Awadh Kishor Roy vs The State Of Bihar
2021 Latest Caselaw 4781 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA

                      Civil Writ Jurisdiction Case No.9878 of 2021

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1. Awadh Kishor Roy Son of Late Ram Anandi Ray Resident of Village-P.O.

and P.S. Baruraj, District-Muzaffarpur, Presently Mukhiya of Gram Panchayat Raj, Baruraj East, Block-Motipur, District-Muzaffarpur.

2. Gopal Sah Son of Late Mitilal Sah Resident of Village-P.O. and P.S. Baruraj, District-Muzaffarpur, Presently Mukhiya of Gram Panchayat Raj, Baruraj West, Block-Motipur, District-Muzaffarpur.

3. Javed Ahmad Son of Late Abdul Latif, Resident of Village-Mehandi Nagar, Bankat, P.O. and P.S. Baruraj, District-Muzaffarpur.

4. Ganesh Ram Son of Late Dhanpat Ram, Resident of Village-Baruraj, Tole-

Kotiyan, P.O. and P.S. Baruraj, District-Muzaffarpur.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna.

3. The Joint Secretary, Urban Development and Housing Department, Government of Bihar, Patna.

4. The Divisional Commissioner, Tirhut Division, Muzaffarpur

5. The District Magistrate, Muzaffarpur District-Muzaffarpur.

6. The Block Development Officer, Motipur, District-Muzaffarpur.

7. The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel, Patna through the State Election Commissioner,

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s    :      Mr.Shashi Bhushan Kumar Manglam
     For the State           :      Mr.Rajiv Roy ( Gp1 )
     For the S.E.C.          :      Mr. Amit Srivastava, Sr. Adv.
                                    Mr. Sanjeev Nikeseh

====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

JUDGMENT AND ORDER C.A.V.

Date : 24-09-2021 Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

The petitioners have filed the present writ application

for quashing the Notification No. 616, dated 18.02.2021, as

contained in Annexure P-5, issued under the signature of

respondent no. 3, the Joint Secretary, Urban Development and

Housing Department, Government of Bihar, whereby the State

Government has constituted Baruraj Nagar Panchayat with an area

and population of the Gram Panchayat Raj Baruraj East and Gram

Panchayat Raj Baruraj West.

2. The petitioner nos. 1 and 2 are the Mukhiyas of Gram

Panchayat Raj Baruraj East and Gram Panchayat Raj Baruraj West

respectively; whereas the petitioner nos. 3 and 4 are the social

workers having interest in the Gram Panchayats.

3. The relevant facts brought on record by the

petitioners, in brief, is that the Gram Panchayat Raj Baruraj was in

existence since pre-independence and subsequently was divided

into two Gram Panchayats, namely, Gram Panchayat Raj Baruraj

East and Gram Panchayat Raj Baruraj West, in the year 1978. The

last Census in the country was conducted in the year 2011 and for

the purpose of population under the Municipal Act, the published

figure of 2011 Census only is available and according to the figure

of 2011 Census, the total population of the Gram Panchayat Raj

Baruraj East and Gram Panchayat Raj Baruraj West is 27064 Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

respectively and total workers in each of the Gram Panchayat Raj

Baruraj East and Gram Panchayat Raj Baruraj West is 7901. The

total main workers in each of the two Gram Panchayats, i.e. Gram

Panchayat Raj Baruraj East and Gram Panchayat Raj Baruraj West,

is 5611.

4. Section 3 (1) of the Bihar Municipal Act, 2007

(hereinafter referred to as the '2007 Act'), confers powers upon the

State Government for declaring its intention to constitute

municipal area and it provides that the State Government may after

making such enquiry as it deem fit and having regard to the

population of any urban area and other factors mentioned under

Section 3 of the 2007 Act, declares its intention to specify such

area to be a larger urban area or medium urban area or a

transitional area, provided that no such declaration shall be made

unless the population, in the case of a transitional areas, i.e. small

towns, is 12000 and more but not more than 40000, provided

further that the non-agricultural population in such area should be

75% or more.

