Gudia Goswami And 293 Others vs State Of U.P. Thru. Prin. Secy. Deptt. Of Panchayati Raj, Lko. And 10 Others
- Court
- Allahabad High Court
A.F.R.
Reserved on15.04.2026
Delivered on 17.07.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - C No. - 7090 of 2023
Gudia Goswami and 293 others
…..Petitioner(s)
Versus
State of U.P. Thru. Prin. Secy. Deptt. of Panchayati Raj, Lko. and 10
others
…..Respondent(s)
Counsel for Petitioner(s) : Sharad Pathak, Piyush Pathak
Counsel for Respondent(s) : C.S.C., Pankaj Gupta
Court No. - 5
HON'BLE ALOK MATHUR, J.
HON'BLE AMITABH KUMAR RAI, J.
(Delivered by Hon. Amitabh Kumar Rai,J.)
1. Heard Shri Sharad Pathak, learned Senior Counsel assisted by Shri
Piyush Pathak, learned counsel for the petitioners and Shri Rajesh
Tiwari, learned Additional Chief Standing Counsel for the State-
respondent and Shri Pankaj Gupta, learned counsel for the respondent
nos.10 and 11.
2. The instant writ petition has been filed by the petitioners seeking
the following reliefs :
“(i) Issue a writ, order or direction in the nature of
certiorari quashing the impugned notification dated
19.04.2023 so far as it relates to the de-notification of
2
WRIC No. - 7090 of 2023
Village Panchayat Karua as mentioned at Item No.268 of
the Notification dated 19.04.2023, which is annexed as
Annexure No.1 to the writ petition.
(ii) Issue a writ, order or direction in the nature of
Certiorari quashing the report dated 11.04.2023 submitted
by opposite party nos.7 to 9 recommending for de-
notification of Village Panchayat Karua, Tehsil
Colonelganj, District Gonda which is annexed as
Annexure No.2 to this writ petition.
(iii) Issue a writ, order or direction in the nature of
Mandamus commanding the opposite parties to restore
the status of Village Panchayat Karua as was existing
prior to issuance of notification dated 19.04.2023 and
further the time falling in between may be excluded from
the existing term of 5 years of petitioner no.1 as well as
other related members of Gram Sabha Karua.”
3. Brief facts of the present case as canvassed by the learned counsel
for the petitioners are that erstwhile Gram Panchayat Karua
Development Block Colonelganj, District Gonda was a Gram Panchayat
constituted under Section 12 of the Uttar Pradesh Panchayat Raj Act,
1947 (hereinafter referred to as "the Act, 1947"). In the last election of
the Gram Panchayat held in the year 2021-22, petitioner No.1 was
elected as Pradhan. The tenure of the Gram Panchayat was five years,
which has come to an end on 01.05.2026.
4. In the meantime, the State Government issued a notification dated
21.10.2022 under Section 3 of the Uttar Pradesh Municipalities Act,
1916 (hereinafter referred to as the Act, 1916), whereby a certain area of
Gram Panchayat Karua was included within the territorial jurisdiction of
Nagar Palika Parishad, Colonelganj, District Gonda. As a result of the
notification dated 21.10.2022, the area of Gram Panchayat Karua was
reduced, which consequently led to a reduction in its population.
Thereafter, by another notification dated 19.04.2023 issued under
Section 3 along with Section 11-F of the Act, 1947, the remaining area of
3
WRIC No. - 7090 of 2023
Gram Panchayat Karua was merged and included in Gram Panchayat
Kumhraura falling within Development Block Colonelganj, District
Gonda.
5. A perusal of the reasons recorded against Entry No.268 of the
notification dated 19.04.2023 indicates that a part of the population and
area of Gram Panchayat Karua had been merged into Nagar Palika
Parishad, Colonelganj, District Gonda pursuant to Notification
No.1825/ -6-2022-12 /2022 dated 27.09.2022. As a consequence,
नौ सीवी
Gram Panchayat Karua ceased to fulfil the statutory requirements for its
continued existence as a Gram Panchayat. Accordingly, the remaining
area of Gram Panchayat Karua was merged with Gram Panchayat
Kumhraura.
6. Assailing the notification dated 19.04.2023, learned counsel for
the petitioners submits that the remaining area of Gram Panchayat
Karua, which has been included/merged with Village Panchayat
Kumhraura is the result of an illegal and arbitrary exercise of power. It is
submitted that the population of Gram Panchayat Karua even after the
exclusion of the area included in Nagar Palika Parishad, Colonelganj,
District Gonda pursuant to the notification dated 27.09.2022 is 1,719 out
of which 1,104 are voters. This satisfies the minimum population
requirement of 1,000 prescribed under Section 11-F of the Act, 1947.
7. Learned counsel for the petitioners has submitted that an incorrect
report dated 13.02.2023 was forwarded by respondent no.5, District
Panchayat Raj Officer, Gonda to respondent no.4, Chief Development
Officer, Gonda on the basis of which the notification dated 19.04.2023
was issued. It has further been submitted that relying upon the said
incorrect report dated 13.02.2023, respondent no.4, Chief Development
Officer, Gonda addressed a letter dated 25.02.2023 to the Assistant
Development Officer (Panchayat), Development Block, Colonelganj
directing him to take appropriate steps for including the remaining area
of Gram Panchayat Karua in an adjoining Gram Panchayat.
4
WRIC No. - 7090 of 2023
8. It has been alleged that upon learning of the aforesaid
development, petitioner no.1, being Gram Pradhan of Gram Panchayat
Karua, submitted a representation dated 01.03.2023 to respondent no. 4,
Chief Development Officer, Gonda. Acting upon the said representation,
respondent no.4 issued a letter dated 03.03.2023 directing respondent
no.6, Sub-Divisional Magistrate, Tehsil Colonelganj, District Gonda to
inquire into the matter and submit the correct factual report. Thereafter,
another letter dated 06.03.2023 was sent by Chief Development Officer,
Gonda to Sub-Divisional Magistrate, Tehsil Colonelganj, District Gonda.
