IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1797 of 2010 IN (CIVIL WRIT JURISDICTION CASE 1297/2010) ========================================================== = 1. S.M. Ali Imam S/O Late S.M. Zareef R/O Mohalla- Basuham Qaziana, P.O. And P.S.- Bahera, Distt.- Darbhanga .... .... Appellant/s Versus 1. The State Of Bihar Through The Principal Secretary Department Of Urban Development And Housing Department, Govt. Of Bihar, Old Secretariat, Patna 2. The Principal Secretary Department Of Urban Development And Housing Department, Govt. Of Bihar, Old Secretariat, Patna 3. The Principal Secretary, Department Of Panchayati Raj, Govt. Of Bihar, Patna 4. The Joint Secretary Department Of Urban Development And Housing Department, Govt. Of Bihar, Old Secretariat, Patna 5. The Divisional Commissioner, Darbhanga 6. The Collector, Darbhanga 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. Anand Kumar Ojha S/O Jivnath Jha R/O Vill.- Chourama, P.S. And P.O.- Bahera, Distt.- Darbhanga 10. Shailendra Mohan Paswan S/O Yogendra Paswan R/O Vill. And P.O.- Benipur, P.S.- Bahera, Distt.- Darbhanga 11. Smt. Manjula Devi W/O Indu Bhushan Thakur R/O Vill.- Majuhara, P.S.- Bahera, P.O.- Benipur, Distt.- Darbhanga 12. Smt. Arti Devi W/O Arun Kumar Mehta R/O Vill.- Bahera, P.S.- Bahera, P.O.- Benipur, Distt.- Darbhanga 13. Surendra Kumar Jha S/O Shri Ram Sunder Jha At + P.O. P.S.- Benipur, Distt.- Darbhanga 14. Mahendra Paswan S/O Late Ram Das Paswan R/O Vill.- Karhani, P.S.- Bahera, Distt.- Darbhanga 15. Bisundeo Paswan S/O Late Saryug Paswan R/O Vill.- Benipur, P.S.- Bahera, Distt.- Darbhanga 16. Manikant Jha S/O Late Bachcha Jha R/O Vill.- Dherukh, P.S.- Bahera, Distt.- Darbhanga 17. Lallan Jha S/O Upendra Jha R/O Vill.- Ballaha, P.S.- Bahera, Distt.- Darbhanga .... .... Respondent/s with Letters Patent Appeal No. 1822 of 2010 IN (CIVIL WRIT JURISDICTION CASE 1297/2010) ========================================================== 2 = 1. Surendra Kumar Jha S/O Ram Sunder Jha R/O P.O & Bnipur, Distt. Darbhanga .... .... Appellant/s Versus 1. The State Of Bihar Through The Principal Secretary, Deptt. Of Urban Development And Housing Deptt. Government Of Bihar R/O Old Seretariate, Patna 2. The Principal Secretary,. Deptt. Of Urban Development And Housing Deptt. Government Of Bihar R/O Old Secretarite, Patna 3. The Principal Seretary , Deptt. Of Panchayati Raj Govt. Of Bihar R/O Patna 4. The Joint Secretary, Deptt. Of Urban Development And Housuing Deptt., Govt. Of Bihar Null R/O Old Secretariate, Patna 5. The Divisional Commissioner R/O Darbhanga 6. The Collector R/O Distt. Darbhanga 7. The State Election Commission Through Its Secretary R/O Sone Bhawan, Birchand Patel Path, Patna 8. The Secretary, State Election Commission Through Its Secretary R/O Sone Bhawan, Birchand Patel Path, Patna 9. S.M. Ali Imam S/O S.M. Zareef R/O Mohalla Basuham Qaziana, P.O. & P.S. - Bahera, Distt. Darbhanga 10. Mahendra Paswan S/O Ram Das Paswan R/O Vill. Karhani, P.S. Bahenra, Distt. Darbhanga 11. Bisundeo Paswan S/O Saryug Paswan R/O Benipur P.S. Bahera, Distt. Darbhang 12. Mani Kant Jha S/O Bachcha Jha R/O Vill. Ballaha, P.S. Bahera, Darbhanga 13. Lallan Jha S/O Upendra Jha R/O Vill Ballaha, P.S. Bahera, Distt. Darbhanga 14. Anand Kumar Jha S/O Jivnath Jha R/O Vill. Chourama, P.S. + P.O. - Bhera, Distt. Darbhanga 15. Shailendra Mohan S/O Yogendra Paswan R/O Vill Benipur, P.S. Bahera, P.O. Benipur, Distt. Darbhanga 16. Smti. Manjula Devi W/O Indu Bhushan Thakur R/O Vill. Majhaura, P.S. Bahera, P.O. Benipur, Distt. Darbhanga 17. Smt. Art. Devi W/O Arun Kumar Mahato R/O Vill. Bahera, P.S. Bahera, P.O. Bahera, P.O. Benipur, Distt. Darbhanga .... .... Respondent/s with Letters Patent Appeal No. 1919 of 2010 ========================================================== = 1. Mahendra Paswan S/O Late Ram Das Paswan R/O Vill Karhani, P.S.Bahenra, Distt-Darbhanga .... .... Appellant/s Versus 1. The State Of Bihar Through The Principal Secretary, Deptt. Of Urban Development And Housing Deptt. Government Of Bihar, Old Secretariate, Patna 2. The Principal Secretary, Deptt. Of Urban Development And Housing Deptt. Null Government Of Bihar, Old Secretariate, Patna 3 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-Darbhanga 7. The State Election Commission Through Its Secretary Null Sone Bhawan, Birchand Patel Path, Patna 8. The Secretary, State Election Commission Through Its Secretary Sone Bhawan, Birchand Patel Path, Patna 9. S.M. Ali Imam S/O Late S.M. Zareef R/O Moh Basuham Qaziana, P.O.