Kirti Azad @ Chunchun vs The State Of Bihar
2022 Latest Caselaw 1168 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.11414 of 2021
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Kirti Azad @ Chunchun S/o Late Umakant Singh Ex-Mukhia Gram Panchayat Samas Khurd, R/o Village- Koja Gachhi, P.S.- Barbigha, Dist- Sheikhpura.

... ... Petitioner Versus

1. The State of Bihar through the Principal Secretary, Urban Development and Housing Department, Govt. of Bihar, Patna.

2. The Director, Urban Development and Housing Department, Govt. of Bihar, Patna.

3. The Commissioner, Munger Pramandal At Munger, P.S. and Distt- Munger.

4. The District Magistrate, Sheikhpura, P.S. and Distt- Sheikhpura.

5. The Executive Officer, Nagar Parishad Barbigha/Nagar Panchayat, Barbigha, P.S.- Barbigha, Distt- Sheikhpura.

6. The Chairman, Nagar Panchayat Barbigha, P.S.- Barbigha, Distt-

Sheikhpura.

... ... Respondents ======================================================

Appearance :

For the Petitioner : Dr Anjani Pd. Singh, Advocate For the Respondent State: Mr Abbas Haider, S.C.-6 For the Respondent No.5 : Mr Neeraj Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE MADHURESH PRASAD C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 15-02-2022

This matter has been taken up for hearing online because

of COVID-19 pandemic restrictions.

2. The petitioner, an ex-Mukhiya, of Gram Panchayat

Samas Khurd in the district of Sheikhpura, is aggrieved by a

notification issued vide Memo. No.1328 dated 17.03.2021 by Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

Urban Development and Housing Department, Government of

Bihar, whereby the said Gram Panchayat has been included in

Nagar Parishad, Barbigha, in the exercise of the power vested in

the State Government under Section 8 of the Bihar Municipal Act,

2007.

3. We have heard Dr Anjani Prasad Singh, learned

counsel appearing on behalf of the petitioner, Mr Abbas Haider,

learned Standing Counsel No. 6 for the State of Bihar and Mr

Neeraj Kumar Singh, learned counsel for the Nagar Parishad,

Barbigha.

4. It is the petitioner's case that the notification is in

teeth of the second proviso to Section 3 of the Act, which

mandates that the population of main cultivator workers and

marginal cultivator workers of an urban area (larger, medium or

transitional) must be less than of 50% of the total population of

workers in such area in all cases. The petitioner's case is that 90%

to 95% of the panchayat village population is agricultural farming.

It is petitioner's further case that the villages under Gram

Panchayat Samas Khurd are at a distance of five km. to 10 km.

from the Nagar Parishad, Barbigha, which has wrongly been made

part of the said Nagar Parishad, leaving aside the nearer villages,

deliberately against the interest of the villagers of the Gram Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

Panchayat Samas Khurd. It is the petitioner's case that he had

raised an objection against the proposal to include the said Gram

Panchayat Samas Khurd into the Barbigha Nagar Parishad.

Without duly considering the petitioner's objection, Gram

Panchayat Samas Khurd has been incorporated into the Nagar

Parishad, Barbigha by the impugned notification, the petitioner

contends.

5. Dr Anjani Prasad Singh, learned counsel appearing on

behalf of the petitioner, has submitted with reference to the

statement made in paragraph 14 of the writ petition that since 75

per cent of the population of Gram Panchayat Samas Khurd is of

either marginal cultivator workers or main cultivator workers, the

status of the Gram Panchayat ought not to have been altered, and

it should not have been included in Barbigha Nagar Parishad.

According to him, objections raised by the petitioner and others

have been casually considered by the authorities and rejected

without due application of mind.