However, no response was received. Consequently, District Magistrate,
Gonda again addressed a letter dated 28.03.2023 to Sub-Divisional
Magistrate, Tehsil Colonelganj, District Gonda directing him to submit
the correct report. In the meantime, Block Development Officer,
Colonelganj, District Gonda, vide his letter dated 29.03.2023 forwarded
a report regarding the Gram Panchayats affected by the extension of the
territorial limits of Nagar Palika Parishad, Colonelganj, Gonda, wherein
the remaining population of Gram Panchayat Karua was shown as 785 as
per 2011 Census.
9. Feeling aggrieved, petitioner no.1 submitted a detail representation
dated 31.03.2023 to Chief Development Officer, Gonda, wherein it was
stated that even after the extension of the territorial limits of Nagar
Palika Parishad, Colonelganj, Gonda, 1,104 voters continued to reside in
the remaining area of Gram Panchayat Karua. It was further asserted that
the report indicating the existing population of the remaining area of
Gram Panchayat Karua as 785 was factually incorrect.
10. Upon the objections raised by the petitioners, respondent no.4,
Chief Development Officer, Gonda issued a letter dated 31.03.2023
constituting a three-member Committee headed by District Development
Officer to conduct spot and documentary verification and submit its
report so that the objection raised by petitioner no.1 seeking cancellation
of the earlier proposal for the merger of Gram Panchayat Karua could be
decided finally.
5
WRIC No. - 7090 of 2023
11. It has been submitted that despite of the constitution of the three-
member Committee vide letter dated 31.03.2023, no further steps were
taken to decide the objections filed by petitioner no.1. Consequently,
petitioner no.1 submitted another representation dated 12.04.2023.
Thereafter, Writ-C No.3297 of 2023 was filed before this Court seeking,
inter alia, quashing of the report, if any, submitted by the district
authorities for the de-notification of Gram Panchayat Karua and a
direction to complete the inquiry by the three-member Committee as
directed by Chief Development Officer, Gonda vide letter dated
31.03.2023. The said writ petition was disposed of by order dated
25.04.2023 directing that the inquiry be completed unless there existed
any legal impediment. For the said purpose, liberty was also granted to
petitioner no.1 to approach Chief Development Officer, Gonda.
12. It has been submitted that petitioner no.1 served a copy of the
order dated 25.04.2023 upon the Chief Development Officer, Gonda.
However, nothing was communicated to the petitioner no.1.
Subsequently, petitioner no.1 came to know that the notification dated
19.04.2023 had already been issued de-notifying Gram Panchayat Karua
and merging it with Gram Panchayat Kumhraura. Thereafter, the
petitioners submitted a detail representation dated 25.05.2023 to
respondent no.2, Director, Panchayati Raj, Lucknow under Rule 3-
AAA(2) of U.P. Panchayati Raj Rules, 1947 (hereinafter referred to as
the Rules, 1947) read with Section 8 of the Act, 1947 through registered
post raising all objections.
13. The challenge raised by the petitioners in the present writ petition
to the notification dated 19.04.2023, whereby Gram Panchayat Karua
was de-notified and merged with Gram Panchayat Kumhraura is based
on the contention that the remaining population of Gram Panchayat
Karua even after a part of its area was merged into Nagar Palika
Parishad, Colonelganj, District Gonda pursuant to the notification dated
21.10.2022 issued under Section 3 of the Act, 1916 did not fall below the
minimum population of 1,000. According to the petitioners, this factual
6
WRIC No. - 7090 of 2023
assertion has remained unrebutted. It is, therefore, contended that the
entire exercise culminating in the issuance of notification dated
19.04.2023 de-notifying Gram Panchayat Karua and merging it with
Gram Panchayat Kumhraura is illegal, arbitrary and founded on incorrect
facts.
14. This Court while entertaining the present writ petition passed an
order dated 18.02.2025, which reads as under :
“1. Heard Shri Sharad Pathak, learned Counsel for the
petitioners, Shri Rajesh Tiwari, learned Additional Chief
Standing Counsel for the State.
2. The contention of petitioners' counsel inter alia is that
there are 293 petitioners in the writ petition and the
details of their family members are mentioned in a chart
annexed as Annexure No.3 to the writ petition and the
total of the said members comes to 1719, therefore, to say
that because in the Census of 2011, the population of the
village at least the area which remains after merger of the
other part with Nagar Palika Colonelganj was less than
1000, therefore, by the notification dated 19.04.2023, the
said remaining part has been merged with another Gaon
Sabha, appears to be apparently unreasonable.
3. We grant one opportunity to the Collector, District-
Gonda to ascertain the aforesaid facts as to whether all
the petitioners are residents of Gaon Sabha Karua, Tehsil
Colonelganj or not, if so, whether the details of the family
members mentioned in Annexure No.3 to the writ petition
i.e. their number is correct or not. As if it is found to be
correct then even if the case of the opposite parties is that
these are the only residents of the said remaining part of
the Gaon Sabha then also it will qualify to be recognized
as a separate Gaon Sabha. Although, it is the case of the
petitioner that there are other residents also. It is also
asserted that the total voters for this remaining part are
about 1104 from the document of the opposite parties
7
WRIC No. - 7090 of 2023
annexed as Annexure No.13 (page No.205). In this
regard, learned Counsel for the petitioners has placed
reliance upon Section 8 of the U.P. Panchayati Raj Act,
1947 and Rule 3AAA(2) of the U.P. Panchayat Raj Rules,
further, to submit even if the factual position is not found
to be as mentioned above, even then the remaining part of
the Gaon Sabha was entitled to continue as Gaon Sabha
Karua as according to him, remaining part of the Gaon
Sabha cannot be merged in another Gaon Sabha.
