IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.677 of 2010 1. MANOJ RAI S/O SRI SURENDRA RAI R/O MOHALLA- MADHUBANI KALI PRASAD TOLA, P.S. KHAZANCHI HATT, DISTT.- PURNEA 2. SATYA NARAYAN PASWAN S/O LATE SHEOJI PASWAN R/O MOHALLA- IMLI TOLA, P.O. GULABBAG, P.S. PURNEA SADAR, DISTT.- PURNEA Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT AND HOUSING DEPTT., GOVT. OF BIHAR, PATNA 3. THE JOINT SECRETARY, URBAN DEVELOPMENT AND HOUSING DEPTT., GOVT. OF BIHAR, PATNA 4. THE DIRECTOR, URBAN DEVELOPMENT AND HOUSING DEPTT., GOVT. OF BIHAR, PATNA 5. THE DIVISIONAL COMMISSIONER, PURNEA DIVISION, PURNEA 6. THE DISTRICT MAGISTRATE, PURNEA, DISTT.- PURNEA 7. THE EXECUTIVE OFFICER, NAGAR PARISHAD, PURNEA, DISTT.- PURNEA 8. THE STATE ELECTION COMMISSION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA THROUGH THE STATE ELECTION COMMISSIONER 9. THE SECRETARY, THE STATE ELECTION COMMISSION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA with C.W.J.C No. 9377 of 2009 Jitendra Oraon s/o Late Kartik Oraon, resident of village- Hasda Kothi, P.O. Gulab Bagh, P.S.- Sadar, District- Purnea. Vrs. 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 Divisional Commissioner, Purnea. 5. The District Magistrate, Purnea. 6. The State Election Commission through its Secretary, Sone Bhawan, Birchand Patel Path,Patna. with C.W.J.C.No.9378 of 2009 Sunita Devi w/o Shri Ramesh Das, resident of village- Newa Lal Chowk , P.O. Batta Bazar, P.S. K.Hat Maranga, Block- East Purnea, District- Purnea. Versus. 2 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 Divisional Commissioner, Purnea. 5. The District Magistrate, Purnea. 6. The State Election Commission through its Secretary, Sone Bhawan, Birchand Patel Path,Patna. 7. Joint Secretary, Department of Urban and Housing Department, Govt. of Bihar, Patna. with C.W.J.C.No.9995 of 2009 Nirmala Devi w/o Shri Baikunth Yadav, resident of village- Belauri, P.O.- Belauri, P.S. Sadar, Mufasil, Block- East Purnea, District- Purnea. 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 Divisional Commissioner, Purnea. 5. The District Magistrate, Purnea. 6. The State Election Commission through its Secretary, Sone Bhawan, Birchand Patel Path,Patna. 7. Joint Secretary, Department of Urban and Housing Department, Govt. of Bihar, Patna. with C.W.J.C.No. 11737 of 2009 Sunil Kumar Singh s/o late Adhik Narayan Singh, resident of Mohalla- Shiv Puri Bhatta,P.S.- K.Hat Sahayak, District- Purnea. Versus. 1. The State of Bihar through the Secretary, Urban Development Department, Bihar, Patna. 2. The State Election Commission, Bihar, Sone Bhawan, 3rd Floor, Bir Chand Patel Road, Patna, through its Secretary. 3. The Secretary, State Election Commission, Bihar, Sone Bhawan, 3rd Floor, Bir Chand Patel Road, Patna. 4. The Commissioner, Purnea Division, Purnea. 5. The District Election Officer-cum- District Magistrate, Purnea. 6. The Deputy Collector, Incharge, General Section, Purnea. 7. The Deputy Development Commissioner, Purnea. 8. The Deputy Collector, land Reforms, Dhamdaha, Purnea. 9. The Tax Daroga, Nagar Parishad, Purnea. 10. The District Amin, Khas Mahal, Purnea. 11. The Amin Nagar Parishad, Purnea. 3 12. The Executive Officer, Nagar Parishad, Purnea. - --- For the Petitioner in : Mr.S.B.K.Manglam, Mr. Anamika Dubey d CWJC No. 677/10 and Mr. Nalin Kumar. For the State : Mr. Arjun Pd. Singh,A.C. to S.C.2 For the Commission : Mr. R.S.Pradhan,Sr.Adv., Mr.Nikesh Kumar and Mr.Rajeev Lochan For the Intervener : M/s Rajeev Roy, S.Arshad Alam and Gautam Kumar Yadav. For the Petitioner in CWJC No. 9377/09:M/s. Mahendra Prasad Gupta & Brajesh Kumar For the State : G.P.-6 For the Commission : Mr. Sanjeev Nikesh For the Intervener : Mr. Shamshad Alam For the Petitioner in CWJC No. 9378/09:Mr. Mahendra Pd.Gupta & Brajesh Kumar For the State : G.P.-3 For the Commission : Mr.Sanjeev Nikesh For the Petitioner in CWJC No. 9995/09 : M/s Mahendra Prasad Gupta and Brajesh Kumar. For the State : G.P. 4 For the Commission : Mr. Sanjeev Nikesh For the petitioner in CWJC No.11737/07 : Mr. Shamshad Alam and Mr. Sanjeev Kr. No.1. 4. 26.3.2010 The petitioners, in these writ applications, have challenged the Govt’s notification dated 26.5.2009 by which Purnea Municipal Council has been reconstituted by addition of six Gram Panchayats, consequence whereof being that the population now exceeds two lakhs , it is converted into Purnea Municipal Corporation. Thus, conversion of Municipal Council to Municipal Corporation is the challenge. State has filed a counter affidavit. Several interveners have intervened. Some have sought to support the petitioners and some have sought to oppose the petitioners. Interventions are allowed. 