& P.S.Bahera, Distt-Darbhanga 10. Surendra Kumar Jha S/O Sri Ram Sunder Jha R/O At P.O.& P.S.Benipur, Distt-Darbhanga 11. Bisundeo Paswan S/O Late Saryug Paswan R/O Vill Benipur, P.S.Bahera, Distt-Darbhanga 12. Mani Kath Jha S/O Late Bachcha Jha R/O Vill Ballaha, P.S. Bahera, Distt- Darbhanga 13. Lallan Jha S/O Upendra Jha R/O Vill Ballaha, P.S.Bahera, Distt-Darbhanga 14. Anand Kumar Jha S/O Jivnath Jha R/O Vill Chourama, P.S. +P.O. Bhera, Distt-Darbhanga 15. Shailendra Mohan S/O Yogendra Paswan R/O Vill Benipur, P.S. Bahera, P.O.Benipur, Distt-Darbhanga 16. Smt.Manjula Devi W/O Indu Bhushan Thakur R/O Vill Majhaura, P.S.Bahera, P.O.Benipur, Distt-Darbhanga 17. Smt. Arti Devi W/O Arun Kukmar Mahato R/O Vill Bahera, P.S.Bahera, P.O.Bahera, P.O.Benipur, Distt-Darbhanga .... .... Respondent/s ========================================================== = Appearance : (In LPA No. 1797 of 2010) For the Appellant/s : Mr. Sarva Deo Singh For the State :Mr. Y.P.Sinha, (AAG-15) Mr. Rakesh Ambastha, AC to AAG-15 Mr. Rajni Kant Pathak, Advocate Mr. Maruth Nath Roy, Advocate (In LPA No. 1822 of 2010 & In LPA No. 1919/2010) For the Appellant/s : Mr. Manish Kumar For the State : Mr. Y. P. Sinha, (AAG-15) Mr. Rakesh Ambastha, AC to AAG-15 Mr. Nand Kishore Pathak, Advocate Mr. Maruth Nath Roy, Advocate P R E S E N T HONOURABLE MR. JUSTICE PRAKASH CHANDRA VERMA HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI 4 (Delivered by Aditya Kumar Trivedi, J.) 1. These three Letters Patent Appeals have been filed against the judgment and order dated 12.10.2010 passed by learned single Judge in CWJC No. 4039/2010. As such, there has been analogous hearing and are disposed of by a common order. 2. Shorn of unnecessary details, the State Government exercising the powers vested under Bihar Municipal Act declared Benipur Nagar Parishad comprising villages falling under different Gram Panchayats vide Notification No.4 (NGA-917) dated 20.05.2009 and accordingly the aforesaid Notification/Annexure- 4 along with other ancillary/consequential letters issued vide Annexures-2, 5 and 6 have been brought under challenge by respondents/petitioners under CWJC No. 1297/2010 which was ultimately decided on 5.2.2010 by the learned single Judge nullifying the same. 3. It has been contended on behalf of the learned counsel for the appellants of all the LPAs that the impugned order suffers from non application of judicial mind more particularly towards the annexures filed by the appellants/O.P. as well as by the State Government which if considered would not have resulted in getting the relevant Notification quashed. It has further been argued that the learned single Judge misconstrued the relevant provisions in a more particular way Section- 3 of Bihar Municipal Act, 2007 in getting it harmonious reading with Article 243 Clause-Q of the Constitution. Also submitted that there has been proper compliance of Section-4 and 5 of the Bihar Municipal Act, 2007 but the learned single Judge in 5 spite of having sufficient material in support thereof overlooked the same, consequent thereupon quashed the Notification in utter violation of law and accordingly submitted that the order impugned is fit to be set aside. 4. On the other hand, learned counsel for the Resopondent /Petitioners submitted that order is well reasoned and deals with factual as well as legal proposition of law. Further submitted that there has been complete violation of condition enumerated under Section-3 of the Bihar Municipal Act and on account thereof, the State Government was not competent enough to notify Benipur Nagar Parishad followed with contravention of requirement of Section-4 and 5 of the Act. Also submitted that the State authority acted in arbitrariness as well as in complete violation of natural justice of law as the residents were not at all given opportunity to raise their grievances against the wish/desire of the State Government to notify Benipur Nagar Parishad. Furthermore, it has been submitted that by such action the State Government intended to deprive of entitlement of poor labourers, peasants in getting the State sponsored constitutional benefit which was not at all to be availed by them in case of promulgation of Notification. Also submitted that learned single Judge had framed three points having on this score covering all the disputed issues and dealt with minutely taking into account the factual as well as legal aspect. Hence, the order impugned needs no interference. 