5. Accordingly, Section 3 of the 2007 Act provides for

three classes of municipality, depending upon the population and

other factors, the first is larger urban area, the second is the

medium urban area and the third is the transitional area, called the Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

Nagar Panchayat. The present case is concerned with the

transitional area, called as Nagar Panchayat. Proviso to Section 3

(1) was amended by Bihar Municipal Amendment Ordinance,

2020 (Bihar Ordinance 2 of 2020), in which it has been provided

that the marginal workers shall be below 50 % of the total

population of workers in such area in all cases. The word

'population' has been defined under Section 2 (74) of the 2007

Act, according to which "population" means the population as

ascertained at the last preceding Census of which the relevant

figures have been published.

6. The State Government published a draft notification,

vide Notification No. 4250, dated 26.12.2020, whereby the State

Government notified its intention to constitute Baruraj Nagar

Panchayat with an area and population of Gram Panchayat Raj

Baruraj East and Gram Panchayat Raj Baruraj West and objections

were invited from the affected persons, as contemplated under

Section 5 of the 2007 Act. The objections were filed by the

residents of the Gram Panchayat Raj Baruraj East and Gram

Panchayat Raj Baruraj West, stating therein that 85 % of the

population of the said two Gram Panchayats is still depended upon

agriculture for the purposes of their survival and 70 % population

of the 85 % are still surviving below poverty line, whose houses Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

have been provided under Indira Awas Yojana or Pradhanmantri

Awas Yojana.

7. It has further been stated that the recommendation of

the respondent no. 5 is only a table survey and the same is far

away from the real truth on the spot. The said objections were filed

before respondent no. 4. The further contention of the petitioners is

that without any local enquiry, as contemplated under the 2007

Act, and without consulting the Gram Panchayats before the

recommendation, as required under Section 11 (1) of the Bihar

Panchayat Raj Act, 2006 (herein afer referred to as the '2006

Act'), the State has come out with the impugned notification, dated

18.02.2021, whereby Baruraj Nagar Panchayat has been

constituted with an area and population of Gram Panchayat Raj

Baruraj East and Gram Panchayat Raj Baruraj West.

8. According to the petitioners, the total number of

agricultural workers, residing in the two Gram Panchayats is more

than 50 % of the total workers residing therein, as such, the State

Government cannot declare the two Gram Panchayats as an urban

area and on this count alone, the impugned notification cannot

sustain. The petitioners further contend that the impugned

notification issued by the State Government does not reflect the

consideration of the objections raised by the petitioners/public at Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

large, pursuant to the draft notification and on this count also, the

impugned notification cannot sustain.

9. Two set of counter affidavits have been filed on behalf

of the State, the first is by respondent nos. 4 to 6, and the second is

by respondent nos. 2 and 3.

10. In the counter affidavit, filed by respondent nos. 4 to

6, it has been stated that the Secretary, Urban Development and

Housing Department, Government of Bihar, directed all the

District Magistrates of Bihar to make proposal for constitution of

the new urban local bodies and upgradation of old urban local

bodies, vide letter no. 1713, dated 14.05.2020 (Annexure R-4/B)

and in pursuance thereof, the District Magistrate, Muzaffarpur,

directed all the Block Development Officers and the Circle

Officers of the district of Muzaffarpur to make available the

proposal for constitution of new town local bodies in the district of

Muzaffarpur, through the concerned Sub Divisional Officer

positively by 20.05.2020, vide his letter no. 681, dated 16.05.2020.

In compliance of the aforesaid direction of the District Magistrate,

Muzaffarpur, the Block Development Officer and the Circle

Officer, Motipur, with the help of the officers of the block and the

circle office, Motipur, prepared and filled up the required format

(Prapatra) for declaration of Nagar Panchayat, under Section 6 of Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

the 2007 Act, having required information along with claim and

objection report, signed by the Block Panchayat Raj Officer,

Executive Officer and the Circle Officer, Motipur and the same

was sent to the Sub Divisional Officer, West, Muzaffarpur, vide

letter no. 1150, dated 20.05.2020 and letter no. 219, dated

30.01.2021. It is further stated that after considering the objections

of the residents of the proposed Nagar Panchayat and after

complying the relevant provisions of the 2007 Act, the State

Government has issued the impugned notification.