6. A counter affidavit has been filed on behalf of the

State of Bihar from which it transpires that the State of Bihar

undertook an exercise for constitution of new urban bodies and up-

gradation/extension of the area of old urban local bodies. During

the review of the proposals obtained from all districts at the Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

departmental level, a necessity to issue guidelines addressing

various issues, especially a need for constitution of committee

under the chairmanship of the District Magistrate for review of the

amended proposal was felt. Accordingly, the Secretary, Urban

Development and Housing Department, through a letter dated

13.12.2020, informed all the District Magistrates of Bihar to send

amended proposals for the constitution of new urban bodies. In

response to the said letter dated 13.12.2020, the District

Magistrate, Sheikhpura, recommended the Secretary of the

Department through his letter dated 19.12.2020 for extension of

Barbigha Nagar Parishad. A copy of the said recommendation has

been brought on record by way of Annexure-R/3 to the counter

affidavit, from which it transpires that the villages of Gram

Panchayat Samas Khurd were recommended to be included in

Nagar Parishad, Barbigha by way of extension. It is a specific case

of the State of Bihar, based on the said letter dated 19.12.2020 and

other statistics provided by the District Magistrate, that percentage

of the population of main cultivator workers and marginal

cultivator workers in the proposed extended area of Barbigha

Nagar Panchayat was arrived at 23.6 per cent of the total number

of workers. Based on the said recommendation, the Department

published a notification dated 26.12.2020 in accordance with and Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

in the exercise of power under Sections 3(1)(a), 4, 5, 6 and 8 of the

Act, declaring the intention of the State Government to alter the

area of Nagar Parishad, Barbigha, by way of extension. In terms of

the said notification, 13 new villages were proposed to be

included, including the village Samas Khurd. Objections were

invited under Section 5 of the Act. The district-level committee

headed by the District Magistrate took into consideration the

objections. Further, in pursuance of a departmental letter dated

10.03.2021 for constitution and extension of the area of municipal

bodies in Sheikhpura district and also for removal of anomalies as

pointed out by the Census Directorate, a fresh proposal was sent

on by the District Magistrate to the Department on the same day

on 10.03.2021 from which it can be seen that total population of

main cultivator and marginal cultivator workers in the extended

Barbigha Nagar Panchayat has been found to be 835, which is

23.12 per cent of the total number of workers.

7. Accordingly, taking into consideration all relevant

materials, the impugned notification extending area of Barbigha

Nagar Parishad, in which Samas Khurd Gram Panchayat has been

included, came to be published.

8. Mr. Abbas Haider, learned Standing Counsel No.6

appearing on behalf of the State of Bihar has submitted that the Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

writ application is based on the wrong notion that population of

main cultivator workers and marginal cultivator workers of a

village or a gram panchayat is the determining criteria for its

inclusion into an urban body. He has submitted that population

percentage of the main cultivator workers and marginal cultivator

workers of the entire proposed extended urban area including the

area contiguous to such municipal area proposed to be included

after extension is required to be considered to satisfy the

requirement of the first proviso to Section 3(1) of the Act.. He has

submitted that the objections of the villages were taken into

consideration at the appropriate level, some of which were

accepted, leading to the exclusion of some of the villages, which

were earlier proposed to be included in Barbigha Nagar Parishad.

He submits that there has been active consideration of the

objections raised by the inhabitants depending upon the nature of

such objections.

9. Before adverting to rival submissions advanced on

behalf of the parties and pleadings on record, we must notice the

ambit of Section 8 of the Act, which confers power on the State

Government to abolish or alter the limits of a municipal area by a

notification. The ways of abolition and alterations include

inclusion within the municipal area any local area contiguous to Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

such municipal area as defined in the notification [see (c) of

Section 8 of the Act]. The first proviso to Section 8 of the Act

mandates that the procedure laid down for the constitution of a

municipal area under the Act shall be followed mutatis mutandis in

each such case. The second proviso to Section 8 of the Act

requires obtaining views of the municipality affected by any such

notification and consideration of the municipality's opinion as

aforesaid before a final declaration is made. We are not concerned

with the third proviso for the present adjudication, which relates to

Cantonment area or part thereof, as defined in the Cantonments

Act, 1934. The procedure for the constitution of a municipal area

is laid down in Sections 3, 4, 5 and 6 of the Act. Section 3 of the

Act envisages that after making such enquiry as it may deem fit,

and having regard to the population of any area, the density of any

population therein, revenue generation for the local population of

such area, percentage of employment in non-agricultural activities

in such area, the economic importance of such area and such other

factors as may be prescribed, the State Government may, by

notification, declare its intention to specify such area to be a larger

urban area or a medium urban area or a transitional urban area.