5. It has been submitted on behalf of the State that the learned single Judge has not taken into consideration the relevant annexures by which the State was able to show compliance of each and every mandatory requirement prescribed 6 under Section-4 of the Bihar Municipal Act. Learned single Judge wrongly and illegally taken into consideration non-authenticated document on the point of population which happens to be contrary to the reports submitted by BDO, Annexure-C, letter no. 1691 dated 24.10.2008. Therefore, submission is that on all points which have been formulated and answered negativating the plea of State justifying the Notification is totally absurd and beyond the record. 6. After going through the judgment impugned, it is evident that the learned single Judge has formulated following three points to decide the issue under its paragraph-27. (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 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 procedure adopted by the authorities were in accordance with provisions of law prescribed in the Bihar Municipal Act, 2007 ? And it appears from the judgment impugned that all the aforesaid points have been decided in favour of petitioners against the O.Ps. under paragraphs- 28 to 41 of the judgment. 7. We do feel that the aforesaid points will also cover the matter in hand and is accordingly taken into consideration. However point no.(a) has not been pressed as such the same is excluded from consideration. 7 8. Point (b) has been decided on the basis of Annexure-3, a letter sent by the Deputy Secretary directing Urban Development and Housing Department, Government of Bihar to the District Magistrate, Darbhanga. On cursory perusal of aforesaid Annexure-3, it is evident that the same happens to be a proforma sent from the Deputy Secretary-cum-Director to the District Magistrate without having duly filled up save and except showing presence of population. Apart from this, its genuineness also appears to be matter of consideration as the same was sent requiring report in accordance thereof from the District Magistrate disclosing the intention of the State Government for declaring Benipur Nagar Parishad. It contains an endorsement by the District Magistrate requiring report on all aspects which the proforma contains from lowest level. 9. The aforesaid Annexure-3 discloses population as per last census as 2,03000/- and in proportion thereof 48,000/- were shown as depending upon non agricultural occupation. This Annexure-3 has been taken for consideration to decide point no.2 which is fully controverted after going through Annexure-C of the counter affidavit filed by the State which happens to be letter No. 1691 dated 24.10.2008 sent by BDO, Benipur to District Magistrate. After going through the same, it is evident that the BDO categorically stated the strength of population to be covered under scheme as per last census 62,203 out of which 48,000 happens to be based upon non agricultural occupation. On this score it is better to incorporate Section-3 of the Bihar Municipal Act:- 8 “ 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, density of population there in, 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, 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. Explanation.- “revenue generated for the local administration” shall not include- (a) taxes, if any, distributed to the Municipality by the State Government, (b) loans and grants from the State Government, and (c) loans and grants from the Central Government of institution or other source. (2) The State Government shall, by notification, declare an area specified as- (i) a larger urban area to be a city, (ii) a medium urban area to be a town, and (iii) a small town or transitional area to be a Nagar Panchayat or urban growth centre (3) Notwithstanding anything contained in sub-section (1), the State Government may, by notification, determine separate conditions, to constitute any hill area, pilgrim centre, tourist centre or mandi as a municipal area. 10. The only requirement happens to be that 75 per cent or more of the total population as per last census should be non agricultural population. Unchallenged Annexure-C discloses presence of total population 62,203/- out of which 48000/- happens to be non agricultural population which certainly covers 9 more than 75 per cent and therefore the finding of the learned single Judge with regard to point ‘B’ is not found to be supported with the relevant correct facts and figures and that happens to be reason behind deciding the same contrary thereof. 