11. In the counter affidavit filed by respondent nos. 2

and 3, it has been stated that after amendment of second proviso to

Section 3 (1) of the 2007 Act by Bihar Municipal (Amendment)

Ordinance, 2020, on 12.05.2020, the District Magistrate,

Muzaffarpur, sought proposal from the Block Development

Officers and the Circle Officers within the district of Muzaffarpur

and in pursuance thereof, a joint proposal in prescribed format

(Prapatra) was provided by the Block Development Officer and the

Circle Officer, Motipur, with regard to Gram Panchayat Raj

Baruraj East and Gram Panchayat Raj Baruraj West and the chart

attached with the proposal clearly shows that the main cultivator

workers and marginal cultivator workers is 26.71 % of the total

population of workers.

Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

12. In the meanwhile, the Bihar Municipal

(Amendment) Act, 2020 has been notified on 10.08.2020.

Accordingly, vide letter no. 4129, dated 13.12.2020, the Secretary,

Urban Development and Housing Department, directed all the

District Magistrates to send the amended proposal for constitution

of new urban local bodies and upgradation of old urban local

bodies, as during the review of the proposal sent from all the

districts, it was thought appropriate to issue guidelines containing

various points and especially need for constitution of Committee

under the chairmanship of the District Magistrate to review the

amended proposal (Annexure R-2/H). The District Magistrate,

Muzaffarpur, vide letter no. 2108, dated 20.12.2020, forwarded the

proposal relating to upgradation of the Nagar Panchayat within its

district, including Baruraj Nagar Panchayat. Accordingly, the draft

notification no. 4250, dated 26.12.2020, was issued by the State

Government, in exercise of power under Sections 3 (1), 4, 5, 6 and

8 of the 2007 Act, declaring its intention to constitute Baruraj

Nagar Panchayat, for which objections/suggestions were invited to

be considered under Section 5 of the 2007 Act.

13. In consequence thereof, the local authorities received

objections/suggestions with regard to the constitution of Baruraj

Nagar Panchayat and the same were dealt with by the committee Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

comprising the Sub Divisional Officer, West Muzaffarpur, the

Deputy Collector land Reforms, West Muzaffarpur, and the

Additional Sub Divisional Officer, West Muzaffarpur, which was

followed by the report, vide letter no. 222, dated 01.02.2021 by the

Sub Divisional Officer, West Muzaffarpur to the District General

Section, Muzaffarpur.

14. After receipt of the report of the Sub Divisional

Officer, West Muzaffarpur, the committee comprising, amongst

other, the Additional Collector, Muzaffarpur and the District

Panchayat Raj Officer, Muzaffarpur, reviewed the said report and

three objections raised with regard to Baruraj Nagar Panchayat

were dealt with and were rejected. The District Magistrate,

Muzaffarpur, vide letter no. 208, dated 03.02.2021, forwarded the

proposals/records of the Block level and Sub Divisional level

Committees, along with the proceedings of the District Level

Committee. Thereafter, the Department, after thorough

consideration of the objections received and the response/report

submitted by the local authorities, having been satisfied with the

reports, issued the impugned notification.

15. Mr. S. B. K. Manglam, learned Counsel for the

petitioners, argued that Baruraj Nagar Panchayat has been

constituted by upgrading Gram Panchayat Raj Baruraj East and Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

Gram Panchayat Raj Baruraj West, in complete violation of Article

242 Q (2) of the Constitution of India read with Sections 3 (1), 4, 5

and 6 of the 2007 Act.

16. Learned Counsel for the petitioners further submits

that the total main workers residing in the two Gram Panchayats is

5611 each, as against the total number of workers residing therein

to be 7901 in each Gram Panchayats and the total main workers in

both the Gram Panchayats is much more than 50 % of the total

workers. Despite the fact that the total population of main

cultivator workers and marginal cultivator workers is more than 50

% of the total population of workers in the area, the respondent-

State has issued the impugned notification, constituting Baruraj

Nagar Panchayat, in violation of Section 3 (1) of the Bihar

Municipal (Amendment) Ordinance, 2020 and that too, without

consideration of all objections raised by the general

public/residents. He further submits that from perusal of the

impugned notification, it would be evident that no reasons have

been assigned for rejecting the objections filed by the

petitioners/residents and as such, it cannot be supplemented by any

affidavit filed subsequently by the respondents. Reliance in this

regard has been placed, in the case of Mohinder Singh Gill and Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

Another v. The Chief Election Commissioner, New Delhi and

Others (AIR 1978 SC 851).