4 The moot question is whether exercise , as done by the State Government, is correct in law or not ? Heard all the parties and with their consent the writ applications are being disposed of at this stage itself. Mr. S.B.K.Manglam and Mr. Mahendra Prasad Gupta appearing for the petitioners in support of the writ petitions submit that the exercise, as conducted by the Government, is vitiated in fact and in law. In substance, the action of the State Government purporting to be an action under Section 8 of the Bihar Municipal Act, 2007 in taking six Gram Panchayats and adding it to the existing area of Purnea Municipal Council and then declaring the whole area to be Purnea Municipal Corporation is challenge. The legality and proprietary of such an action is , in question. Having considered the matter, in my view, for the reasons indicated hereafter, the writ petition must succeed and the action of the State must be quashed. By Constitution 73rd and 74th Amendment Acts, 1992, with effect from 1.6.1993, the Constitution was amended. Part IX and Part IX A to the Constitution was introduced. Part IX dealt with Panchayat and Part IX A dealt with Municipality. These two are now constitutionally established and recognized system of local self government. On close analysis of the provision of Part IX relating to Panchayat would show that Panchayats are in relation to villages or group of villages with powers, which could be conferred on them in 5 relation to matters, as mentioned in Schedule XI of the Constitution. When we come to Part IX A of the Constitution, which deals with Municipality in form of local self government, a reference to the provision therein, specially Article 243- Q, would show that Municipalities are to be constituted for urban area where there is pre dominance of non agricultural activities. The power authority and responsibility of Municipality are with reference to matters enumerated in Schedule XII of the Constitution. Thus, seen it would be evident that municipality covers urban or urbanized area leaving rural area for Panchayat. A reference to the aforesaid two Parts of the Constitution would show that Constitution by itself does not specifically define as to what would be a Panchayat or a Municipality but clearly indicates (Article 243-B) that there would e Panchayats at village, intermediate and district levels as per law made by the State and wherever required the population bases has to be taken as per last census [Article 243(f) ]. When we come to Part IXA, municipality the population, as per last census is to be taken into account wherever necessary and is accordingly provided in Article 243-P(g). Article 243Q provides for three tiers system of municipality. The smallest being transitional area from rural to urban area [Art. 243Q(1)(a)], which is referred to as the Nagar Panchayat. Then we have the smaller urban area, the Municipal Council and then the larger urban area, the Municipality Corporation. Thus, seen there is six tiers self government institutions 6 ascending from, village Panchayat, intermediate Panchayat to district level Panchayats under Part IX of the Constitution and then municipality in the shape of Nagar Panchayat ,the transitional area, then the Municipal Council followed by the Municipal Corporation under Part IXA of the Constitution. The first three are basically rural and later three urbanized areas. The determining factor of rural and urbanized area is dependent on non agricultural activities .The extent of which is left to the State Government to determine by law. At present we have two set of local laws governing respective fields. The first is Bihar Panchayat Raj Act, 2006 and the second is Bihar Municipal Act, 2007. In these Acts, statutory definition and criteria are laid down for the aforesaid six tiers self government institutions. Under Bihar Panchayat Raj Act, 2006 (hereinafter referred to as ‘ Panchayat Act’) Section 2 (w) Panchayat is defined as institution of self government constituted under Article 243B of the Constitution of India for rural areas . Village, as seen above, which is not defined in the relative constitutional provision is defined under