IN THE HIGH COURT OF JUDICATURE AT PATNA
(1) CWJC No.1297 of 2010
1. ANAND KUMAR JHA S/O JIVNATH JHA
R/O VILLAGE CHOURAMA, P.S.+P.O.- BHERA, DISTT.-
DHARBHANGA
2. SHAILENDRA MOHAN PASWAN S/O YOGENDRA PASWAN
R/O VILLAGE BENIPUR, P.S. BAHERA, P.O. BENIPUR,
DISTRICT DARBHANGA
3. SMT. MANJULA DEVI W/O INDU BHUSHAN THAKUR,
R/O VILLAGE MAJHAURA, P.S. BAHERA, P.O. BENIPUR,
DISTRICT DARBHANGA
4. SMT. ARTI DEVI W/O ARUN KUMAR MAHATO
R/O VILLAGE BAHERA, P.S. BAHERA, P.O. BENIPUR,
DISTRICT DARBHANGA. .........PETITIONER
Versus
1. THE STATE OF BIHAR THROUGH THE PRINCIPAL
SECRETARY, DEPTT. OF URBAN DEVELOPMENT AND
HOUSING DEPTT., GOVT. OF BIHAR, OLD SECRETARIATE,
PATNA
2. THE PRINCIPAL SECRETARY, DEPTT. OF URBAN
DEVELOPMENT AND HOUSING DEPTT., GOVT. OF BIHAR,
OLD SECRETARIATE, PATNA
3. THE PRINCIPAL SECRETARY, DEPTT. OF PANCHAYATI
RAJ, GOVT. OF BIHAR, PATNA
4. THE JOINT SECRETARY, DEPTT. OF URBAN
DEVELOPMENT AND HOUSING DEPTT., GOVT. OF BIHAR,
OLD SECRETARIATE, PATNA
5. THE DIVISIONAL COMMISSIONER, DHARBHANGA
6. THE COLLECTOR, DISTT.- DHARBHANGA
7. THE STATE ELECTION COMMISSION THROUGH ITS
SECRETARY, SONE BHAWAN, BIRCHAND PATEL PATH,
PATNA
8. THE SECRETARY, STATE ELECTION COMMISSION, SONE
BHAWAN, BIRCHAND PATEL PATH, PATNA
9. S.M. ALI IMAM, SON OF LATE S.M. ZAREEF,
R/O MOHALLA BASUHAM QAZIANA, P.O. & P.S. BAHERA,
DISTRICT DARBHANGA.
10. SURENDRA KUMAR JHA, SON OF SHRI RAM SUNDER JHA,
AT, P.O. & P.S. BENIPUR, DISTRICT DARBHANGA.
11. MAHENDRA PASWAN, SON OF LATE RAM DAS PASWAN,
R/O VILLAGE KARHANI, P.S. BAHERA, DISTRICT
DARBHANGA.
12. BISUNDEO PASWAN SON OF LATE SARYUG PASWAN
R/O VILLAGE BENIPUR, P.S. BAHERA, DISTRICT
DARBHANGA.
13. MANI KANT JHA SON OF LATE BACHCHA JHA,
R/O VILLAGE DHERUKH, P.S. BAHERA, DISTRICT
DARBHANGA
14. LALLAN JHA SON OF UPENDRA JHA
R/O VILLAGE BALLAHA, P.S. BAHERA, DISTRICT
DARBHANGA ...............RESPONDENTS
With
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(2) CWJC No.4039 of 2010
BINOD KUMAR JHA S/O SRI INDRA DEO JHA
R/O VILL.- BISHINPUR CHAUGMA, P.S.- BAHERA, DISTT.-
DARBHANGA .....................PETITIONER
Versus
1. THE STATE OF BIHAR THROUGH THE PRINCIPAL
SECRETARY, URBAN DEVELOPMENT DEPARTMENT
2. THE ADDITIONAL SECRETARY CUM DIRECTOR URBAN
DEVELOPMENT AND HOUSING DEPARTMENT
3. THE JOINT SECRETARY URBAN DEVELOPMENT AND
HOUSING DEVELOPMENT DEPARTMENT
4. DIVISIONAL COMMISSIONER, DARBHANGA
5. DISTRICT MAGISTRATE, DARBHANGA
6. SUBDIVISIONAL MAGISTRATE, BENIPUR
..........RESPONDENTS.
-----------
For the petitioners : Mr. Basant Kumar Choudhary,
Senior Advocate.
M/s Nand Kishore Pd. Sinha, Mahendra Pd.
Gupta & Satish Kumar, Advocates.
For the State : Mr. Y.P.Sinha, A.A.G.- V
M/s Shankar Kumar & Arun Kumar
Advocates.