17. Learned Counsel for the petitioners further submits

that it is the statutory obligation upon the State Government to

consider the objections, but instead of the objections to be

considered and decided by the State Government, the State

Government called for a report from the District Magistrate and

other local authorities and acted upon the same without application

of independent mind. He further submits that it is a trite law that if

a Statute vests certain power to the authority in a particular

manner, then the said authority has to exercise it only in the

manner provided in the Statute itself and not otherwise. In support

of his argument, he has placed reliance on Commissioner of

Income Tax, Mumbai v. Anjum M. H. Ghaswala and Others,

reported in (2002) 1 SCC 633.

18. Learned Counsel for the petitioners next submits that

the impugned notification is bad on account of non-compliance of

Section 11 of the 2006 Act, inasmuch as before declaring the two

Gram Panchayats as the Nagar Panchayat, the said Gram

Panchayats have not been consulted, as mandatorily required

under the 2006 Act.

Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

19. Learned Counsel for the petitioners further submits

that the Block Level Committee and the District Level Committee,

constituted for consideration of suggestion/recommendation,

prepared and submitted a table report without holding any actual

survey of the area, as such, based upon the said reports, which is

unworthy of reliance having incorrect figure, the constitution of

Baruraj Nagar Panchayat would become unsustainable in law as

well as on facts.

20. Learned Counsel for the petitioners referred to

Annexure-P/2 to the writ application to contend that from perusal

of the 2011 Census, regarding the Gram Panchayat Raj Baruraj

East and Gram Panchayat Raj Baruraj West, it would be evident

that total population of the two Gram Panchayats is 27064 each,

which comes to 54128 and likewise the total population of the

workers of the two Gram Panchayats is 7901 each, and if added,

becomes 15802 and the total population of the main workers is

11222 of the two Gram Panchayats, which have been included in

the newly created Baruraj Nagar Panchayat. Thus, the total

population of main cultivator workers and marginal cultivator

workers will come to more than 50 % of the total population of

workers in the two Gram Panchayats, which would also be

supported by the format (Prapatra) prepared as per the joint report Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

submitted by the Block Development Officer and the Circle

Officer, Motipur, annexed in the counter affidavit filed by

respondent nos. 4 to 6 and at page 57 thereof, at serial nos. 8, 9

and 10, particularly at serial no. 10, the total population of the

main cultivator workers and marginal cultivator workers is 50 %

of the total population of workers, which is contrary to the

provisions of the 2007 Act inasmuch as it should be less than 50

%.

21. Learned Counsel for the petitioners further submits

that the two Gram Panchayats are purely rural areas and there is

small hat (market) of not more than 50 shops near the Police

Station and for that too, the two Gram Panchayats cannot be

declared as Nagar Panchayat. He relies on the case of Dr. Anand

Kumar v. The State of Bihar and Others, reported in 2011 (2)

PLJR 423.

22. On the other hand, Mr. Rajiv Roy, learned Counsel

appearing on behalf of the State, submits that from perusal of the

draft notification (Annexure P-3 to the writ application), it is clear

that the objectors were instructed to submit their objections

through the Divisional Commissioner/District Magistrate, which

would be considered under Section 5 of the 2007 Act and in

pursuance thereof, the objections were filed through the Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

Commissioner, Tirhut Division, Muzaffarpur. He next submits that

in response to the letter no. 681, dated 16.05.2020 of the District

Magistrate, Muzaffarpur, a joint proposal, vide letter no. 1150,

dated 20.05.2020, in prescribed format (prapatra) was provided by

the Block Development Officer and the Circle Officer, Motipur,

with regard to Gram Panchayat Raj Baruraj East and Gram

Panchayat Raj Baruraj West and the chart attached with the said

proposal clearly shows that the population of main cultivator

workers and the marginal cultivator workers to the total population

of workers is 26.71 %.

