IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16417 of 2009 Syed Shahid Raza, son of Late Syed Ansar Raza, resident of Mohalla- Syed Bara, P.O.-Purnea City , P.S.-Purnea, District-Purnea. -Petitioner. VERSUS 1. The State of Bihar through the Secretary, Urban Development Department, Government of Bihar, Patna. 2. The State Election Commissioner (Municipality), the State Election Commission, Sone Bhawan, Birchand Patel Path, Patna. 3. The Secretary, the State Election Commission, Sone Bhawan, Birchand Patel Path, Patna. 4. The District Magistrate-cum-District Election Officer (Municipality), Purnea, District-Purnea. 5. The Sub-Divisional Officer, Purnea, District-Purnea. -Respondents. ----------- Advocate for Petitioner : Mr. S.B.K. Mangalam. Advocates for State : Mr. P.K. Shahi, A.G. Mr. Prabhat Kumar, S.C.-21. Advocates for Election Commission : Mr. R.S. Pradhan, Sr. Adv. Mr. Sanjeev Nikesh. ------------ 02 30.11.2009 Purnea was a Nagar Parishad in terms of Bihar Municipal Act, 2007. The State Government after considering objections decided to upgrade the same on urbanization and make it into a Nagar Nigam under the Municipal Act. The notification was, accordingly, issued on 25.06.2009. Thus, the Purnea Nagar Nigam was statutorily created. By virtue of Section 12(8) of the Municipal Act, so far as a newly constituted municipality is concerned, the old body that is the Nagar Parishad would continue to exercise jurisdictions not exceeding 6 months period, which is the period fixed for holding the first election, thus, the members of the Nagar Parishad would continue. In the mean time, the State Election Commission took all steps to conduct the election like delimitation, preparing of voters’ list etc. This having been done. - 2 - It sent the election programme to the State Government, which election programme had to be published on 14th November, where after by 23rd of December the Results had to be declared. Petitioner has now challenged the communication of the State Election Commission, as contained in Annexure-5, being dated 13th November, 2009, by which the State Election Commission has stated that as the State Government is not responding to the request of the State Election Commission, the election programme cannot be announced and has said so many words that it is not possible to conduct the general elections of the newly constituted Purnea Nagar Nigam. When the matter is taken up learned Advocate General is present in the Court and has assisted the Court in the matter. He pointed out that it appears that people of various localities in this State were first interested in getting their local areas promoted into more urbanized areas for various reasons, thus various Panchayats wanted that they should be constituted as Nagar Parishad, various Nagar Parishad wanted to be Nagar Nigam and so on. State Government considering views notified them upgrading them. Once they were so notified then objections started coming from reverting them back. State Government is considering those views, whether they should be entertained or not and as such could immediately approve of the general election of all those local self- governments. That is the reason why elections are getting delayed. Having considered the matter, in my view, the statute - 3 - gives no such discretion to the State Government. Once a Nagar Nigam is newly created by appropriate notification then the legislative intent is that within 6 months the elections have to be held. This is a mandatory provision for the simple reason that in the interregnum members of the erstwhile dissolved Nagar Parishad are permitted to function till the first body of elected members of the Nagar Nigam takes charge. The life span of this administrative body is only 6 months. On expiry whereof, they ceased to have any power in the matter. Law does not contemplate of any void in between cessation of power by the Nagar Parishad and assumption of power by the Nagar Nigam. It is because of this the period of 6 months is a mandatory period within which elections must be held, merely because, elections are held by the Nagar Nigam would not denude the State Government’s power to abolish the municipality or the municipal limit or alter it, they flows from Section 8. Here, if the State Government intends to withdraw any area or any municipality as a whole, it has power but then it must notify its intention, seek the views of the effected people and the effected body and take a decision. Reading the two provisions harmoniously that is Section 12 (8) and Section 8 of the Act, it is expected that the exercise must first be completed within 6 months and the elections cannot be postponed beyond that even after elections are held and the new body is constituted. The State Government is denuded of its power, it can still de-notify the area - 4 - after following the procedure, as prescribed by Section 8, thus in no case election can be postponed. In that view of the matter, I am left with no option but to direct the State Government to immediately grant approval to the State Election Commission to go ahead with the election programme, which now time having been expired, would require modifications. State is under duty to see that for several newly constituted body elections are not only held but to be completed within 6 months period so as to leave no void in between. Let mandamus, accordingly, be issued. The writ petition stands allowed. Trivedi/ (Navaniti Prasad Singh, J.)