For the Election Commission : Mr. R.S.Pradhan, Senior Advocate.
M/s. Rajeev Lochan & Sanjeev Nikesh,
Advocates.
For the interveners : Mr. Ganesh Pd. Singh, Senior Advocate.
M/s Shivaji Pandey, Manish Kumar,
Maruth Nath Roy, Md. Anjum
Akhter & Md.Helal Ahmad, Advocates.
———-
PRESENT
HON’BLE MR. JUSTICE S. N. HUSSAIN
S.N.HUSSAIN,J. Both these writ petitions have been filed challenging Government
Notification vide Memo No.4(N)GATH-09/2008/1691 dated 20.05.2009 by
which Benipur Nagar Parishad was created with immediate effect by merging
24 villages, including several Gram Panchayats e.g. Gram Panchayat Raj
Basuham, Gram Panchayat Raj Benipur, Gram Panchayat Raj Bahera and Gram
Panchayat Raj Mahujala all of sub-division Benipur in the district of Darbhanga
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and also for quashing all follow up actions pursuant to the aforesaid notification.
2. The first writ petition was filed by four persons, all of whom were
Mukhiyas of different Gram Panchayats of Benipur Block under Darbhanga
district, out of whom the names of petitioner nos.2, 3 and 4 were deleted by
learned counsel for the petitioners and the first writ petition proceeded only with
petitioner no.1. The second writ petition has been filed by one person, who is
the resident of Benipur sub-division. Petitioners of both the aforesaid writ
petitions have claimed that neither the said Gram Panchayats have completed
their five years term fixed in law nor any allegation has been levelled against
them nor the consents of the said Gram Panchayats concerned have been
obtained before taking the aforesaid decision.
3. In the first writ petition I.A. No.1049 of 2010 was filed by the
petitioner for adding a further relief to the writ petition challenging Letter
No.5974 dated 17.12.2009 (Annexure-5) sent by Deputy Secretary-cum-
Director, Urban Development and Housing Department, Government of Bihar
to the Secretary, State Election Commission, Patna communicating him the
affirmative decision of the State Government to the proposed schedule of
election of Benipur Nagar Parishad to be held by the Commission as well as
Letter No.3415 dated 16.12.2009 (Annexure-6) sent by the Secretary, State
Election Commission, Patna to the Secretary, Urban Development and Housing
Department, Government of Bihar giving the detailed programme for election of
the newly constituted Benipur Nagar Parishad, which is under challenge in the
writ petition. A Prayer for an interim order of stay was also sought in the said
interlocutory application. This court vide order dated 05.02.2010 added the said
relief to the writ petition, but in view of the proximity of the election the court
did not stay the election and only directed that the results of the election shall
not be announced and the constitution of the Nagar Parishad and the election
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consequently held, would be subject to the result of the writ petition.
4. Learned counsel for the State of Bihar and its authorities (respondent
nos.1 to 6) as well as learned counsel for the State Election Commission and its
Secretary (respondent nos.7 and 8) contest the claim of the petitioners of both
the writ petitions.
5. I.A. No.2222 of 2010 and I.A. No.3421 of 2010 were filed by two
interveners, namely S.M. Ali Imam and Surendra Kumar Jha, who had contested
the election of Benipur Nagar Parishad from different wards, for being
impleaded as respondents in the first writ petition and their said applications
were allowed vide order dated 15.07.2010 and they were directed to be added as
respondent nos.9 and 10. They contest the claim of the writ petitioners.
6. I.A. No.6339 of 2010 was filed by one Mahendra Paswan for being
impleaded as party respondent in the first writ petition claiming that he had
contested the election of Benipur Nagar Parishad from one of its wards. Hence,
this interlocutory application is allowed and he is permitted to be added as
respondent no.11 to the first writ petition. He contests the claim of the writ
petitioners.
7. I.A. No.6900 of 2010 was filed by three applicants, namely Shailendra
Mohan Paswan, Smt. Manjula Devi and Smt. Arti Devi for being added as
intervener petitioners in the first writ petition claiming that when the said writ
petition was filed they were petitioner nos.2, 3 and 4 and they had also filed
their duly executed vakalatnama, but the then learned counsel for the petitioners
wrongly deleted their names on 19.01.2010. In the said circumstances, they
want to proceed with the first writ petition along with petitioner no.1 for the
releifs claimed therein. They have also filed their duly executed vakalatnama
and accordingly the said interlocutory application is allowed and they are
permitted to be added as petitioner nos.2, 3 and 4 to the first writ petition.