23. He further submits that after the enactment of Bihar

Municipal (Amendment) Act, 2020, notified on 10.08.2020, the

District Magistrate, Muzaffarpur, vide letter no. 2108, dated

20.12.2020 forwarded the proposal relating to upgradation of the

Nagar Panchayat within its district, which included Baruraj Nagar

Panchayat. Thereafter, the Department came out with the draft

notification no. 4250, dated 26.12.2020, declaring its intention to

constitute Baruraj Nagar Panchayat and objections/suggestions

were invited. He further submits that the objections/suggestions

were submitted through the local authorities, which were duly

considered factually by the Sub-Divisional Level Committee

comprising Sub Divisional Officer, West Muzaffarpur and the Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

Deputy Collector land Reforms, West Muzaffarpur, and after

examining the facts and figure thoroughly, report/suggestion was

forwarded by letter no. 222, dated 01.02.2021 by the Sub

Divisional Officer, West Muzaffarpur to the District General

Section, Muzaffarpur.

24. He next submits that the committee, comprising the

Additional Collector, Muzaffarpur and the District Panchayat Raj

Officer, Muzaffarpur, reviewed the report of the Sub-Divisional

Level Committee. The District Magistrate, Muzaffarpur, vide letter

no. 208, dated 03.02.2021, forwarded the relevant records of the

Block Level Committee and Sub Divisional Level Committee, as

well as proceedings of the District Level Committee to the

Principal Secretary, Urban Development and Housing Department,

Government of Bihar and the State, after thorough consideration of

the objections received and the response/report submitted by the

committees, constituted at different level (Block Level, Sub

Divisional Level and District Level), and having been satisfied

with the report, after consideration upon the objections, issued the

impugned notification. He placed Annexure R-2/F-3, the data of

2011 Census, in order to show that in the revenue village Baruraj,

the total population of the workers, as per 2011 Census, is 7901,

and the percentage of the main cultivator workers (1781) and the Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

marginal cultivator workers (329) to the total population of

workers comes to 26.71 %, which is below 50 %. He relies upon

the judgment of this Court, in the case of Dinesh Kumar

Himanshu and Others v. The State of Bihar and Others,

reported in 2014 (2) PLJR 640, in support of his argument.

25. Mr. Amit Srivastava, learned Senior Counsel

appearing on behalf of the Bihar State Election Commission,

submits that the contention of the petitioners that the population of

workers in Gram Panchayat Raj Baruraj East and Gram Panchayat

Raj Baruraj West is 7901 + 7901 (total 15802) and the total main

cultivator workers is 5611 + 5611 (total 11222) out of the total

population of the two Gram Panchayats, 27064 + 27064 (total

54128), is totally misconceived inasmuch as, according to learned

Senior Counsel, the two figures mentioned above cannot be added

because the village census code of Gram Panchayat Raj Baruraj

East and Gram Panchayat Raj Baruraj West is same, i.e. 228164,

and the population mentioned in Annexure P-2 reflects the total

population of village Baruraj, including the total workers and total

main cultivator workers and the same are not required to be added

again as the population of Gram Panchayat Raj Baruraj East and

Gram Panchayat Raj Baruraj West inasmuch as the total

population of village Baruraj has been given in Annexure P-2. By Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

way of illustration, he referred to the village code of Gram

Panchayat Raj Bariyarpur East, Gram Panchayat Raj Bariyarpur

West, Gram Panchayat Raj Bariyarpur North and Gram Panchayat

Raj Bariyarpur South, and submits that village census code of all

the four Gram Panchayats are same and the population mentioned

is also the same.

26. I have heard learned Counsel for the parties and have

carefully gone through the materials available on record.

27. The main contention of learned Counsel for the

petitioners is that the population of the main cultivator workers

and the marginal cultivator workers of the Gram Panchayat Raj

Baruraj East and Gram Panchayat Raj Baruraj West is not less than

50 % of the total population of workers in the area, as per 2011

Census and further the objections filed by the petitioners and

others were not considered by the State Government inasmuch as

no reason for rejection of the objections has been assigned in the

impugned notification.

28. From the format (Prapatra) submitted by the local

authorities, based upon the 2011 Census and Annexure R-2/F-3 to

the counter affidavit filed by respondent nos. 2 and 3, which is the

census data from the District Census Handbook of 2011, it appears

that as per the 2011 Census, the population of total workers is Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

7901, out of which the population of main cultivator workers is

1781 and the population of marginal cultivator workers is 329, as

such the percentage of main cultivator workers and the marginal

cultivator workers to the total population of workers comes to

26.71 %, which is less than 50 %, as required under the amended

proviso to Section 3 (1) of the 2007 Act.