4. List/put up this case on 20.03.2025 amongst top ten
cases.
5. Shri Rajesh Tiwari, learned Additional Chief Standing
Counsel shall communicate our order to all the opposite
parties and ensure its compliance. Affidavit of
compliance to be filed by the next date of listing.”
15. In terms of the order dated 18.02.2025, an affidavit of compliance
was filed and sworn by Sub-Divisional Magistrate, Colonelganj, Gonda,
wherein it has been stated that out of 1,719 persons including the
petitioners only 1,193 members submitted their Aadhaar cards and
Pariwar Registers. The inquiry report dated 14.04.2025 on the basis of
which the said affidavit has been filed and which has also been annexed
thereto indicates that the claim of the petitioners is based on the actual
population existing as on the date when the de-notification order dated
19.04.2023 was passed. However, the de-notification exercise was
undertaken on the basis of the population figures reflected in the 2011
Census, which indicate that the population of the remaining area of
Gram Panchayat Karua was 785 below 1,000. Accordingly, Gram
Panchayat Karua was de-notified.
16. The aforesaid facts as narrated by the petitioners hereinabove in
their pleadings available on the record of the writ petition suggest that
the actual population of Gram Panchayat Karua at the time of the de-
notification dated 19.04.2023 was more than 1,000. This factual aspect
could not be controverted by the respondents in their counter affidavit or
8
WRIC No. - 7090 of 2023
the subsequent affidavits filed by them. Rather, the stand taken by the
respondents is that the exercise of de-notification was undertaken on the
basis of the population figures reflected in the 2011 Census, according to
which the population of the remaining area of Gram Panchayat Karua
had fallen below 1,000 after the issuance of the notification dated
21.10.2022 under Section 3 of the Act, 1916, whereby the territorial
limits of Nagar Palika Parishad, Colonelganj, District Gonda were
extended resulting in the inclusion of a part of Gram Panchayat Karua
within the said Nagar Palika Parishad.
17. The issue that falls for consideration before this Court is whether
the notification dated 19.04.2023, whereby Gram Panchayat Karua was
de-notified based on the population figures reflected in 2011 Census is
valid, particularly when no exercise was undertaken to determine the
current population of Gram Panchayat Karua while exercising powers
under Sections 3 and 11-F of the Act, 1947 for de-notifying Gram
Panchayat Karua and merging it with Gram Panchayat Kumhraura.
18. The statutory scheme under the Act, 1947 provides for the
establishment of a Gram Sabha by issuing a notification under Section 3
of the Act, 1947 in the Official Gazette in respect of a village or a group
of villages.
19. Section 11-F of the Act, 1947 provides that the State Government
may, by notification, declare any area comprising a village or a group of
villages to be a Panchayat area, having, so far as practicable, a
population of 1,000.
20. Section 3 of the Act of 1947 reads as under :
“3. Gram Sabha – The State Government shall, by
notification in the official Gazette, establish a Gram Sabha
for a village or group of villages by such name as may be
specified; Provided that where a Gram Sabha is
established for a group of villages, the name of the village
9
WRIC No. - 7090 of 2023
having the largest population shall be specified as the
name of the Gram Sabha.”
21. Section 11-F of the Act of 1947 reads as under :
“11-F-Declaration of Panchayat Area- The State
Government may, by notification, declare any area
comprising a village or group of villages, having, so far
as practicable, a population of one thousand, to be a
Panchayat area for the purposes of this Act by such name
as may be specified:
Provided that for the purposes of declaration of a
Panchayat area no revenue village or any hamlet thereof
shall be divided:
[Provided further that in the hill districts of
Nainital, Almora, Pithoragarh, Tehri, Pauri, Dehradun,
Chamoli or Uttarkashi, the State Government may declare
the area of a Gaon Sabha established under Section 3 of
this Act as it stood before the commencement of the Uttar
Pradesh Panchayat Laws (Amendment) Act, 1994, to be a
Panchayat area though such area may have a population
of less than one thousand.]
(2) The State Government may, on the request of
the Gram Panchayat concerned or otherwise and after
previous publication of the proposal, by notification at
any time-
(a) modify the area of any Panchayat area by
including therein or excluding therefrom any area of a
village or group of villages;
(b) alter the name of the Panchayat area; or
(c) declare that any area shall cease to be a
Panchayat area.”
22. Section 5 of the Act, 1916 provides that if any area is included
within a municipality, such area shall thereby become subject to all
notifications, rules, regulations, bye-laws, orders and directions issued or
10
WRIC No. - 7090 of 2023
made under the Act of 1916. The affairs of such area shall thereafter be
governed by the provisions of the Act, 1916 and the identity of such
Gram Panchayat or the part of the Gram Panchayat included within the
municipality shall cease to exist. Thus, after the issuance of the
notification dated 21.10.2022 under Section 3 of the Act, 1916, the part
of Gram Panchayat Karua included within the extended territorial limits
of Nagar Palika Parishad, Colonelganj, District Gonda lost its identity as
part of Gram Panchayat Karua as the said area acquired the status of a
municipality. The question that falls for consideration is whether
remaining area of Gram Panchayat Karua fulfills the requirement
necessary for retaining its identity as a Gram Panchayat.
23. The term “Population” as defined in Section 2(l) of the Act, 1947
means the population as ascertained in the last preceding census, the
relevant figures whereof have been published.
24. It is not in dispute that the last census was held in the year 2011.
Accordingly, the term “Population”, wherever it finds mention in the Act
of 1947, has to be understood in terms of its statutory definition,
meaning thereby that the population as ascertained in the last census i.e.
Census 2011 has to be taken into consideration for any purpose required
under the Act of 1947. Section 11-F of the Act, 1947, in clear terms,
provides that a Panchayat area shall, so far as practicable, have a
population of 1,000.