11. Now coming to the point ‘C’. For the purpose of self governance, the legislature found it expedient to amend the Constitution and brought Chapter IX and IX-A relating to establishment of Panchayat as well as Municipality for its full application. So far, as the present controversy is concerned, it relates with Chapter IX-A, the Municipality and accordingly its establishment which has been recognized and categorized under Article 243Q has to be looked into and for better appreciation the same is reproduced here; “243Q. Constitution of Municipalities.- (1) There shall be constituted in every State:- (a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area. (b) a Municipal Council for a smaller urban area; and (c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part: Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that are and such other factors as he may deem fit, by public notification, specify to be an industrial township. (2) In this article, ‘a transitional area’, ‘a smaller urban area’ or ‘a larger urban area’ means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non- agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part. 10 12. After going through Article 243Q, it is evident that three types of establishment has been identified in Nagar Panchayat (by whatever name called) (a) for transitional area that means to say a rural area transforming into an urban area, (b) Municipal Council of smaller urban area and (c ) Municipal Corporation for larger urban area. 13. The aforesaid Constitutional provision does not properly explain its constitution, formation, therefore it was taken to task by having redraft of Municipal Act by introducing Bihar Municipal Act, 2007 which was brought into existence under the guise of Chapter IX-A of the Constitution prescribing the methodology for Constitution, declaration either of the category of Municipality. 14. The learned single Judge had dealt with the deficiencies from paragraph-37 to 39 of the judgment impugned catenating one by one in cathy manner which will be evident from the discussions hereinafter. 15. So far as identification of Benipur Nagar Parishad as promulgated by the State Government is concerned, under paragraph-37 it has been held that 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. In this regard it is pertinent to note that there is no identification of Nagar Parishad rather as disclosed above Article 243Q identifies Nagar Panchayat (by whatever name called) for a transitional area, Municipal Council for smaller area, a Municipal Corporation for a larger urban area. The Notification does not come within category (b) and (c) and so it certainly happens to be under category (a), Nagar Panchayat or be 11 identified by whatever name may be for transitional area. When the aforesaid category is taken together with Section-3 of the Bihar Municipal Act, 2007 , it is evident that the Bihar Municipal Act fell in toe therewith identifying similar categorization of the institution in the background of population. (a) in the case of a larger urban area, is 2 Lacs or more (b) in the case of medium urban area 40 thousand or more but less than 2 Lacs and (c) in the case of a transitional area, i.e., small town, is 12 thousand and more but not more than 40 thousand. 16. The aforesaid categorization has further been magnified under Section-7 of the Act which runs as follows; “ 7. Classification of Municipal areas.- The State Government may, for the purpose of application of the provisions of this Act, classify any municipal area on the basis of the population as ascertained at the last preceding census of which the relevant figures have been published, as- (a) a larger urban area having population above 2,00,000 (b) a medium urban area of- Class’ A’ municipal area having population above 1,50,000 but not exceeding 2,00,000, or Class ‘B’ municipal area having population above 1,00,000 but not exceeding 1,50,000 or Class ‘C’ municipal area having population above 40,000 but not exceeding 1,00,000 and (c) transitional small urban area having population above 12,000 but not exceeding 40,000: Provided that for the purpose of classification of municipal areas in any hill area, pilgrim centre, tourist centre or mandi town, the government may, by notification, determine separate size of population for each class of such municipal areas. 