mentioned in the said applications, the payment whereof has not yet been made on account of the intervening order dated 28.05.2016. In order to resolve this crisis, which clearly relates to the exercise of financial powers on account of such declaration of local area as being Nagar Palika Parishad, we find that under the U.P. Municipalities Act, 1916, the prescribed authority has been defined under Section 2 (17)(ii) as follows:- (17)(ii)"Prescribed authority" means an officer or a body corporate appointed by the State Government in this behalf by notification in the Official Gazette and if no such officer or body corporate is appointed, the Commissioner: Consequently this being a matter of financial administration the work already carried out under the auspices of the Gaon Sabha therefore has to be looked into, and if the work has been carried out in accordance with rules, then the issue with regard to the payments which are to be made in relation thereto has to be resolved as according to the petitioners the work has been actually carried out. We therefore, find that it would be appropriate that the Commissioner of the division who is the prescribed authority of Nagar Palika Parishad can after calling for comments from his subordinate officers including the District Magistrate proceed to examine the said claim of the petitioners as it requires to be resolved if the expenses have been actually incurred. Consequently the payment will have to be released if the development work has been carried out in accordance with rules. The Commissioner Meerut respondent no.2 shall therefore now proceed to deal with the matter in view of what has been stated above and issue necessary instructions or pass appropriate orders, if it is within his jurisdiction in relation thereto and inform the Gaon Sabha concerned of which the petitioner no.1 claiming herself to be elected Gram Pradhan. Needless to mention that the elections of the Gaon Sabha were held very recently in the year 2015. In such a situation, this financial administration in this peculiar circumstances, therefore, requires to be resolved. The Commissioner shall pass orders expeditiously and preferably within three weeks' from the date of production a certified copy of this order. In the event Commissioner finds that the matter has to be brought to the notice of the State Government for resolution of any such dispute in the absence of any jurisdiction, then the same shall be dispatched forthwith and the State Government will also be obliged to take a decision within the said period. With these directions, the writ petition is disposed off."
(3.) Pursuant to the order passed by this Court the claim in question has been considered and same has been turned down by informing the petitioner that once the provisions of U.P. Municipalities Act, 1916 has come into force, then till the committee in question has not been constituted, the ad-hoc committee would function. Petitioner at this juncture is assailing the validity of the aforementioned order before this Court.;