25. It is not in dispute that the population of the remaining area of
Gram Panchayat Karua after the merger of a part thereof with Nagar
Palika Parishad, Colonelganj, District Gonda as per the last Census of
2011 is 785 and this fact remains uncontroverted.
26. The petitioners have asserted that the current population of the
remaining area of Gram Panchayat Karua is 1,719 out of which 1,104 are
voters. Therefore, it is contended that Gram Panchayat Karua ought to
have been permitted to retain its status as a Gram Panchayat having a
11
WRIC No. - 7090 of 2023
population of more than 1,000 as required under Section 11-F of the Act,
1947.
27. We are not inclined to accept the argument so advanced by learned
counsel for the petitioners in the face of the statutory provisions
contained in the Act of 1947 as discussed hereinabove. The term
"Population" referred to in Section 11-F of the Act, 1947 has to be
interpreted in the light of its definition contained in Section 2(l) of the
Act, 1947, wherein it is defined to mean the population as per the last
census, the figures of which have been published. It is not in dispute that
the 2011 Census is the last census, the figures of which have been
published. According to the said census, the population of the remaining
area of Gram Panchayat Karua is 785, which is far below the required
population of 1,000, a precondition for maintaining its identity as a
Gram Panchayat under Section 11-F of the Act, 1947. This Court, in the
exercise of its powers under Article 226 of the Constitution, cannot
interfere so as to interpret a statutory provision otherwise than what it
has been expressly provided in the statute itself.
28. The petitioners have also placed reliance on Section 8 of the Act,
1947, to contend that after the inclusion of a part of Gram Panchayat
Karua into Nagar Palika Parishad, Colonelganj, District Gonda, the
jurisdiction of Gram Panchayat Karua should have been reduced to such
an extent so as to retain its independent identity as a Gram Panchayat.
The argument so advanced cannot be accepted, for the reason that the
precondition for retaining an independent identity as a Gram Panchayat
is, so far as practicable, a population of 1,000, as prescribed under
Section 11-F of the Act, 1947. If such an interpretation of Section 8 of
the Act, 1947, is accepted, then even the reduced area of a Gram
Panchayat having a population as low as 100, 50, or 10 would claim to
retain its separate identity as a Gram Panchayat. Such an interpretation
would render Section 11-F of the Act, 1947 nugatory.
12
WRIC No. - 7090 of 2023
29. Section 8 of the Act of 1947 reads as under :
“8. Effect of change in population or inclusion of the area
of a Gram Panchayat in Municipalities, etc. – If the whole
of the area of Gram Panchayat is included in a city,
municipality, cantonment, notified area, or 2 [Nagar
Panchayat] the [Gram Panchayat] shall cease, and its
assets and liabilities shall be disposed of in the manner
prescribed. If a party of such area is so included, its
jurisdiction shall be reduced by that part.”
30. A bare perusal of Section 8 of the Act, 1947 would reveal that
upon the inclusion of an area of a Gram Panchayat within a city,
municipality, cantonment, notified area or Nagar Panchayat, the
jurisdiction of the Gram Panchayat stands reduced to the extent of such
area. However, it does not follow that the reduced area of the Gram
Panchayat would necessarily retain its separate identity as a Gram
Panchayat if it otherwise does not fulfil the statutory requirements
prescribed for a Gram Panchayat. Section 8 of the Act, 1947 has to be
read in consonance and harmony with the other provisions of the Act,
1947.
31. The reference to Rule 3-AAA of the U.P. Panchayati Raj Rules,
1947 by the petitioners is also misconceived as the same has no
relevance to the controversy involved in the present writ petition. Rule 3-
AAA provides that upon inclusion of the area of a Gram Sabha within a
municipality, cantonment, notified area or town area, the Gram Sabha
shall cease to exist and its assets and liabilities shall be transferred to the
local body in which such area is included. The said provision mandates
the transfer of the assets and liabilities of the Gram Sabha pertaining to
the area that has been included within a municipality prior to such
inclusion.
32. The objection filed by the petitioners as argued by learned counsel
for the petitioners could only be appreciated if a claim regarding the
division of assets and liabilities under Rule 3-AAA of the Rules, 1947
13
WRIC No. - 7090 of 2023
was raised. However, such an issue could only be raised by Gram
Panchayat Kumhraura in which the remaining area of the erstwhile Gram
Panchayat Karua was merged vide notification dated 19.04.2023 and
such issue is not subject matter of the present writ petition.
33. The petitioners, in their pleadings, have not alleged any violation
of procedural requirements in the issuance of the notification dated
19.04.2023. They have challenged the said notification solely on the
ground that the current population of Gram Panchayat Karua even after
the inclusion of a part thereof in Nagar Palika Parishad, Colonelganj,
District Gonda is more than 1,000. This ground is not tenable in the eyes
of law in view of the admitted fact that as per Census 2011, the
population of the village was only 785, much below the figure of 1000.
34. Learned counsel for the petitioners has placed reliance upon the
judgment rendered by Hon’ble Supreme Court in the case of Baldev
Singh and others vs. State of Himachal Pradesh and others reported in
(1987) 2 SCC 510, particularly paragraph 4 thereof, to contend that no
opportunity of hearing was afforded to the petitioners before the issuance
of the notification dated 19.04.2023. Paragraph 4 of the said judgment is
reproduced herein below :
“4. Appellants' counsel has raised a more serious issue,
namely, denial of an opportunity of being heard before
the notified area has been constituted. Since Section 256
of the Act requires certain aspects to be satisfied before a
notified area can be constituted, factual determination had
to be made as to whether those statutory conditions were
satisfied. Ours is a democratic polity. At every level, from
the villages up to the national level, democratic
institutions have been introduced. The villages are under
Gram Panchayats, urban areas under municipalities and
corporations, districts are under parishads; for the State
there is a legislature and for the entire country, we have
the Parliament. People residing within Gram Panchayats
have their electoral rights to exercise and in exercise of
14
WRIC No. - 7090 of 2023
such rights, they have elected their representatives.