29. It is further evident from the records that before

publication of draft notification, a proposal from the District

Magistrate, based upon the various parameters, including the

population, was sought by the State Government and upon being

satisfied about the factual data furnished by the District

Magistrate, through the local authorities, the State Government

published the draft notification, dated 26.12.2020, in exercise of its

power under Section 3 of the 2007 Act, declaring its intention to

constitute Baruraj Nagar Panchayat.

30. The objections, which were filed, were considered at

the Block Level, Sub Divisional Level and District Level and from

perusal of the reports of the Committees, it appears that the

Committees, at different level, have factually examined the

relevant data having regard to the population, density of

population, non-agricultural activities in such area and such other

factors, as per the law and came to the finding that in Baruraj, Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

Police Station, petrol pump, gas agency and saw mill are situated

and further three State Highways, i.e. Motipur-Sahebganj

Highway, Motipur-Saraiya Highway and Motipur-Deoriya

Highway, are passing through it.

31. The Committes have also found that in village

Baruraj, only 26.71 % population are involved in the agricultural

work and accordingly the contention raised by the objectors that

85 % of the population is engaged in the agricultural work, has

been rejected. Accordingly, the Committees, upon thorough

consideration of the objections, suggested that keeping in view all

the economic activities and urbanization and in order to prevent

the uncontrolled development, the area may be upgraded as Nagar

Panchayat in order to have the proper development of the area and

to increase public utility facilities. As such, the contention of the

petitioners that population of the main cultivator workers and the

marginal cultivator workers is more than 50 % of the total

population of workers is not supported by the 2011 Census and is,

accordingly, rejected.

32. From the facts and figures provided by the

Committees, at different level, it appears to this Court that the area

in question is developing in terms of various economic and other

activities and the conversion of the area from Gram Panchayat to Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

Nagar Panchayat will ensure the sustained development of the area

and will improve the standard of living of the local population and

the benefits that will flow to a Nagar Panchayat will be greater

than that of the benefits available to a Gram Panchayat. Therefore,

in the opinion of this Court, the decision to upgrade the Gram

Panchayats in question to Nagar Panchayat will be in larger public

interest.

33. Insofar as the contention of learned Counsel for the

petitioners that the objections filed by the petitioners and others

have not been considered by the State Government before issuance

of the impugned notification, dated 18.02.2021, constituting

Baruraj Nagar Panchayat and further from perusal of the impugned

notification, it is apparent that no reason has been assigned for

rejecting the objections of the petitioners and others, it appears

from the materials brought on record by the State respondents that

objections filed by the petitioners and others have been duly

verified factually by the Committees constituted at the direction of

the State Government at different levels, i.e. Block Level, Sub

Divisional Level and District Level and a detailed report on factual

aspect including the population of the main workers were made

available to the State Government by its officials. The objections

filed by the petitioners were already available with the State Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

Government and the State Government having been satisfied with

the report and after consideration upon the objections, issued the

impugned notification. The consideration of the objections filed by

the petitioners by the State Government is very much evident from

the impugned notification itself.

34. From perusal of Section 6 of the 2007 Act, it appears

that the State Government is required to take into account the

objection(s) filed by the inhabitant(s) and no duty is cast upon the

State Government under Section 6 of the 2007 Act to dispose the

objection/suggestion after recording reason thereof. There is no

such provision under the Statute, which required the State

Government to dispose the objections giving reasons thereof, as

such, the same cannot be construed by interpreting Section 6 of the

2007 Act. The impugned notification, as pointed out herein above,

clearly records that the State Government took into consideration

the objections and in the counter affidavits filed by the State, it has

specifically been mentioned that the objections/suggestions were

considered by the State Government before issuing the notification

under Section 6 of the 2007 Act and further the objections of the

petitioners were basically with regard to the population of the main

workers based upon the 2011 Census, which I have already

examined and have come to the conclusion that the population of Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

the main cultivator and marginal cultivator workers, as per 2011

Census, is less than 50 %, i.e. 26.71 %, which is in conformity

with the provisions of the Bihar Municipal (Amendment) Act,

2020.