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8. Another application bearing I.A. No.6948 of 2010 has been filed by
three applicants, namely Bisundeo Paswan, Mani Kant Jha and Lallan Jha for
being added as party respondents in the first writ petition claiming that they
were also residents of Benipur sub-division. Accordingly, this interlocutory
application is allowed and they are permitted to be added as respondent nos.12,
13 and 14 to the first writ petition. They support the claim of the writ
petitioners.
9. Learned counsel for the petitioners of the first writ petition (C.W.J.C.
No.1297 of 2010) stated that Benipur Block of Darbhanga district contained
several Gram Panchayats, namely Gram Panchayat Raj Basuham, Gram
Panchayat Raj Benipur, Gram Panchayat Raj Bahera and Gram Panchayat Raj
Mahujala each of them having jurisdiction over several villages. In all the
foresaid Gram Panchayats elections were admittedly held in the year 2006 and
since then the said Gram Panchayats with their elected representatives and
Mukhiyas had been duly functioning in accordance with the provisions of the
Bihar Panchayat Raj Act, 2006 and their tenure of five years is going to expire
in the year 2011.
10. Learned counsel for the petitioners of the first writ petition also
stated that all of a sudden on 20.05.2009 Notification No.1691 of 2008
(Annexure-4) was issued by Urban Development and Housing Department,
Government of Bihar under the provision of section 6 of the Bihar Municipal
Act, 2007 constituting Benipur Nagar Parishad (Municipal Council)
amalgamating 24 villages mentioned therein which were parts of four Gram
Panchayats mentioned above within Benipur Block and holding that the
provisions of the Bihar Municipal Act, 2007 will be applicable to the entire area,
meaning thereby that the provisions of the Bihar Panchayat Raj Act, 2006 would
no longer be applicable to the said villages and the Gram Panchayats, consisting
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of the said villages, would become non-existent much before the expiry of their
terms of five years as provided in law.
11. Learned counsel for the petitioners of the first writ petition claimed
that after enquiry they learnt that on 21.10.2008 Letter No.2008/C was sent by
the Deputy Secretary-cum-Director, Urban Development and Housing
Department to the District Magistrate, Darbhanga stating that the Minister of
the Department had sent Memo No.722 dated 03.10.2008 for taking steps under
the provisions of the Bihar Municipal Act, 2007 for formation of Nagar
Panchayat of Benipur Block in which at least 75 per cent population were
dependent on non-agricultural resources and hence the District Magistrate,
Darbhanga was directed to send information on the annexed form with regard to
the required informations and clear proposal. It further transpires that in
response to the aforesaid letter the District Magistrate, Darbhanga filled up the
form and sent it along with his recommendation (Annexure-3 series at page-18)
stating that the population of the said area of Benipur Block was 2,03,000 out of
which 48,000 persons were not dependent on agricultural resources, which
amounted to more than 75 per cent of the population. It also transpires that a
draft notification under section 4 of the Bihar Municipal Act, 2007 was
published on 20.01.2009 with respect to the aforesaid 24 villages for creation of
Benipur Nagar Parishad calling for objection under section 5 of the Act, but it
was not published in any newspaper as required in law nor any enquiry was held
as required under section 3 of the said Act.
12. Learned counsel for the petitioners of the first writ petition further
claimed that the calculation made by the authorities was prima facie wrong and
no concrete data was produced nor there was any material to show that the said
area had 75 per cent urban population. Section 7 of the Bihar Municipal Act,
2007 specifically provided that for the aforesaid purposes the last preceding
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census has to be considered and the last census was of 2001, whereafter no
census had been done and hence in view of the aforesaid provisions of law
formation of Nagar Panchayat had to be done on the basis of the aforesaid
census of 2001, but the said census (Annexure-13 to supplementary affidavit
dated 30.04.2010) clearly showed that in the entire Benipur block there was no
urban population rather the entire population was rural and based on agriculture.
13. Learned counsel for the petitioners of the first writ petition averred
that 90 per cent of the families of Benipur Block are involved in agriculture and
allied works and there is no industry or urban business centre therein and hence
elections of Gram Panchayats were held in those areas in the year 2006,
whereafter the elections of Primary Agriculture Credit Societies were also held
in those villages and the said Panchayats and Societies have been working since
then, without ever being disturbed.
14. It was also argued on behalf of learned counsel for the petitioners of
the first writ petition that according to the provisions of the Bihar Municipal
Act, 2007 it was incumbent upon the authorities to take any such step only after
consultation with the various Gram Panchayats in the Block, but the authorities
concerned without even informing them suo motu issued notification merely on
the basis of whims and fancies of the politicians as well as the Minister of the
Department concerned, without even ascertaining the wishes of people of the
area and without following the procedure prescribed in law. Hence, he
submitted that the impugned notification is fit to be rejected.
