Patna High Court
Domni Devi vs The State Of Bihar on 4 April, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5886 of 2021
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Ashok Kumar, son of Late Ram Batohi Paswan, resident of village - Baheri,
P.O. and P.S. Baheri, District- Darbhanga, presently Mukhiya of Gram
Panchayat Raj, Baheri East, Block - Baheri, District- Darbhanga.
... ... 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 District Magistrate, Darbhanga.
4. The District Panchayat Raj Officer, Darbhanga, District- Darbhanga.
5. The Block Development Officer, Baheri, District- Darbhanga.
... ... Respondent/s
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with
Civil Writ Jurisdiction Case No. 6592 of 2021
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Domni Devi, wife of Sri Ram Ashish Manjhi, resident of village - Baheri,
P.O. and P.S. Baheri, District- Darbhanga, presently Mukhiya of Gram
Panchayat Raj, Baheri, West, Block- Baheri, District- Darbhanga.
... ... 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 District Magistrate, Darbyhanga.
4. The District Panchayat Raj Officer, Darbhanga, District- Darbhanga.
5. The Block Development Officer, Baheri, District- Darbhanga.
... ... Respondent/s
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Appearance :
(In Civil Writ Jurisdiction Case No. 5886 of 2021)
For the Petitioner/s : Mr. Shashi Bhushan Kumar Manglam, Advocate
For the Respondent/s : Mr. Yogendra Pd. Sinha, AAG-7
Mr. Rajeev Kr. Sinha, AC to AAG-7
(In Civil Writ Jurisdiction Case No. 6592 of 2021)
For the Petitioner/s : Mr. Shashi Bhushan Kumar Manglam, Advocate
For the Respondent/s : Mr. Subhash Prasad Singh, GA-3
Mr. Dilip Kumar, AC to GA-3
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
Patna High Court CWJC No.5886 of 2021 dt.04-04-2022
and
HONOURABLE MR. JUSTICE MADHURESH PRASAD
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)
Date : 04-04-2022
In both these matters the petitioners put to challenge a
notice dated 26.12.2020 under Section 4 of the Bihar Municipal
Act, 2007 (hereinafter referred to as 'the Act') issued by the
State Government declaring its intention to notify Baheri Nagar
Panchayat. The objections from the inhabitants of the area were
invited under Section 5 of the Act. It is an admitted fact that
despite opportunity available to these petitioners they did not
raise any objection against the proposal of the State
Government to notify Baheri as Nagar Panchayat.
2. During pendency of the writ application, the State
Government came out with a final notification dated
03.03.2021 under Section 6 of the Act notifying Baheri as
Nagar Panchayat. The said notification is sought to be
challenged by seeking amendment in CWJC No. 5886 of 2021
through I.A. No. 1 of 2021. Similar application seeking
amendment has been filed in CWJC No. 6592 of 2021. Since
challenge in both the applications is to the same notification
under Section 4 of the Act dated 26.12.2020 and subsequent
notification under Section 6 of the Act dated 03.03.2021, they
Patna High Court CWJC No.5886 of 2021 dt.04-04-2022
have been heard together with the consent of the parties and are
being disposed of by present common judgment and order.
3. Considering the fact that the notification dated
03.03.2021 is sequel to the same notification under Section 4 of
the Act dated 26.12.2020, both the Interlocutory Applications
(I.A. No. 1 of 2021 in CWJC No. 5886 of 2021 and I.A. No. 1
of 2021 in CWJC No. 6592 of 2021) are allowed. The
averments made in the said Interlocutory Applications have
been treated to be part of the pleadings in respective writ
applications.
4. Mr. Manglam, learned counsel appearing on behalf
of the petitioners in both the cases has drawn our attention to
Annexure-B to the counter affidavit filed by Block
Development Officer, Baheri, Darbhanga, which is a letter
dated 17.11.2016 relating to proposal regarding constitution of
Baheri Nagar Parishad. Mr. Manglam has attempted to assail
the impugned notification under Section 4 of the Act on the
ground that whereas the proposal was for constitution of Nagar
Parishad, on the basis of said proposal, the State Government
decided to declare its intention for constitution of Nagar
Panchayat with issuance of the notification dated 26.12.2020.
He has submitted that there has been no enquiry after 2016
Patna High Court CWJC No.5886 of 2021 dt.04-04-2022
based on which the State Government could have come out
with notification under Section 4 of the Act.
5. There is statement made in paragraph 14 of the writ
application that the total population of village Baheri is 10850
only and, therefore, the constitution of Baheri as Nagar
Panchayt does not fulfill the requirement of sub section (1)(c)
of Section 3 of the Act.
6. The Division Bench of this Court has clearly laid
down in case of Usha Devi vs. The State of Bihar & Ors.
(CWJC No. 7446 of 2021) in paragraph 16 that a person, who
does not choose to make any objection under Section 5 of the
Act after publication of notice under Section 4 of the Act,
cannot be permitted to assail the draft notification or final
notification in a writ proceeding.
7. Paragraph 16 of the said decision reads as under :-
"16. Before going into the
controversy based on objections
raised in the writ petition, it would be
worthwhile to consider whether
petitioner Nos. 1, 2 and 4 can be
permitted to assail the draft
notification or the final notification.
Since these petitioners have chosen
not to make any objection when they
were afforded opportunity, there is no
basis for them to maintain the instant
writ proceedings. Having chosen not
to avail the statutory opportunity, it
Patna High Court CWJC No.5886 of 2021 dt.04-04-2022
does not lie in their mouth to contend
that there is any infirmity in the
statutory process, much less non
consideration of their objections.
They cannot be permitted to invoke
writ jurisdiction of this Court under
Article 226 of the Constitution of
India.
8. In relation to submission advanced on behalf of the
petitioner that the total population of Baheri Village is only
10850 and, therefore, it does not fulfill the requirement of sub-
section (1)(c) of Section 3 of the Act is also unsustainable for
the reason that total population of the proposed Nagar
Panchayat was clearly disclosed in the notification under
Section 4 of the Act as 21872. Section 4 notification clearly
mentions that the calculation of population is based on 2011
census.
9. It will be appropriate to mention here that it has
been held in case of Usha Devi (supra) that the requisite
population in terms of Sections 3 and 7 of the Act is to be
specified in respect of the entire municipal area which has to
come into existence as a result of process undertaken for
constitution of municipality in accordance with Chapter-II of
the Act.
10. For the foregoing reasons, we are of the
Patna High Court CWJC No.5886 of 2021 dt.04-04-2022
considered opinion that in the light of the Division Bench
decision in case of Usha Devi (supra), this writ application
cannot be maintained at the instance of these petitioners who
failed to raise their objection. Further, we do not notice any
illegality in the impugned notifications in view of the law laid
down in case of Usha Devi (supra).
11. These writ applications are accordingly dismissed,
being devoid of merit.
(Chakradhari Sharan Singh, J)
( Madhuresh Prasad, J)
Rajesh/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 07.04.2022
Transmission Date NA