Citizens of India have a right to decide what should be
the nature of their society in which they live — agrarian,
semi-urban or urban. Admittedly, the way of life varies,
depending upon where one lives. Inclusion of an area
covered by a Gram Panchayat within a notified area
would certainly involve civil consequences. In such
circumstances it is necessary that people who will be
affected by the change should be given an opportunity of
being heard, otherwise they would be visited with serious
consequences like loss of office in Gram Panchayats, an
imposition of a way of life, higher incidence of tax and
the like.”
35. We find from the pleadings of the writ petition that no such
ground has been taken by the petitioners regarding the denial of an
opportunity of hearing before the issuance of the notification dated
19.04.2023. The petitioners have only raised an issue through their
representations/objections submitted before the authorities regarding the
population of the remaining area of Gram Panchayat Karua after the
inclusion of a part thereof in Nagar Palika Parishad, Colonelganj,
District Gonda. Thus, it cannot be said that the petitioners have raised
any issue pertaining to procedural aspects in the issuance of the
notification dated 19.04.2023. In fact, the State Government has issued
Government Orders dated 16.08.2014, 27.10.2020 and 23.12.2020,
whereby guidelines have been prescribed for exercising powers under
Section 11-F of the Act, 1947. However, the petitioners have not alleged
any violation of the provisions contained in the aforesaid Government
Orders.
36. Further reliance has been placed by the petitioners upon paragraph
12 of the judgment and order dated 27.09.2022 passed in Writ-C No.
26793 of 2022 “Sujit and others v. State of U.P. and others” Paragraph
12 of the said judgment is reproduced herein below :
15
WRIC No. - 7090 of 2023
“12. It is implicit in the statutory provision that while
issuing a final notification, the area as originally proposed
to be included in the transitional area, cannot be increased
in such a manner, so as to change the entire complexion
and character of the preliminary notification. The object
of Section 4 is to provide opportunity to the general
public which would include the petitioners herein, to file
objections against the proposal. The Governor exercises
power under Article 243Q having regard to the factors
laid down under clause (2), i.e., 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 factor as he may deem fit. The
objection could be on any of the above aspects, apart
from inclusion/exclusion. This is an invaluable right
conferred in the general public with avowed object of
strengthening their hands in all facets of local self
governance. In the absence of these villages being part of
the proposal notified under Section 4, the right to file
objection has been rendered illusory making Section 4 of
the Act redundant. It amounts to notifying seven villages
in the transitional area without there being any previous
publication, as required by Section 4.What cannot be
done directly cannot be done indirectly. It is nothing but
colourable exercise of power.”
37. A perusal of paragraph 12 of the said judgment and order, relied
upon by the petitioners indicates that it relates to the preliminary
notification issued under Section 4 of the Act, 1916, which provides for
the procedure for issuance of a notification referred to under Section 3 of
the Act, 1916 declaring a transitional area and an urban area. The
reliance so placed is misconceived as the petitioners have not challenged
the notification dated 21.10.2022 issued under Section 3 of the Act, 1916
so as to contend in the present writ petition that the inclusion of a part of
16
WRIC No. - 7090 of 2023
Gram Panchayat Karua within Nagar Palika Parishad, Colonelganj,
District Gonda by the said notification was bad in law.
38. In the absence of any such challenge to the notification issued
earlier under Section 3 of the Act, 1916 in the present writ petition, we
cannot delve into such an issue in the present writ petition.
39. The petitioners have further placed reliance upon the judgment
rendered by the Hon’ble Supreme Court in the case of State of U.P. vs.
Pradhan Sangh Kshetra Samiti, reported in 1995 Supp (2) SCC 305,
particularly paragraph 44 of the judgment, which is quoted hereinbelow:
“44. It is for the Government to decide in
what manner the panchayat areas and the
constituencies in each panchayat area will be
delimited. It is not for the court to dictate the
manner in which the same would be done. So long
as the panchayat areas and the constituencies are
delimited in conformity with the constitutional
provisions or without committing a breach thereof,
the courts cannot interfere with the same. We may,
in this connection, refer to a decision of this Court
in Hingir-Rampur Coal Co. Ltd. v. State of Orissa
[(1961) 2 SCR 537 : AIR 1961 SC 459] . In this
case, the petitioner-mineowners, had among
others, challenged the method prescribed by the
legislature for recovering the cess under the Orissa
Mining Areas Development Fund Act, 1952 on the
ground that it was unconstitutional. The majority
of the Bench held that the method is a matter of
convenience and, though relevant, has to be tested
in the light of other relevant circumstances. It is
not permissible to challenge the vires of a statute
solely on the ground that the method adopted for
the recovery of the impost can and generally is
adopted in levying a duty of excise.”
17
WRIC No. - 7090 of 2023
40. We are afraid to accept that the aforesaid proposition of law laid
down in paragraph 44 of the judgment passed in Pradhan Sangh Kshetra
Samiti (supra), in any manner, supports the case of the petitioners. On
contrary, it supports the case of the respondents, inasmuch as it has not
been questioned that the notification dated 19.04.2023 was issued in
violation of the statutory provisions contained in Sections 3 and 11-F of
the Act, 1947. Section 5 of the Act, 1916 provides that if any area is
included within a municipality, such area shall thereafter become subject
to all notifications, rules, regulations, bye-laws, orders and directions
issued or made under the Act of 1916. The affairs of such area shall be
governed by the provisions of the Act of 1916 and the identity of such
Gram Panchayat or the part of the Gram Panchayat included within the
municipality shall cease to exist. Thus, after the issuance of the
notification dated 21.10.2022 under Section 3 of the Act, 1916, the part
of Gram Panchayat Karua included within the extended territorial limits
of Nagar Palika Parishad, Colonelganj, District Gonda lost its identity as
part of Gram Panchayat Karua, as such area acquired the status of a
municipality. The stand taken by the respondents referring to the term
“Population” as defined under Section 2(l) of the Act, 1947 goes to the
root of the matter as the case of the petitioners is that the term
“Population” should be construed to mean the actual population existing
on the date on which the notification was issued and not the population
reflected in the last census. In fact, paragraph 44 of the judgment relied
upon by the petitioners does not support the case set up by them in the
present writ petition.