15. Learned counsel for the petitioner of the second writ petition
(C.W.J.C. No.4039 of 2010) added that letter dated 21.10.2008 (Annexure-2)
sent by Urban Development and Housing Department to the District Magistrate,
Darbhanga as well as Report of the Block Development Officer, Benipur dated
24.10.2008 sent to the District Magistrate, Darbhanga clearly showed that
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original proposal was to create Benipur Nagar Panchayat from Gram Panchayats
but finally it was converted to Nagar Parishad. He further submitted that
Government Letter (Annexure-2) was sent on 20.10.2008, whereafter the Sub-
Divisional Officer sent the Memo on 23.10.2008 to Block Development Officer
for enquiry and report and the Block Development Officer submitted his report
on 24.10.2008, although such an extensive matter with regard to population of
the entire Block and its occupation with details cannot be possibly enquired into
and reported within one day. Hence he submits that such a serious matter
requiring detail enquiry was done in a most hasty manner apparently due to
illegal pressure from above.
16. Learned counsel for the petitioner of the second writ petition also
claimed that the provision of sections 3 and 4 of the Bihar Municipal Act, 2007
was not complied by the authorities concerned as neither any enquiry was held
nor any publication was made in accordance with law nor even any objection
was called, although it was statutory duty of the authorities concerned. He
further stated that the respondents have failed to show by any material the basis
of their assumption that 75 per cent of the population of Benipur Block had
become urban, although in the last census of 2001 the entire population of
Benipur Block was found dependent upon agriculture.
17. Learned counsel for the applicants of I.A. No.6900 of 2010, who
have been added as petitioner nos.2, 3 and 4, adopted the arguments of learned
counsel for the petitioners of both the writ petitions. Learned counsel for the
applicants of I.A. No.6948 of 2010, who have been added as respondent nos.12,
13 and 14 to the first writ petition, supported the claim of the writ petitioners
reiterating that no step was taken by the authorities in accordance with law nor
any opportunity was given by the authorities to the concerned persons or the
Gram Panchayats to participate in the enquiry or the proceeding.
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18. Learned counsel for the State of Bihar and its authorities
vehemently opposed the claims raised by the petitioners and stated that Benipur
sub-division was created vide notification no.524 dated 20.11.1976 having its
Headquarter at Benipur which is market area and Gram Panchayats of Benipur,
Bahera, Basuham and Mahujala are adjoining to the sub-divisional headquarter
of Benipur and more than 80 per cent population of the said area is dependent
on non-agricultural activities and is engaged in business and commercial
activities which are amply present in the area which is fully explained in the
report of the Sub-Divisional Officer, Benipur and hence it fulfils all the criteria
of a Nagar Parishad. It is also stated that Benipur Nagar Parishad includes
Bahera Bazar, Registry Office, Police Station, Colleges, Courts of Law and
Government Offices.
19. Learned counsel for the State of Bihar and its authorities also
averred that petitioner no.1 of the first writ petition was the Mukhiya of
Basuham Gram Panchayat and he had himself contested Benipur Nagar
Panchayat election from Ward No.8, whereas petitioner no.3 of the first writ
petition had also contested Benipur Nagar Parishad election from Ward No.15
and hence both of them had accepted the creation of Benipur Nagar Parishad
and they have no right to file the instant writ petition. Learned counsel for the
State of Bihar further averred that the resolutions were passed by all the persons
concerned and only thereafter the process of converting the entire area of the
said four Gram Panchayats into Benipur Nagar Parishad was started which was
legal and proper and in accordance with the provisions of the Bihar Municipal
Act, 2007.
20. Hence he argued that there is no occasion for this court to interfere
specially when the power of judicial review is limited to process only. In this
connection learned counsel for the State of Bihar relies upon a decision of Full
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Bench of this court in case Shree Krishna Prasad Singh & others vs. The
State of Bihar & others, reported in 1978 P.L.J.R. 446 as well as a decision
of this court in case of Sheonath Rai and others vs. The State of Bihar,
reported in 1989 (1) P.L.J.R. 56. Learned counsel for the State of Bihar also
relied upon a decision of the Apex Court in case of Bhaskar Textile Mills Ltd.
vs. Jharsuguda Municipality and others, reported in A.I.R. 1984 SC 583.
21. Learned counsel for the State Election Commission and its
authorities also opposed the contentions of learned counsel for the petitioners
and stated that when after draft notification no objection was received from
anyone, final publication was made by the authorities concerned and hence it
was legal and valid and has been frivolously challenged by the writ petitioners.
He also adopted the arguments made by learned counsel for the State of Bihar
and its authorities and relied upon an order of a Division Bench of this court
dated 16.07.2010 passed in C.W.J.C. No.6291 of 2010 and other analogous
cases of Manoj Rai and others Versus The State of Bihar and others etc.