this Act by Section 2(am) to make all revenue village or group of adjoining revenue villages or part thereof falling within a Gram Panchayat. The three tiers of the self government institutions under this Act are the Gram Panchayat , which comprises of villages . A Gram Panchayat is to have population of about seven thousand . It is to be notified by the District Magistrate by notification in the District Gazette by virtue of Section 11 of the said Act. Proviso to sub-section 7 (1) of Section 11 is of importance for the present case and is quoted hereunder : “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.” From the above, it would be seen that though the District Magistrate has power to include or exclude any area or any village from a Gram Panchayat, it must be done after consultation with the Gram Panchayat concerned. It would also be seen that the local area of a Gram Panchayat would be a village. The second tier of this institution of self government is Panchayat Samiti. Section 34 of the Act provides that there shall be a Panchayat Samiti for every Block excluding the area of municipality or cantonment . Block is an area in the district as may be constituted by the State Government to be a Block. Then, the third tier is the Zila Parishad, which by virtue of Section 62 of the Act is for the entire district excluding municipal and cantonment areas . 8 Thus, under this Panchayat Act, it would be seen that excluding urban area for the rural area in a district, there is a Gram Panchayat at village level, Panchayat Samiti at Block level and Zila Parishad at district level but one common thread that runs through is that they are essentially rural areas. Now we come to the Bihar Municipal Act, 2007 (hereinafter referred to as ‘Municipal Act’ ). Section 2(66) defined Municipality to mean institution of self government , as referred to under Article 243Q of the Constitution and includes Nagar Panchayat, Municipal Council and Municipal Corporation. If we refer to first proviso to Section 3 of the Municipal Act, it clearly provides for three such classes of Municipality depending on urban population. The first is larger urban area having population in excess of two lakhs, which would be seen with reference to Section 7 read with Section 13 to be Municipal Corporation. Then there is medium urban area of population between 40,000 but less than two lakhs, which would be with reference to Section 7 read with Section 13 be Municipal Council and then would be the transitional area i.e. small town of population between 12,000 and 40,000, which is with reference to Section 7 read with Section 13 the Nagar Panchayat. If one reconcile this scheme with the constitutional scheme, it would be seen that the transitional area i.e. Nagar Panchayat is contemplated under Article 243Q of the Constitution , as the area, which is transiting from rural area to urban area. What is of importance is here that when Section 3 of the Municipal Act talks of urban area or transitional area, the 9 second proviso to Section 3 gives the criteria thereof . It is quoted hereunder : “ Provided further that the non –agricultural population in all cases shall be seventy five percent or more .” From this we get a guidelines for both the Acts and urban area, transitional area, as contemplated under the Municipality Act would be a local area where non agricultural population in all cases is more than seventy five per cent or more. Like Panchayat Act, under the Municipal Act , there are elaborate provisions for constituting the municipality of any kind i.e. Municipal Corporation, the Municipal Council or Nagar Panchayat. First the State Government has to declare its intention to specify any such local area to be larger urban area or medium urban area or transitional area. After considering various para meters given in Section 3 of the Municipal Act and then by publication of notification in the manner under Section 4, it has to convey its intention to the inhabitants of the local area concerned. By virtue of Section 5 of the Municipal Act , inhabitants of any city (larger urban area), town (smaller urban area) or Nagar Panchayat ( transitional area) may object to the State Government within one month of notification issued under Section 4 and the State Government is obliged to consider the same. After expiry of one month of notification under Section 4 and consideration of objections, Section 6 of the