17. Therefore, by application of Bihar Municipal Act, 2007, the categorization made through Article 243Q has been applied in proportion to the population gathered under the notified area. 12 18. As discussed under point no.B, the population happens to be 62203/- so certainly it comes under medium urban area. 19. How far the aforesaid categorization barricades its identity, save and except on the point of population, nothing more has been prescribed. That means to say whenever the population crosses as per prescribed limit, there happens to be transformation of the establishment from one category to another. In the present case, as disclosed above and evident from Annexure-‘C’, the population covered under Benipur Nagar Parishad happens to be 62203/- and the aforesaid population crosses the limit prescribed under Clause ‘C’. 20. Whenever such transformation is being made, there happens to be some sort of obligation imposed upon the State Government as prescribed under Section 4 of the Act where-under the Notification has to be published in the official gazette as well as at least in two leading newspapers out of which one should be vernacular as well as it should also be pasted at conspicuous places and at the notice Board of the office of the Collector of the District and at the office of Municipality, in case Municipality is running as well as at other public places if the State Government so desires. It should also be promulgated throughout the specified local area or through any other publicity media and then thereafter, if any objection is filed within a month from the date of such publication, then the State Government will consider the aforesaid objection and after disposing it off as per section-5 of the Act, the area will be notified as per Section-6 of the Act. 13 21. The learned single Judge had drew adverse inference taking into account the fact that the State Government did not comply with the mandatory provision prescribed under Section-4 of the Bihar Municipal Act. The aforesaid finding appears to be negativated from Annexure-4 (g) of the counter affidavit which clearly discloses publication of Notification apart from in official gazette in three news papers, Hindustan, Dainik Jagran and Qaumi Tanzeem of dated 26.1.2009, 27.1.2009 and 29.1.2009 as well as adoption of other means for propagating the aforesaid intention. The aforesaid event is further supported with Annexure-I which happens to be objection petition filed by the objectors beyond the period of one month as prescribed under Section 5 of the Bihar Municipal Act, 2007 disclosing the fact that they have learnt about the intention of the State Government through notice published in the news papers. Thus, the aforesaid two annexures are sufficient to infer that there has been compliance of requirement of Section 4 of the Bihar Municipal Act, 2007. Because of the fact that whatever objections were put, they were put beyond the period of one month, the permissive time, therefore the State Government was not under obligation to consider though it considered. 22. The learned single Judge in paragraph-38 of the judgment had incorporated that no consent was taken by the Gram Panchayat. The aforesaid finding is negativated from Annexure-1 of I.A. No.3421 of 2010 wherefrom it is evident that on 16.07.2008 there was meeting of Panchayat Samiti, Benipur wherein agenda no.4 was discussed with regard to the present controversy and further it was resolved that for declaration of Benipur Nagar Parishad, a request be made to the 14 authority concerned consisting of the areas, Havimauar, Kanthudih, Madhopur, Madhopur, Ghataura, Kajiyana, Bahera, Majhaura, Ashapur, Nawada, Benipur, Gherukh, Balha, Pauhatti and Mahinam. 23. After discussing and analyzing annexures so placed as well as taking into account the relevant provisions of law as discussed above, it is found and held that the learned single Judge had not properly considered it in right perspective as well as failed to take notice thereof. In the result, we find merit in this Letters Patent Appeal and these are accordingly allowed. Consequent thereupon, the judgment of the learned single Judge is set aside. (Prakash Chandra Verma, J.) (Aditya Kumar Trivedi, J.) Patna High Court The 13th day of July 2011 Md. Perwez Alam/ AFR