22. Learned counsel for the applicant of I.A. No2222 of 2010, who has
been impleaded as respondent no.9 to the first writ petition, also contested the
claim of the petitioners stating that the total population of the Parishad is 62,203
out of which 48,000 are based on non-agricultural activities and hence more
than 75 per cent of the population is engaged in non-agricultural work which is
apparent from the report of Sub-Divisional Officer, Benipur dated 24.10.2008
(Annexure-C to I.A. No.2666 of 2010). He further stated that petitioner no.3 of
the first writ petition had raised objection to the draft notification on 31.07.2009
(Annexure-E to second supplementary counter affidavit) which was rejected by
the concerned authority, namely Sub-Divisional Officer, Benipur on 16.08.2009
(Annexure-F) but the said rejection was never challenged by any of the
petitioners.
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23. Learned counsel for respondent no.9 also relied upon a decision of
this court in case of Raghunath Pandey and others vs. The State of Bihar
and others, reported in 1982 P.L.J.R. 49, as well as four decisions of the Apex
Court on the point of judicial review in case of Tata Cellular vs. Union of
India, reported in (1994) 6 Supreme Court Cases 651, in case of Anugrah
Narain Singh and Another vs. State of U.P. and others, reported in (1996) 6
Supreme Court Cases 303, in case of Balco Employees’ Union (Regd.) vs.
Union of India and others, reported in (2002) 2 Supreme Court Cases 333
and in case of Damoh Panna Sagar Rural Regional Bank and Another vs.
Munna Lal Jain, reported in (2005) 10 Supreme Court Cases 84.
24. Learned counsel for the applicant of I.A. No.3421 of 2010, who has
been impleaded as respondent no.10 to the first writ petition, also challenged
the claim raised by the petitioners and averred that in view of the provisions of
Article 226 of the Constitution of India, the High Court is not an appellate court
and hence it has only the jurisdiction for a judicial review when there is a
violation of any specific provision of law or there is a grave error in the
procedure adopted by the authorities. He further claimed that there is no
illegality in the impugned action of the authorities as section 3 of the Bihar
Municipal Act, 2007 is a provision for transition of the area from Panchayat to
Municipality and no bar is provided in developing the area of Gram Panchayat
into a Nagar Parishad, if it fulfils all the criteria and the government is satisfied
on the basis of materials on record. He further claimed that all the process as
provided under sections 3, 5 and 6 of the Bihar Municipal Act, 2007 had been
adopted by the authorities and hence there is no occasion for any fishing enquiry
into the matter specially when no objection has ever been raised under section 5
of the Bihar Municipal Act, 2007 to the draft notification under sections 3 and 4
of the Bihar Municipal Act, 2007 and hence the government was quite justified
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in preparing and publishing notification under section 6 of the Bihar Municipal
Act, 2007 specially when the people of the area had themselves approached the
authorities for constitution of Nagar Parishad.
25. Leaned counsel for the said interveners also claimed that census
report of 2001 shows 75 per cent of the entire population to be non-agriculturists
in support of which he produced Annexure-I/3 to his supplementary affidavit
dated 21.04.2010. He further claimed that Benipur Nagar Parishad had Sub-
Treasury, Jail, Nationalized Banks, Indian Oil Retail Outlet, Sub-Registry
Office, Bahera Police Station, Five kilometers of uniform market on both sides
of the road, Bar Council, Courts of Law, Market Hub, High Schools, Colleges,
Hospitals, Telephone Services, Small Scale Industries, Public Stadium,
Kerosene Depot and several offices of companies, etc. He further averred that
the term „non-agriculturists‟ is defined in Clause 90 of the Anudesh Pustika
issued by Central Government for the purposes of census. Hence, he argued that
the acts of the authorities concerned were quite legal and justified.
26. Learned counsel for the applicant of I.A. No.6339 of 2010, who has
been impleaded as respondent no.11, also contested the claim of the petitioners
on the ground that the population chart prepared by the authorities concerned
clearly showed that more than 75 per cent of the population was based on non-
agricultural activities and there was a presumption of correctness to the
government document unless contrary is proved. Hence, the provision of section
3(iii) of the Bihar Municipal Act, 2007 has been fully satisfied and there is
nothing to disprove the documents of the authorities. He further claimed that the
transition of the area from Gram Panchayat to Nagar Parishad was as per the
resolution of general people of the area including the petitioners, whereafter
some of the petitioners themselves fought election of Nagar Parishad and lost,
due to which only they filed the instant writ petition. He further relied upon a
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decision of this court in case of Raghunath Pandey and others vs. The State
of Bihar and others, reported in 1982 P.L.J.R. 49 and averred that in any
view of the matter petitioners have not come with clean hand and their writ
petition is fit to be dismissed.
