IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 10074 of 2009 Neelam Devi, wife of Sri Arjun Mahto, resident of village – Phulwaria, P S – Phulwaria, District – Begusarai - Petitioner Versus 1 The State of Bihar through the Principal Secretary, Urban Development and Housing Development Department, Government of Bihar, Patna 2 The District Magistrate, Begusarai 3 The Additional Collector (Revenue), Begusarai 4 The Sub-Divisional Officer, Teghra Sub-Division, District – Begusarai 5 The Circle Officer –cum- Block Development Officer, Teghra Circle/Block, Teghra, District – Begusarai 6 The Joint Secretary, Urban Development Department, Bihar, Patna - Respondents *** For the petitioner : Mr Vinay Ranjan, Advocate For the S t a t e : M/s Sanjay Kumar Sinha, SC 13 & Nityanand Mishra, AC to SC 13 For the intervener respondents: M/s Sharad Kr Sinha & Arbind Kumar Sharma, Advocates *** 4 23.04.2010 The petitioner, in this writ petition, is the Mukhiya of Phulwaria Gram Panchayat in the district of Begusarai. She challenges the Governmental action and the Governmental notification constituting Barauni Nagar Parishad under the provisions of the Bihar Municipal Act, 2007. State Government has constituted the new Municipal Council named as Barauni Municipal Council by taking some parts of some village Panchayats including petitioner’s and clubbing them together so that the total population of those parts of Gram Panchayats put together is 58,628. Thus, being more than 40 thousand, it has constituted the Municipal Council. State has filed counter affidavit, application for vacating stay and supplementary counter affidavit. Interveners have appeared and sought to oppose the writ petition. They have filed counter affidavit, supplementary counter affidavit. Rejoinder has been filed. The 2 pleadings being complete, with consent of parties, the writ petition was finally heard for disposal at this stage itself especially because, consequent to the constitution of the Barauni Nagar Parishad, State had proceeded to notify elections for the newly constituted Nagar Parishad which, by interim order of this Court, had been stayed. Thus, a case of urgent hearing. The principal challenge to the actions and the notification may be noted as under : (1) that before any part of any Gram Panchayat is taken out of the Gram Panchayat as mandatorily provided under proviso to sub-section (1) of Section 11 of the Bihar Panchayat Raj Act, 2006, the views of the Gram Panchayat have to be taken by the District Magistrate and that not having been done, the exclusion of the areas from the existing Gram Panchayats was invalid. (2) Section 3 of the Bihar Municipal Act 2007 and, in particular, second proviso thereof provides that in all cases of constitution of Municipality, the non- agricultural population must be 75% or more which is not satisfied as all areas were part of duly notified Gram 3 Panchayats which are rural areas having pre-dominantly agricultural population and if those areas are clubbed together, they cannot become urban areas where non-agricultural population would be more than 75%. (3) As required by Section 5 of the Bihar Municipal Act, once draft notifications are issued and objections filed, the objections must be considered by the State and the final notification issued under Section 6 of Municipal Act would, thereafter, be issued. This was not done and there was no consideration of objections. Thus seen, principally the challenge was based on population figure which is the basis for the exercise of power under both the Bihar Panchayat Raj Act and the Bihar Municipal Act. State and the interveners were thus required to bring on record figures and statistics to justify such action. It may be noted that as per the statutory provisions, which would be indicated hereinafter, it is not mere subjective opinion of the State that matters because that opinion has to be dependent on objective facts and figures as statutorily provided. Thus, these facts and figures had to be brought on record by the interveners and the respondent- State to justify the recommendation as made by the District Magistrate – 4 cum- Collector, Begusarai to the State and the considerations of those facts and figures of the State justify their action in notifying the formation of the new Municipal Council. Regrettably, inspite of the fact that the writ petition was filed on 19.08.2009 and adjourned on 20.08.2009 for filing counter affidavit and further adjourned with due notice of the issue involved on 13.01.2010, no such figures were brought on record by the State even though there were specific averments by the petitioner to the contrary. It may be noted that on 16.04.2010, this case was taken up and parties sought time to produce from the records of the State and the Collector the figures which was the foundation for this declaration. Nothing has been produced even today either by the respondents or by the interveners except a report of the Collector initially sent to the State making bald assertions without figures and without disclosing the basis of those figures. It is in this perspective, the Court is to decide about validity of the State action. Before proceeding further, I must refer to the constitutional scheme which is followed by the Statute that is the Bihar Panchayat Raj Act, 2006 and the Bihar Municipal Act, 2007. 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, 5 which could be conferred on them in 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 ascending from, village Panchayat, intermediate Panchayat to district level Panchayats under Part IX of the Constitution and then municipality 6 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 sets 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 (1) of Section 11 is of importance for the present case and is quoted hereunder : “11.Declaration of Gram Panchayat Area-(1) Subject to 7 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. 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 8 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 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 guideline for both the Acts and urban 9 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 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 10 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. 