35. The upgradation of a Gram Panchayat into a Nagar

Panchayat is an exercise which is taken for the benefits of the

people/inhabitants of the area in terms of sustained development,

better public utility services and to prevent the haphazard growth

of various activities in the area. The Writ Court, in such matter of

executive policy done in the exercise of statutory power, should

not interfere with it lightly until and unless a strong case is made

thereof. In this regard, this Court is tempted to quote paragraphs

15, 16 and 17 of Dinesh Kumar Himanshu (supra), which read

thus:

"15. The next contention of Mr. Manglam is that the objection/suggestions filed by the petitioners and others have not been considered before issuing the final notification constituting the Nagar Panchayat vide Annexure-10. At least it is not reflected from the said order that such objection filed under Section 5 of the Act was considered and rejected. In order to appreciate the aforesaid contention of the petitioner this Court would bear in mind two relevant aspects of the matter. Firstly, the objection as submitted by the petitioner no. 1 was Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

with respect to the vagueness of the survey report submitted through the respondent District Magistrate and, secondly, the relevant provisions contained in Section 5 of the Act (already noticed hereinabove).

The objection filed by the petitioner that the sample survey report was wholly cryptic and there is no other material before the Government to record its satisfaction that the proposed area had changed its complexion and had become a transitional area (semi-urban area) has already been negated by this Court relying on materials already on record. In this context it may be noticed that although Section 5 provides for consideration of the objection to be filed by any inhabitant of the proposed area within one month from the date of publication of the notification under Section 4 but on reading Section 6 thereof it appears the State Government is only required to take into account those objections. There is no statutory duty cast on the State Government for disposal of those representations/objections after recording reasons therefor. Unless there is any such provision which required the State Government to dispose of such objection giving reasons therefor the same cannot be construed woven into the Act. The impugned notification (Annexure-10) clearly records that the State Government took into consideration the objections before issuing the same. In the counter affidavit filed on behalf of the respondent State, it has clearly been stated that the objections/suggestions were considered by the Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

Government before issuing the notification under Section 6 of the Act. The Court in taking the aforesaid view is conscious of the fact that such notification(s) and constitution of municipal bodies are made/passed in larger public interest to meet the ever increasing aspirations of the citizens. Even otherwise, as noticed above, the objection of the petitioner was principally with respect to the sample survey report attached alongwith the report of the District Magistrate depicting presence of required percentage of population of the inhabitants of the proposed area(s) dependant on non-agricultural occupation/activities. I have already noticed the survey report submitted by the District Magistrate and found the defects therein unworthy for its total rejection. In the report (Annexure-4) further relevant details showing eligibility of the area to be treated and declared as transitional area were also found and reported. Moreover, conversion of Panchayat (rural area) into Nagar Panchayat (semi-urban area) is a serious exercise which is taken for the betterment of the people (inhabitants) of the area. The Writ Court, in such matter of executive policy done in the exercise of statutory power, should not interfere with lightly until and unless a strong case is made therefor. This Court would rely in this regard on the relevant observations made by this Court in an order passed in CWJC No. 737 of 2010 (Pulendra Kumar Singh & Anr. vs. The State of Bihar & Ors.):-

Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

"The decision to progress from a Panchayat to a Nagar Parishad is basically an executive matter. It is however regulated by statutory requirements. This conversion is nothing but only an indication of the development of the society matching the aspirations of the people who desire a better standard of living social, political and economic as the benefits that flow to a Nagar Parishad are better and for improved than that available to the Panchayat. A developing society is not static. Therefore, it is not each and every error in procedure that may necessarily call for interference by the writ court. Unless grave prejudice is shown to have been caused, the writ court shall not lightly to interfere. The conversion of the Panchayat to a Nagar Parishad is a serious exercise from public resources involving considerable man power, man-hours and public finances. .........."

16. Before closing the case this Court would deal with the submission of the petitioners that the impugned notification is vitiated on account of non-compliance of Section 11 of the Act of 2006 for which reliance has been placed on an order of this Court passed in Case No. 677 of 2010. Firstly, no such pleadings in writ petition has been made and shown to the Court enabling the State respondents to place on record their response. Secondly, the order Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

passed by this Court in CWJC No. 677 of 2010 was in an entirely different factual background. Challenge in the said writ petition was to the Government notification dated 26.5.2009 whereby the State Government converted the Municipal Council to Municipal Corporation by adding some area(s) of the neighbouring Gram Panchayat in order to exceed population to two lacs and more. This Court noticed the proviso to Section 11 of the Act of 2006 to conclude that the same was not complied with although the relief was not granted only on the said count. Section 11(1) of the Act of 2006 reads as under:-

"11. Declaration of Gram Panchayat Area.--(1) Subject to the general or special orders of the Government, the District Magistrate may, by notification in the District Gazette, declare any local area comprising a village or a group of contiguous villages or part thereof to be a Gram Panchayat area with a population within its territory as nearly as seven thousand:

Provided that the District Magistrate may, after consultation with the Gram Panchayat concerned, by a notification, at any time, include within or exclude from any Gram Panchayat Area any village or part thereof and alter the name of the Gram Panchayat."

Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

17. It is, thus, seen that the District Magistrate is required to make a consultation with the Gram Panchayat and thereafter issue a notification either to include within or exclude from any Gram Panchayat Area any village or part thereof and alter the name of the Gram Panchayat. On a plain reading thereof it appears that such consultation and notification is required only when the District Magistrate proposes to include within or exclude from any Gram Panchayat Area any village or part thereof. This requirement in law is therefore for creation of a new Gram Panchayat effecting alteration in the area(s) of existing Gram Panchayat(s). This is not the case at hand. That apart, the Municipal Act itself provides for inclusion of such area to be declared as transitional area, urban area or larger urban area. No provision in the Municipal Act has been shown by the petitioners that before doing so any notification by the District Magistrate is required if part of the area constituting a Gram Panchayat is required to be notified as transitional area. Furthermore, the Court in the said case in view of specific provisions contained in Section 8 of the Municipal Act found that the view of the Municipal Council (Municipality) was not obtained before declaring by addition of certain area(s) as Municipal Corporation. The contention of the petitioners is, therefore, not held sustainable in law."

Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

36. Accordingly, the contention of the petitioners with

regard to non-consideration of the objections is fit to be rejected.

37. The further contention of the petitioners with regard

to non-compliance of Section 11 of the 2006 Act is concerned, the

same is also not tenable inasmuch as Section 11 (1) of the 2006

Act reads as follows:

                                               "11.   Declaration      of    Gram
                                   Panchayat Area.--(1)            Subject   to   the

general or special orders of the Government, the District Magistrate may, by notification in the District Gazette, declare any local area comprising a village or a group of contiguous villages or part thereof to be a Gram Panchayat area with a population within its territory as nearly as seven thousand:

Provided that the District Magistrate may, after consultation with the Gram Panchayat concerned, by a notification, at any time, include within or exclude from any Gram Panchayat Area any village or part thereof and alter the name of the Gram Panchayat."

38. From perusal of the aforesaid Section 11 (1) of the

2006 Act, it is very much clear that the District Magistrate is

required to make consultation with the Gram Panchayat and Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

thereafter issue a notification either to include within or exclude

from any Gram Panchayat any village or part thereof and alter the

name of the Gram Panchayat and upon plain reading thereof, it

appears that such consultation and notification is required only

when the District Magistrate proposes to include within or exclude

from any Gram Panchayat any village or part thereof, which is not

the case of the petitioners in the present writ application. Section

11 (1) of the 2006 Act deals with creation of a new Gram

Panchayat effecting alteration in the areas of existing Gram

Panchayat. The petitioners have failed to show any such provision

in the 2007 Act that before issuance of final notification upgrading

a Gram Panchayat into a Nagar Panchayat, the respondents-State is

required to consult the Gram Panchayat before declaring the same

as Nagar Panchayat. This contention of the petitioners is also not

tenable and is rejected.

39. In view of the discussion, on the fact as well as on

law, I come to the conclusion that the petitioners have failed to

satisfy this Court that the impugned notification, dated 18.02.2021,

declaring the Gram Panchayat Raj Baruraj East and Gram

Panchayat Raj Baruraj West as Baruraj Nagar Panchayat, has been

issued in violation of the provisions of 2007 Act.

Patna High Court CWJC No.9878 of 2021 dt.24-09-2021

40. In the result, I find no merit in this writ application,

which is, accordingly, dismissed.

41. However, there shall be no order as to costs.

(Anil Kumar Sinha, J.) Prabhakar Anand/-

AFR/NAFR                         AFR
CAV DATE                      10-09-2021
Uploading Date                24-09-2021
Transmission Date                N/A