27. Considering the aforesaid arguments raised by learned counsel for
the respective parties as well as the materials brought on record, it is quite
apparent that three points are involved, which are to be considered and decided
in both these cases. They are as follows:-
(A) Whether some of the petitioners themselves having contested the
election of Benipur Nagar Parishad, are precluded from raising
any objection to the formation of the Nagar Parishad?
(B) What should be the basis for fixing the population of the area
concerned, including urban population and rural population, for
creation of Nagar Parishad?
(C) Whether the procedures adopted by the authorities were in
accordance with the provisions of law prescribed in the Bihar
Municipal Act, 2007?
28. So far Point (A) is concerned, it is not in dispute that a couple of
petitioners of the first writ petition had contested the election of Benipur Nagar
Parishad held in the year 2010, but admittedly the remaining petitioners of the
first writ petition (C.W.J.C. No.1297 of 2010) as well as the sole petitioner of
the second writ petition (C.W.J.C. No.4039 of 2010) had not contested the
election of Benipur Nagar Parishad nor had taken part in any of the activities of
the authorities for creation of Benipur Nagar Parishad. In the said
circumstances, the aforesaid objection raised by the respondents is not
sustainable in law and it cannot be legally held that these two writ petitions are
not maintainable due to the aforesaid facts.
29. So far Point (B) is concerned, the term „population‟ is defined
under Section 2, sub-section 74 of the Bihar Municipal Act 2007 which provides
that “population means the population as ascertained at the last preceding census
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of which the relevant figures have been published”. Same definition finds place
in Article 243(f) and Article 243-P(g) of the Constitution of India. It is an
admitted fact that the last preceding census was held in the year 2001 and since
then neither any population had been ascertained in accordance with law nor the
relevant figures have been published. The respondents have also completely
failed to produce any fresh census or publication before this court.
30. The respondents have relied upon a couple of reports of
authorities regarding population. One is report dated 24.10.2008 (Annexure-C to
I.A.No.2666 of 2010) submitted by Sub-Divisional Officer, Benipur to the
District Magistrate, Darbhanga holding that the population of the Nagar
Parishad would be 62,203 out of which 48,000 people were involved in non-
agricultural activities. The other report is of the District Magistrate, Darbhanga
on the form (Annexure-3 at page 18 of the writ petition) which was annexed to
letter dated 23.10.2008 (Annexure-3) issued by the Deputy Secretary-cum-
Director Urban Development and Housing Department, Govt. of Bihar to the
District Magistrate, Darbhanga which showed that the total population of the
proposed Nagar Parishad was 2,03,000 out of which 48,000 were dependent
upon non-agricultural occupation and it was assumed to be more than 75 per
cent of the total population. No material at all has been produced by the
respondents which supported the said reports. The said reports are self
contradictory also as 48,000 out of 2,03,000 can never be 75 per cent rather it
will be less than 24 per cent which is not sufficient for creation of any Nagar
Parishad as per the provisions of Sections 3 and 7 of the Bihar Municipal Act,
2007.
31. The population of the area of the proposed Nagar Parishad is
admittedly about 2,00,000 as is also apparent from the population of 24 villages
included in the Notification no. 1691 dated 20.05.2009 (Annexure-4) issued by
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the Urban Development and Housing Department under the provision of Section
6 of the Bihar Municipal Act, 2007. Furthermore, there is no report showing that
non-agricultural population of the entire area was about 1,50,000 which would
be 75 per cent of the entire population. In the said circumstances, no reliance
can be placed upon the said reports and mere enumeration of Government and
business activities cannot legally satisfy the specific provisions of law, which
requires a published census. Furthermore the work of fresh census is in progress
and is going to be completed within a year and hence there was no occasion for
creation of the new Nagar Parishad in such a haste-post-haste manner.
32. In any view of the matter, there is no provision either in the
Constitution of India or in the Bihar Municipal Act, 2007 or even in the Bihar
Panchayat Raj Act, 2006 or in any other law for attaching any importance to
such reports, nor such reports can legally be equated with ascertainment of
population in census duly published in accordance with law. Thus, it is quite
apparent that for the purposes of any action taken by the authorities concerned
under the provisions of the Bihar Municipal Act, 2007, the basis for fixing the
population of the area concerned, including urban population and rural
population would be the last preceding census of 2001 until the population is
ascertained afresh in a duly held census by the authorities concerned and the
relevant figures are published in accordance with law.