41. The petitioners have also relied upon the judgment rendered in the
case of Kishorchandra Chhanganal Rathod vs. Union of India and others
reported in (2024) 13 SCC 237. The said judgment relates to the exercise
of power by Hon’ble Supreme Court concerning judicial interference in
the process of delimitation, which is barred under Article 329 of the
Constitution of India. The said issue is not involved in the present writ
petition. Accordingly, the reliance placed by the petitioners upon the
aforesaid judgment is misconceived.
18
WRIC No. - 7090 of 2023
42. Further, when we analyze the notification dated 19.04.2023 issued
under Sections 3 and 11-F of the Act, 1947, we find that the aforesaid
exercise of issuing the notification is in furtherance of the power
conferred under the statutory provisions contained in Sections 3 and 11-
F of the Act, 1947, which, in essence, constitutes conditional legislation.
The power to include a particular area within the prescribed jurisdiction
conferred under Section 11-F of the Act,1947 is not merely an
administrative power. The Hon'ble Supreme Court, in Tulsipur Sugar Co.
Ltd. v. The Notified Area Committee, Tulsipur reported in (1980) 2 SCC
295 while dealing with Section 3 of the U.P. Town Areas Act, 1914 held
after considering the nature of the power exercised by the State
Government under Section 3 that the said power is legislative in
character. Paragraphs 7, 8, and 17 of the said judgment are reproduced
herein below:
“7. We are concerned in the present case with the
power of the State Government to make a
declaration constituting a geographical area into a
town area under Section 3 of the Act which does
not require the State Government to make such
declaration after giving notice of its intention so to
do to the members of the public and inviting their
representations regarding such action. The power
of the State Government to make a declaration
under Section 3 of the Act is legislative in
character because the application of the rest of the
provisions of the Act to the geographical area
which is declared as a town area is dependent upon
such declaration. Section 3 of the Act is in the
nature of a conditional legislation. Dealing with
the nature of functions of a non-judicial authority,
Prof. S.A. De Smith in Judicial Review of
Administrative Action (3rd Edn.) observes at p.
163:
“However, the analytical classification of a
function may be a conclusive factor in excluding
19
WRIC No. - 7090 of 2023
the operation of the audi alteram partem rule. It is
generally assumed that in English law the making
of a subordinate legislative instrument need not be
preceded by notice or hearing unless the parent Act
so provides.”
8. In Bates v. Lord Hailsham of St. Marylebone
[(1972) 1 WLR 1373 : (1972) 3 All ER 1019,
1023-1024] the facts were these: In 1964, the
British Legal Association was formed. Out of
about 26,000 practising solicitors some 2,900 were
members of the association. The Lord Chancellor
announced on May 1, 1972, that the scale of fees
under Schedule I to the Solicitor's Remuneration
Order, 1883 were proposed to be abolished and
that for all conveyancing transactions the system
of quantum meruit was to be applied. On June 6,
pursuant to Section 56(3) of the Solicitors Act,
1957, the Law Society was sent by the committee
set up under Section 56(1) a draft of the order
proposed to be made under Section 56(2). The
draft order was published in The Law Society's
Gazette on June 21. The association sent out two
circulars about the proposed order, the first at the
end of May, to all solicitors, and the second on
July 17, making a series of accusations against the
Lord Chancellor and the Law Society. On July 11,
the association sent printed submissions to the
statutory committee, requesting that the order
should not be approved at this juncture and that the
Lord Chancellor should seek further consultations
with the profession and professional organisations.
On July 14, the association wrote to each member
of the committee asking for further time and a
deferment of the decision for two months. The
Lord Chancellor's reply dated July 18, was that he
saw no reason for postponing the meeting or for
20
WRIC No. - 7090 of 2023
refraining from making the order in such terms as
the committee approved. On July 18, the plaintiff
as a member of the national executive committee
of the association, took out a writ against all
members of the statutory committee, seeking a
declaration and an injunction, and on July 19, at 2
p.m. having previously notified the Treasury
Solicitor of the intention, he moved the court ex
parte, seeking to restrain the committee from
holding the meeting which was to be held at 4.30
p.m. on that day. The motion was dismissed by
Megarry, J., and we feel rightly with the following
observations:
“In the present case, the committee in question has
an entirely different function: it is legislative rather
than administrative or executive. The function of
the committee is to make or refuse to make a
legislative instrument under delegated powers. The
order, when made, will lay down the remuneration
for solicitors generally; and the terms of the order
will have to be considered and construed and
applied in numberless cases in the future. Let me
accept that in the sphere of the so-called quasi-
judicial the rules of natural justice run, and that in
the administrative or executive field there is a
general duty of fairness. Nevertheless, these
considerations do not seem to me to affect the
process of legislation, whether primary or
delegated. Many of those affected by delegated
legislation, and affected very substantially, are
never consulted in the process of enacting that
legislation; and yet they have no remedy. Of
course, the informal consultation of representative
bodies by the legislative authority is a common
place; but although a few statutes have specifically
provided for a general process of publishing draft
21
WRIC No. - 7090 of 2023
delegated legislation and considering objections
(see, for example, the Factories Act, 1961,
Schedule 4), I do not know of any implied right to
be consulted or make objections, or any principle
on which the courts may enjoin the legislative
process at the suit of those who contend that
insufficient time for consultation and consideration
has been given. I accept that the fact that the order
will take the form of a statutory instrument does
not per se make it immune from attack, whether by
injunction or otherwise; but what is important is
not its form but its nature, which is plainly
legislative.”