Municipal Act provides for government to issue notification constituting specified municipality for such municipal area being Municipal 10 Corporation for larger urban area (city), Municipal Council for small urban area(town) and Nagar Panchayat for transitional area. Section 8 and its proviso are of some importance to the present litigation. The first two provisos of Section 8 are quoted hereunder : “Provided that the procedure laid down for the constitution of a municipal area under this Act shall be followed mutatis mutandis in each such case: Provided further that the views of the Municipality affected by any such notification shall be invited by the State Government within such time as may be specified in the notification, and the State Government shall consider the views of the Municipality as aforesaid before a final declaration is made.” Section 8 deals with power to abolish or alter limits of municipal area . It confers power on the State Government to , by notification, alter the local area for municipality . The first proviso, as referred above clearly lays down the prescription for constitution of Municipal Area i.e. Sections 3,4,5 and 6 would accordingly apply for this exercise as well. In addition to the above, by virtue of second proviso to Section 8, it has been provided that the views of the municipality affected by any such action shall be invited by the State Government and the State Government shall consider the views of the municipality before final declaration regarding alteration is given effect. Thus seen, reading the provisions of the Constitution, 11 the Panchayat Act and the Municipal Act, it would be seen that there is three tiers self government institutions for rural area and a three tiers self government institutions for urban area. Urban area being area where population of non agricultural nature exceeds seventy five per cent. There is a scheme of systematic upgradation inherent in the scheme but also is inherent that a rural area would remain a rural area till the population becomes urbanized. It is also inherent in the scheme that before there is alteration of a Gram Panchayat in any manner, the Gram Panchayat concerned has to be consulted by virtue of proviso to Section 11 of the Panchayat Act and before alteration of a municipality of any kind, consideration of its views are mandatory by virtue of second proviso to Section 8 of the Municipal Act. In my view, there is yet another inherent restriction. A rural area will continue to be a rural area and has to be governed as such unless it is shown that non agricultural population has increased therein to make it an urban area , as defined by second proviso to Section 3 of the municipal Act. In between it will pass through transitional area [Art. 243Q(1)(a)]. Now, coming to the facts of the present case and to the analysis what went wrong with the governmental action. The admitted fact is that what the government did was , it accepted the recommendation of the District Magistrate-cum- Collector, Purnea that by clubbing six Gram Panchayats ( which are exclusively villages) and hence rural areas to the pre existing local area of Purnea Municipal Council, which is urban area, the total population now 12 exceeds two lakhs and thus the Municipal Council with this enlarged area can be declared a Municipal Corporation under the Municipal Act. It is also not disputed in the counter affidavit that that while making such a recommendation, any one had consulted or taken the views of the Gram Panchayat, as is mandatorily provided under first proviso to Section 11 of the Panchayat Act. It is also not in dispute that no notification was issued by the District Magistrate , as provided by Section 11 of the Panchayat Act, taking out the village from the ambit of Panchayat Act or taking out the Gram Panchayat itself from the ambit of the Panchayat Act. It is also not in dispute that, as provided by second proviso to Section 8 of the Municipal Act, the State Government did not invite the views of the municipality i.e. Purnea Municipal Council with regard to proposed change. It is also not in dispute that all that was done was six groups of villages (Gram Panchayats), which continued to be essentially rural area were picked up on population basis and added to a medium urban area, so as to make the total population exceed two lakhs and on that footing declared the constitution Purnea Municipal