33. So far Point (C) is concerned it involves the entire scheme of the
system of Local Self Government introduced in the Constitution by 73rd and
74th Amendment Acts of 1992 which came into effect from 24.04.1993 and
01.06.1993 respectively. By the said Amendments Part IX and Part IX-A were
added in the Constitution of India dealing with Panchayats and Municipalities to
be established as recognized systems of Local Self-Government. Articles 243 to
243-O under Part IX of the Constitution provides various features, aspects and
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intrinsicalities of Panchayats, whereas Articles 243-P to 243-ZG under Part-IX-
A of the Constitution provides various features, aspects and intrinsicalities of
Municipalities.
34. Article 243-B of the Constitution of India provides that there
shall be constituted in every State Panchayat at the village, intermediate and
District levels in accordance with the provisions of Part-IX of the Constitution.
However, in the Bihar Panchayat Raj Act, 2006, the Panchayats at village level,
intermediate level and District level were termed as “Gram Panchayat,
Panchayat Samiti and Zila Parishad” respectively as per Section 11 (Chapter-
III), Section 34 (Chapter-IV) and Section 62 (Chapter-V) of the said Act. Gram
Panchayat has to be constituted of a village or group of contiguous villages or
part thereof with a population within a territory as nearly as 7,000. Panchayat
Samiti has to be constituted for every Block and its jurisdiction has to be over
all the villages in that Block. Zila Parishad is to have jurisdiction over the entire
District excluding such portion of the District which is included in or under the
authority of Municipality or cantonment Board constituted under any law.
35. Article 243-Q of the Constitution of India provides that there shall
be constituted in every State, Municipalities at three levels, namely Nagar
Panchayat, Municipal Council (Nagar Parishad) and Municipal Corporation in
accordance with the provisions of Part-IX-A of the Constitution. However, in
the Bihar Municipal Act, 2007, classification of Municipal areas has been
detailed in Sections 3 and 7 thereof, according to which Nagar Panchayat is the
smallest one concerning an area in transition from a rural area to an urban area
(small town) having a population between 12,000 and 40,000. A Municipal
Council which is also called Nagar Parishad is a medium urban area having a
population between 40,000 and 2,00,000. Municipal Corporation consists of a
larger urban area having a population of 2,00,000 or more.
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36. In the aforesaid facts and circumstances, it is quite apparent that
Constitution of India provides six tiers of Local Self-Government mentioned
above out of which the first three are basically rural in nature, whereas the last
three are basically urban in nature. The factor which determines the rural area
and urban area is the percentage of the population dependant upon non-
agricultural activities which is quite apparent from the Proviso to Section 3 of
the Bihar Municipal Act, 2007 which provided that “non-agricultural population
in all cases shall be 75 per cent or more” and hence only on that basis the State
Government has to determine as to whether a specific area would come under
the purview of Panchayats or would come under the purview of Municipalities.
37. From the entire scheme as provided in Part-IX and Part-IX-A of the
Constitution of India followed by the Bihar Panchayat Raj Act, 2006 and Bihar
Municipal Act, 2007, a systematic upgradation of the area from one level to
another has been provided, i.e. from Panchayat to Nagar Panchayat which is
with respect to the area in transition from a rural area to an urban area and only
thereafter if the required population and percentage of non-agricultural
population are fulfilled, the area can be developed into a Municipal Council
(Nagar Parishad). In the said circumstances, there is no provision to support the
act of the Government for declaring an area to be Municipal Council (Nagar
Parishad) directly from Gram Panchayat all of a sudden in one go without the
area having ever been constituted as a Nagar Panchayat.
38. Furthermore, if the Government decides to create a Municipality by
amalgamating some Gram Panchayats it has to declare its intention after
considering various parameters provided in Section 3 of the Act and to obtain
the consent of the Gram Panchayats concerned and only then it can make draft
publication of notification under Section 4 of the Bihar Municipal Act, 2007.
The said notification has to be published in the official Gazette and in at least
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two leading newspapers and a copy of the notification has to be pasted at a
conspicuous place in the office of the Collector of the District or in the office of
the Municipality and also to give information thereof by beat of drum
throughout the local area concerned. Section 5 of the Bihar Municipal Act, 2007
provides opportunities to the inhabitants to submit their objection in writing to
the State Government within one month from the date of draft publication of
notification under Section 4 of the Bihar Municipal Act, 2007 and the State
Government is to take such objection into consideration and only thereafter final
publication of notification under Section 6 of the Act can be made constituting a
Municipal area under the Act.