…………..17. We are, therefore, of the view that a
notification issued under Section 3 of the Act
which has the effect of making the Act applicable
to a geographical area is in the nature of a
conditional legislation and that it cannot be
characterised as a piece of subordinate legislation.
In view of the foregoing, we hold that the
contention of the plaintiff that the declaration
made by the State Government under Section 3 of
the Act declaring the area in which the sugar
factory of the plaintiff is situated as a part of the
Tulsipur town area is invalid is not tenable.”
(Emphasis supplied)
43. When we go through the provisions of Sections 3 and 11-F of the
Act, 1947, which have already been quoted in the earlier part of the
judgment, we find that specific conditions have been prescribed for the
declaration of a panchayat area. This exercise is required to be
undertaken by the State Government through the issuance of a
notification under Section 11-F of the Act, 1947 on the satisfaction of
conditioned enumerated in Section 11-F. The power to include a
particular area within the prescribed jurisdiction conferred under the
statute is not merely an administrative power but a legislative power and
22
WRIC No. - 7090 of 2023
is legislative in character. Reference may be made to the judgment of the
Hon'ble Supreme Court in the case of State of Punjab v. Tehal Singh and
Others reported in (2002) 2 SCC 7, wherein the Hon'ble Supreme Court,
while examining Sections 3 and 4 of the Punjab Panchayati Raj Act,
1994 held as follows in paragraphs 4 to 8 of the said judgment:
“4. Coming to the first question, it is necessary to
set out the relevant provisions of Sections 3 and 4
of the Act, which are as under:
“3. Establishment of Gram Sabha areas.—(1) The
State Government may, by notification, declare any
village or group of contiguous villages with a
population of not less than two hundred to
constitute a Gram Sabha area:
Provided that a new Gram Sabha area may be
constituted for any village or group of contiguous
villages in respect of a separate distinct abadi or
group of abadis having a population of not less than
two hundred taking into consideration its physical
distance from the main village or villages, as the
case may be and other relevant facts:
Provided further that neither the whole nor any part
of —
(a) a Notified Area under Section 241 of the Punjab
Municipal Act, 1911, or any other Act for the time
being in force; or
(b) a Cantonment; or
(c) a Municipality of any class; or
(d) a Municipal Corporation;
shall be included in a Gram Sabha area unless the
majority of voters in any Notified Area or
Municipality of the Third Class desire the
establishment of a Gram Sabha in which case the
assets and liabilities, if any, of the Notified Area
Committee or the Municipal Committee, as the case
may be, shall vest in the Gram Panchayat of that
23
WRIC No. - 7090 of 2023
Gram Sabha and the Notified Area Committee or
the Municipal Committee shall cease to exist.
(2) That State Government may, by notification,
include any area in or exclude any area from the
Gram Sabha area.
*
4. Constitution of Gram Sabha.—(1) The State
Government may, by notification establish a Gram
Sabha by name for every area declared as Gram
Sabha area under Section 3.
(2) Every person who is entered as voter on the
electoral roll prepared by the State Election
Commission and for the time being in force
pertaining to the area of a Gram Sabha, shall be
member of the Gram Sabha.”
5. Before we consider the main question, it is
necessary to trace out the nature of power, that the
State Government exercises under provisions of
Sections 3 and 4 of the Act. The said power could
either be legislative, administrative or quasi-
judicial.
6. In Rameshchandra Kachardas Porwal v. State of
Maharashtra [(1981) 2 SCC 722] it was held that
making of a declaration by notification that certain
place shall be the principal market yard for a
market area under the relevant Agricultural Produce
Market Act was an act legislative in character. In
Union of India v. Cynamide India Ltd. [(1987) 2
SCC 720] this Court while making distinction
between legislative, administrative and quasi-
judicial held thus: (SCC pp. 735-36, para 7)
“‘A legislative act is the creation and promulgation
of a general rule of conduct without reference to
particular cases; an administrative act is the making
and issue of a specific direction or the application
of a general rule to a particular case in accordance
24
WRIC No. - 7090 of 2023
with the requirements of policy.’ ‘Legislation in the
process of formulating a general rule of conduct
without reference to particular cases and usually
operating in future; administration is the process of
performing particular acts, of issuing particular
orders or of making decisions which apply general
rules to particular cases.’ It has also been said:
‘Rule-making is normally directed toward the
formulation of requirements having a general
application to all members of a broadly identifiable
class’ while, ‘an adjudication, on the other hand,
applies to specific individuals or situations’. But,
this is only a broad distinction, not necessarily
always true. Administration and administrative
adjudication may also be of general application and
there may be legislation of particular application
only. That is not ruled out. Again, adjudication
determines past and present facts and declares
rights and liabilities while legislation indicates the
future course of action. Adjudication is
determinative of the past and the present while
legislation is indicative of the future. The object of
the rule, the reach of its application, the rights and
obligations arising out of it, its intended effect on
past, present and future events, its form, the manner
of its promulgation are some factors which may
help in drawing the line between legislative and
non-legislative acts.”
7. The principles of law that emerge from the
aforesaid decisions are: (1) where provisions of a
statute provide for the legislative activity i.e.
making of a legislative instrument or promulgation
of general rule of conduct or a declaration by a
notification by the Government that certain place or
area shall be part of a Gram Sabha and on issue of
such a declaration certain other statutory provisions
25
WRIC No. - 7090 of 2023
come into action forthwith which provide for
certain consequences; (2) where the power to be
exercised by the Government under provisions of a
statute does not concern with the interest of an
individual and it relates to public in general or
concerns with a general direction of a general
character and not directed against an individual or
to a particular situation; and (3) lay down future
course of actions, the same is generally held to be
legislative in character.