Corporation superseding or replacing Purnea Municipal Council and abolishing six of Gram Panchayats as well . In my view, these were fatal flaws committed by the government. Calling for objections and considering the objections, both from the Gram Panchayat concerned and the Municipal Council concerned was mandatory requirement, which was not at all acted upon. It is not a case of an emergent action required to be taken where a post decisional hearing could be done. 13 Further, there is another fatal mistake. In the report of the District Magistrate, Purnea, himself , he has clearly stated that the percentage of non agricultural population after such reconstitution of the larger area is 60%. Thus, the mandatory requirement of second proviso to Section 3 of the Municipal Act is not at all satisfied even if all other mistakes are condoned which provides that the non agricultural population must be 75% or more. Here I may notice a contention raised in the counter affidavit of the State. State has annexed the recommendation of the District Magistrate to the State Government, which clearly gives the figure of the new area. It gives the population of the erstwhile Purnea Municipal Council at 1,71,687 and that of the six Gram Panchayats together at 35,792,thus, totaling to 2,07,479. In the said report it is stated that non agricultural based population is now 1,24,487. It is then stated in the report that the total non agriculture based population is thus now 60%. If this report is accepted, in its entirety ,it would be seen that it fells foul with the second proviso to Section 3 of the Municipal Act. Apparently, realizing this mistake but being unable to correct these figures, a subsequent letter of the Executive Officer of the Municipal Council is appended whereby a bold statement is made that the report of the District Magistrate mistakenly mentioned non agricultural population at 60%. It should be read as 75%. This presumably is to satisfy the second proviso to Section 3 of the Municipal Act. This is wrong. If we divide 1,24,487, which is the non agricultural based population by total population of 2,07,479, the 14 result is 59.99%, which is 60% as per the original report and not 75%. The correction, as sought , to be made to over come statutory restriction is wrong. Thus, even on this count, the governmental action must fail. There is also yet another default. As seen from the scheme, as contemplated under the Constitution, the Panchayat Act and the Municipal Act there is a transitional scheme whereby Panchayat under Panchayat Act would transit to Nagar Panchayat under Municipal Act , then to Municipal Council and then to Corporation. Adding various Panchayats, which are essentially rural area to urban or urbanized area is not contemplated till there is shift of population from agriculture to non agriculture. It is for this that transitional area in the shape of Nagar Panchayat under Municipal Act is provided keeping in view Art.243Q(1)(a) of the Constitution. If what government did is to be countenanced or permitted then they could carve out a large area all consisting of villages having a total population exceeding 40,000 and notwithstanding nature of population therein declare it to be a Municipal Council. Thus essentially a rural area could be converted into a medium urban area without change in the nature of population therein . That would be doing something indirectly, which is prohibited directly . That would be totally destructive of the Constitutional and statutory scheme contained in Part IX and part IXA of the Constitution and the corresponding Panchayat Act and the Municipal Act. It cannot be done under the scheme of the Constitution and the Acts made thereunder. 15 Thus seen the entire exercise of the State Government culminating in the Government notification dated 26.5.2009 cannot be sustained and the notification aforesaid has to be declared illegal and contrary to law and in violation thereof. Consequently all steps taken for holding elections of the newly notified Municipal Corporation is void, as the creation of Corporation itself has been held to be illegal and unenforceable . Purnea Municipal Council and the six Gram Panchayats concerned would continue to function as before as if no notification, as impugned, was ever issued. With the aforesaid findings, observations and directions the writ petitions are allowed. Singh (Navaniti Prasad Singh, J.)