39. In the instant case, although notifications under Sections 4 and 6 of
the Bihar Municipal Act, 2007 have been produced by the authorities concerned,
but there is no material at all to show that consent of the Gram Panchayats
concerned had ever been sought to be obtained by the authorities concerned
before publication of the draft notification under Section 4 of the Bihar
Municipal Act, 2007. Furthermore, no document has been produced by the
authorities concerned that the provision of Section 4 and its sub-section has been
followed as there is nothing to show that draft notification had been published in
two newspapers or it had been pasted at the required places or any beating of
drum was made. Although one of the respondents had claimed that some
objections had been received under Section 5 of the Act in response to the draft
notification but that has been denied and no admitted or reliable document has
been produced either to show that any objection was filed or was ever decided
by the authorities concerned. However, the entire circumstances of the case,
including the letter of Secretary, Urban Development and Housing Department,
Govt. of Bihar to the District Magistrate, Darbhanga dated 23.10.2008
(Annexure-3) showed that the notifications were issued merely on the wishes of
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the concerned Minister for reasons best known to him. In the aforesaid facts and
circumstances, it is quite apparent that the draft notification under Section 4 of
the Bihar Municipal Act, 2007 as well as the final notification under Section 6
of the Act with respect to constitution of Municipal area have not been
published in accordance with law after fulfilling the statutory requirements.
40. So far the case laws relied upon by learned counsel for the
respondents are concerned, the decision of a division bench of this court in case
of Manoj Rai and others (supra) is with respect to transition of a Panchayat to a
Nagar Panchayat in which the authorities had been able to prove that 77 per cent
of the total population were non-agriculturist. This is not the case in the instant
matter. In case of Shree Krishna Prasad Singh & others and other analogous
cases (supra), the Full Bench of this court had considered the various provisions
of the Bihar Municipal (Amendment) Ordinance, 1978 and the principle
involved therein in the facts of that case, but in the instant case the facts and the
principle are completely different and are governed by the specific provisions of
the Bihar Municipal Act, 2007 which has been enacted in view of the specific
provision of Part-IX-A of the Constitution of India. In case of Raghunath
Pandey and others along with other analogous cases (supra), a division bench of
this court considered the provisions of the Bihar Municipal Corporation Act,
1978 which was with regard to alteration of existing boundaries for the
formation of a Municipal Corporation out of existing Municipalities. In the said
provision the question of percentage of urban population had not been made as
it has been specifically made in the Bihar Municipal Act, 2007 which is
applicable to the instant case. Similar is the matter in the decision of the Apex
court in case of Bhaskar Textile Mills (supra) as well as in the decision of this
court in case of Sheonath Rai and others (supra). In the aforesaid facts and
circumstances, the above mentioned decisions which have been relied by
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learned counsel for the respondents are not applicable to the facts and
circumstances of this case.
41. So far the various decisions of the Apex Court in case of Tata
Cellular (supra), in case of Anugrah Narain Singh and others (supra), in case of
Balco Employees‟ Union (Regd.) (supra) and in case of Damoh Panna Sagar
Rural Regional Bank and another (supra) are concerned, they are all referred by
learned counsel for the respondents on the scope and jurisdiction of the High
Court with respect to judicial review of the decisions made by the authorities
concerned. No doubt, this court cannot examine the relative merits of different
policies and cannot strike out a policy of the Government merely on the ground
that another policy would have been fairer and better, but when the
decision/action of the Government is contrary to the statutory provision and the
Constitution and is vitiated by arbitrariness, unfairness, illegality, irrationality,
this court is duty bound to pass appropriate orders in that regard as has been
provided in the aforesaid decisions of the Supreme Court. In the said
circumstances, the aforesaid decisions relied upon by learned counsel for the
respondents, in fact, support the claim of the petitioners, who are challenging
the decision making process of the authorities in the aforesaid matter which was
clearly against the specific provision of the Bihar Municipal Act, 2007 and the
Constitution of India.
42. Considering the entire facts and circumstances of the case as well
as the specific provisions of law and the case laws, this court has no option but
to quash draft notification dated 20.01.2009 (Annexure-2) as well as final
notification dated 20.05.2009 (Annexure-4) issued by the authorities concerned
under the provisions of Sections 4 and 6 of the Bihar Municipal Act, 2007
constituting Benipur Nagar Parishad (Municipal Council) and also consequential
steps and directions of the authorities concerned including letters dated
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17.12.2009 and 16.12.2009 (Annexures 5 and 6). Accordingly, they are quashed
and these writ petitions are allowed. The Gram Panchayats which were existing
from before would continue to operate as per the provisions of the Panchayat
Raj Act, 2006 as if their areas were not altered and amended.
43. However, if the next census is duly published and fulfils the
requirement and criterion as fixed by law, the State Government will be at
liberty to take fresh steps for creation of Nagar Panchayat/Nagar Parishad after
following the procedure prescribed in the relevant enactments and the
observations made above.
(S.N. Hussain, J.)
PATNA HIGH COURT
Dated, 12th October, 2010.
N.A.F.R.
Sunil/ Harish