8. Viewed in the light of the statement of law stated
hereinbefore, we find that the provisions of
Sections 3 and 4 of the Act which provide for
declaring territorial area of a Gram Sabha and
establishing a Gram Sabha for that area do not
concern with the interest of an individual citizen or
a particular resident of that area. Declaration
contemplated under Section 3 of the Act relates to
an area inhabited by the residents which is sought
to be excluded or included in a Gram Sabha. The
declaration under Section 3 of the Act by the
Government is general in character and not directed
to a particular resident of that area. Further, the
declarations so made under Sections 3 and 4 of the
Act do not operate for the past transactions but for
future situations. Under the aforesaid situation,
when declarations by issue of notifications by the
Government are made under Sections 3 and 4 of the
Act respectively, determining the territorial area of
a Gram Sabha and establishing a Gram Sabha for
that area, such declarations become operative at
once. Once declarations are made under Sections 3
and 4 of the Act respectively and thereafter a Gram
Panchayat is constituted under Section 10 of the
Act, the entire remaining provisions of the Act
become operative. On such declarations by a
26
WRIC No. - 7090 of 2023
notification in the Gazette, the Gram Sabha, a body
corporate comes into being with a number of
powers and functions conferred upon it under the
Act. As soon as a Gram Sabha is established and
Gram Panchayat is constituted, they are entrusted
with many general functions viz. construction,
repair, and maintenance of community assets,
agriculture including agriculture extension, animal
husbandry, dairy and poultry, fisheries, social and
farm forestry, minor forest produce, fuel and
fodder, khadi, village and cottage industries, rural
housing, rural electrification including distribution
of electricity, non-conventional energy source,
poverty alleviation programme, education including
primary and secondary schools, adult and non-
formal education, promotion of adult literacy,
cultural activities, fairs and festivals, public health
and family welfare, women and child development,
social welfare etc. Further, Gram Sabhas and Gram
Panchayats have been conferred numerous other
powers and duties enumerated in Section 35 of the
Act. Besides that, the Gram Panchayat is entrusted
with the judicial functions which are civil and
criminal in nature. The power exercisable under
Sections 3 and 4 of the Act respectively by the
Government was, therefore, not an exercise of a
judicial or quasi-judicial function where the very
nature of function involves the principles of natural
justice or in any case of an administrative function
affecting the rights of an individual. We are,
therefore, of the view that on making of declaration
under Section 3 of the Act determining the
territorial area of a Gram Sabha and thereafter
establishing a Gram Sabha for that area is an act
legislative in character in the context of the
provisions of the Act.”
27
WRIC No. - 7090 of 2023
(Emphasis supplied)
44. The function of the State Government in issuing a notification
under Section 3 of the Act, 1947 establishing a Gram Sabha and in
issuing a notification under Section 11-F of the Act, 1947 declaring any
area comprising a village or group of villages having, so far as
practicable, a population of 1,000 to be a Panchayat under the Act is
neither executive nor administrative; rather, it is legislative in nature. No
adjudicatory duty is cast upon the Government in the discharge of these
statutory functions of issuance of notification. The only question to be
examined by the Government while issuing such a notification is
whether the conditions prescribed under the statutory provisions have
been fulfilled. In the case of conditional legislation, the power of
legislation is exercised by the legislature conditionally leaving to the
discretion of an external authority the determination of the time and
manner of bringing its legislation into effect as well as the determination
of the subject matter(s), area(s) etc. to which it is to extend depending on
the terms of the statutory provisions conferring such discretion. In
conditional legislation, the enforcement of the law depends upon the
fulfilment of the prescribed condition(s) and what is required of the
authority is the exercise of its power to determine whether such
condition(s) have been fulfilled so as to bring into force the legislative
intent.
45. Section 11-F of the Act, 1947 lays down the conditions for the
declaration of a Panchayat Area, namely, that the area comprising a
village or a group of villages should, so far as practicable, have a
population of 1,000. A further condition is that for the purpose of
declaring a Panchayat Area, no revenue village or any hamlet thereof
shall be divided. Sub-section (2) of Section 11-F empowers the State
Government to modify the area of any Panchayat Area by including
therein or excluding therefrom any area of a village or group of villages,
after previous publication of the proposal for such purpose. The exercise
of power under sub-section (2) is always subject to the fulfilment of the
28
WRIC No. - 7090 of 2023
conditions enumerated in sub-section (1) of Section 11-F. In our view,
the issuance of notifications under Sections 3 and 11-F of the Act of
1947 is an exercise undertaken by the State Government in terms of the
statutory provisions contained in the Act, 1947 and the issuance of such
notifications is an act of conditional legislation.
46. In the present case as discussed in the earlier part of the judgment,
the area and population of Gram Panchayat Karua were reduced after
merger of a part of its area with Nagar Palika Parishad, Colonelganj,
District Gonda. This necessitated the issuance of a notification to include
its remaining area within Gram Panchayat Kumhraura as the population,
according to the Census 2011, had been reduced to 785, which was far
below the minimum requirement of 1,000. This minimum population is
an essential condition for the independent identity of a Panchayat Area.
47. A notification issued as an act of conditional legislation can be
challenged only if it exceeds the statutory mandate, lacks the requisite
precedent conditions or violates constitutional rights. The petitioners
have miserably failed to point out any violation of the aforesaid
mandates so as to render the notification dated 19.04.2023 illegal or bad
in law. Accordingly, we do not find any infirmity or illegality in the
issuance of the notification dated 19.04.2023 to the extent it has been
challenged in the present writ petition.
48. In view of the aforesaid reasons, we are not inclined to interfere in
the present writ petition. Accordingly, the writ petition is dismissed.
49. No order as to costs.
(Amitabh Kumar Rai,J.) (Alok Mathur,J.)
July 17, 2026
Mahesh
Digitally signed by :-
MAHESH KUMAR
High Court of Judicature at Allahabad,
Lucknow Bench