The first proviso puts certain preconditions for such declaration

based on population. For example, in case of a larger urban area, Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

the population must be two lakhs or more; for a medium urban

area, it should be 40000 (forty thousand) or more, but less than

two lakhs, and in the case of transitional area, the population

should be 12000 (twelve thousand) or more, but not more than

40000 (forty thousand). A declaration under Section 3 shall be

invalid if it does not fulfill the mandatory requirement of the first

proviso to Section 3 of the Act. The second proviso to sub-section

(1) of Section 3 mandates that for a declaration of intention under

Section 3 of the Act, the total population of main cultivator

workers and marginal cultivator workers shall be below 50 per

cent of the total population of workers in such area in all cases.

The second proviso to sub-section (1) of Section 3 of the Act reads

as under: -

"3. Declaration of intention to constitute a municipal area.--(1) The State Government may, after making such inquiry as it may deem fit, and having regard to the population of any urban area, the density of population therein, the revenue generated for the local administration of such area, the percentage of employment in non-

agriculture activities in such area, the economic importance of such area, and such other factors as may be prescribed, Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

by notification, declare its intention to specify such area to be a larger urban area, or a medium urban area, or a transitional area:

Provided that no such declaration shall be made unless the population

(a) in the case of a larger urban area, is two lacs or more,

(b) in the case of medium urban area, is forty thousand or more but is less than two lacs, and

(c) in the case of a transitional, area, that is a small town, is twelve thousand and more but not more than forty thousand:

Provided further that the non-

agricultural population in all cases shall be seventy five per cent or more."

10. A declaration by way of notification under sub-

section (1) of Section 3 of the Act shall be invalid if it does not

fulfill precondition as prescribed in the second proviso as quoted

above.

11. At this juncture, it is noted that it is not the

petitioner's case that the notification is in breach of first proviso to

sub-section (1) of Section 3 of the Act. In our opinion, it has been Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

rightly submitted by learned Standing Counsel No.6 representing

the State of Bihar that percentage of population of main cultivator

workers and marginal cultivator workers of total cultivator

workers is not required to be determined in respect of a particular

village or Panchayat for the purpose of the second proviso to sub-

section (1) of Section 3 of the Act. Rather the same is to be

computed based on such percentage of population of 'such area' in

respect of which there is the intention of the State Government to

constitute a municipal area. This view has been taken in a recent

Division Bench decision of this Court, of which both of us

(Chakradhari Sharan Singh and Madhuresh Prasad, JJ) are

members, rendered on 17.01.2022 in C.W.J.C. No. 7446 of 2021

and an analogous matter (Usha Devi Vs. The State of Bihar and

Others), paragraphs 21 to 23 of which is being usefully

reproduced to address the issue at hand, that read as under: -

"21 Another aspect of the matter is that fulfilment of requisite factors under Sections 3 and 7 of the Act of 2007 has to be considered in relation to "such area". The expression "such area"

has repeatedly been used in Section 3 of the Act of 2007 and refers to the "urban area", which was proposed to be constituted and to come into existence as Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

a result of the process of constitution/ up- gradation of Municipality/Urban Area.

22. It is clear from these statutory provisions that the requisite population, density of population, revenue generated for local administration, percentage of employment in non-

                                  agricultural             activities,                economic
                                  importance         and            other        requirements,
                                  contemplated under Sections 3 and 7 of
                                  the Act of 2007, are not requirements in
                                  respect      of    the        rural          area/individual

panchayat/small municipal area, which are sought to be included for the purposes of upgradation or constitution of Municipal Area under the Act of 2007. The said requisites are to be satisfied in respect of the municipal area, which has to come into existence as a result of the process undertaken for constitution of municipality in accordance with Chapter II of the Act of 2007.

                                               23       Thus,            in     our    opinion
                                  petitioners'      case,            that       the   requisite
                                  composition                  of             non-agricultural

population/workers is to be satisfied in respect of all the four individual Gram Panchayats, is misconceived and fallacious."

Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

12. A clear statement is made in paragraph 7 H of the

counter affidavit that the percentage of main cultivator workers

and marginal cultivator workers of the area is 23.12 per cent of the

total number of workers. The said statement made in the counter

affidavit has not been denied and thus has remained

uncontroverted.

13. It would be apt, at this stage, to notice the

submission advanced on behalf of the petitioner that Samas Khurd

Gram Panchayat being not contiguous to the Barbigha Nagar

Parishad, could not have been included in the said Nagar Parishad

by applying clause (c) of Section 8 of the Act. On perusal of

Annexure-4 to the writ application, it is evident that after

considering objections, new recommendations were made for

constitution, up-gradation and extension of the area of municipal

bodies in the district of Sheikhpura, including Barbigha Nagar

Parishad. The petitioner's objection that the villages of Samas

Khurd Gram Panchayat were 5-10 km. away from Barbigha Nagar

Parishad and that there are 80 per cent agriculturists in the said

gram panchayat, were considered. Dealing with the said

objections, the District Magistrate recorded a clear finding that

Samas Khurd Gram Panchayat and Barbigha Nagar Parishad have

adjoining boundaries.

Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

14. Taking into account the admitted facts and other

materials available on record, we are of the definite view that the

impugned notification does not suffer from any legal infirmity.

15. The scope of judicial review in the matter of

constitution/up-gradation of an urban local body has been

extensively dealt with in a recent decision rendered by this Court

in case of Usha Devi (supra), taking note of Supreme Court's

decision in case of Sundarjas Kanyalal Bhatija v. Collector,

Thane, reported in (1989) 3 SCC 396, paragraphs 47 to 49 and

51 and 52 are being reproduced hereinbelow for the benefit of

quick reference :

"47. Having regard to the discretion given to the Governor under Article 243Q of the Constitution of India, the notifications issued under Chapter II of the Act of 2007 cannot be considered to be discharge of administrative functions, much less adjudicatory in nature. Though the notifications under Sections 4 and 6 of the Act of 2007 are issued under Article 166 of the Constitution of India, but the same may be termed as legislative rather than administrative.

48. By no stretch of imagination, the exercise of declaration of intention or constitution of municipal area may be termed Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

as adjudicatory function. Chapter II of the Act of 2007, therefore, consciously omits the requirement of disposing of the objections received in response to the notification issued under Section 4 of the Act of 2007. Chapter II of the Act of 2007 only provides an opportunity to the inhabitants of the city, town or Nagar Panchayat to submit their objection in writing to the State Government within one month from the date of publication of intention to constitute a municipal area. The Act of 2007, therefore, requires the State Government to take such objection into consideration; and consciously omits any prescription for disposal of the objections or passing of orders thereupon.

49. The notifications issued under Chapter II of the Act of 2007 are issued in exercise of functions which partakes legislative character though issued under Article 166 of the Constitution of India.

xxx xxx xxx

51. Likewise, in the instant case, the notifications issued by the Governor in exercise of powers under Chapter II of the Act, having its roots in Article 243Q (2) of the Constitution of India cannot be subjected to judicial review applying the principles of natural justice, requiring the passing of reasoned orders upon objections received in response to notification issued under Section 4 of the Act of 2007.

Patna High Court CWJC No.11414 of 2021 dt. 15-02-2022

52. Once the objections are invited, considered and notification issued, it is not for the constitutional Courts under Article 226 of the Constitution of India to sit in judgment over the decision leading to issuance of the notification upgrading or constituting a larger Municipal Area."

16. For the reasons noted above, we do not find any

merit in this writ application, which is accordingly dismissed.

17. There shall, however, be no order as to costs.

                                                         (Chakradhari Sharan Singh, J)
Madhuresh Prasad, J:              I agree.




                                                                ( Madhuresh Prasad, J)
Pawan/-
AFR/NAFR                NAFR
CAV DATE                25.01.2022
Uploading Date          21.02.2022
Transmission Date       N/A