11 Thus seen, reading the provisions of the Constitution, 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)]. To this, I would add one other aspect. If we refer to Article- 243 (f) of the Constitution, it refers to population and states that wherever population is the basis, it has to be as per the last published census which, for the purposes of the present case, would be the 2001 census that is so far as Panchayats are concerned and similar, being the provision in Article 243 P (g), so far as Municipalities are concerned. Keeping this in mind, first if we refer second proviso to Section 3 of the Municipal Act, as quoted above, it would be seen that a Municipality in the shape of Nagar 12 Panchayat, Municipal Council or Municipal Corporation can only be created where population is urbanised that is having more than 75% non- agricultural population and not otherwise as a consequence whereof wherever the population and population means as per last published census is less than 75% non-agricultural, that would be covered by the Panchayat Raj Act and would be constituted as Panchayats, either Gram Panchayat, Panchayat Samiti or Zila Parishad. This is the distinction which the Municipal Act, the Panchayat Act read with the constitutional provision makes as between urban and rural areas. The second facet, I would like to point out, is the emphasis on last census. The moment, if we refer to Section 2, sub-section (74) of the Municipal Act, here again we would find a reference of population meaning population as per last preceding census. Now this leads to one conclusion that notwithstanding march of time, since the last census is published as all jurisdictions are fixed on last census, those jurisdictions would not change or alter till figures are published for the next census. Thus seen, normally the exercise of reconstitution or migration from Panchayats to Municipalities can only take place at intervals of 10 years. The reason is simple. When a Gram Panchayat or a Panchayat Samiti or a Zila Parishad is constituted, they are constituted of rural areas as per last census. Notwithstanding passage of time for the 10 years upto the next census, the census figures do not change and if they do not change then rural area would remain a rural area and an urban area would remain an urban area. Rural area would not, by passage of time without change in figures of census, migrate to urban areas. Now we come to the facts of the present case. State has not 13 brought a chit of paper on record to show that in terms of the proviso to sub-section (1) of Section 11 of the Panchayat Raj Act, the Collector – cum- District Magistrate, Begusarai had any consultation with the Gram Panchayats whose territorial areas were being truncated or cut. That is a mandatory requirement to first denotify areas of Gram Panchayat to constitute a new area to Municipality especially when parts of Gram Panchayat are being taken out. That may not be so where the entire Gram Panchayat is taken out. Here, admittedly, parts of Gram Panchayat were taken out without consultation with the Gram Panchayats. This is the first statutory flaw committed by the State. Then we come to the more substantive attack. Petitioner has specifically stated that what has been done is parts of Gram Panchayat (rural areas) taken, put together in such a manner that the total population now exceeds 40 thousand, thus, constituted Municipal Council escaping over provisions of the transitional area of Nagar Panchayat. The exercise, it is pointed out, was mala fide done to avoid creation of Nagar Panchayat as a transitional area where there is transit from rural to urban area. It is then submitted that areas which were essentially rural meaning thereby essentially agricultural population how it suddenly became pre-dominantly non-agricultural population with no change in census. The census remains 2001 census. It is because of this reason, the State was required to file figures to establish the bald statement of their Collector –cum- District Magistrate, Begusarai that the non-agricultural population was 75% or more only to satisfy the second proviso to Section 3 of the Municipal Act. Neither the interveners could produce those figures nor the State could bring on record anything to justify that bald statement. To the contrary, 14 petitioner got some figures from the Block Development Officer, Teghra, the correctness of which State challenges but State does not produce any figure of its own. Petitioner then, as far back as in October 2009, made due applications under Right to Information Act seeking facts and figures in relation to the newly created Barauni Municipal Council in respect of areas covered thereof. They were not supplied. Petitioner was supplied of all other information but the relevant information. Thus seen, all efforts to bring on record the basic relevant figure which confers the jurisdiction on the State to act has been withheld from the Court inspite of specific challenge. I have no option but to draw adverse inference in this regard as against the State. I, accordingly, have to hold that State in fact has no figures to justify as per the published 2001 census that the non-agricultural population of the newly constituted Barauni Municipal Council is 75% or more. If that be so then the second proviso to Section 3 of the Municipal Act is not satisfied. That is a pre-condition for exercise of power under the Municipal Act for constituting a Municipal area. That being so, it is fatal to the entire exercise as done by the State. The learned counsel for the petitioner also points out a very anomalous situation. He points out that the entire Barauni Industrial Area consisting of the Barauni Thermal Power Station, the fertiliser factory, the Indian Oil Refinery, its townships, which are thoroughly urbanised, continue to be Gram Panchayats while parts of petitioner’s Gram Panchayat are taken and notified to be Municipal Council. It is for the State to introspect in this regard. Though, in view of the above, I need not advert to other contentions but I must just note some arguments which were made. One 15 of them was with regard to non-consideration of objections. Petitioner has annexed with her writ petition copies of representation against proposed action sent to the District Magistrate, Begusarai, the Divisional Commissioner, Munger under which Begusarai falls, the Secretary, Department of Urban Development and Housing Development, Government of Bihar. These representations were sent under Speed Post which is Registered Post as well. In the counter affidavit, State, in paragraph-10 thereof, states that all objections as were made were duly considered and disposed of and in support thereof, they have annexed ordersheets of the Subdivisional Officer, Teghra. In the subsequent affidavit, State makes a bald statement that State had not received any objection and, thus, there was no question of any consideration required. This shows total non-application of mind. The objections, which have been said to be disposed of by the Subdivisional Officer, Teghra, are objections subsequent to the notification and are objections in relation to constitution of wards in the newly constituted Barauni Municipal Council. What happened to the several representations filed before the Collector, the Divisional Commissioner and the Secretary, Government of Bihar soon after the draft notification was issued, is any body’s guess. There are other submissions as well on behalf of petitioner which I need not discuss in view of the finding as recorded above. In the result, the writ application is allowed. The notification of the State Government dated 20.05.2009 constituting Barauni Nagar Parishad (Barauni Municipal Council) is quashed. Consequence would be that the existing Gram Panchayats, as before, would continue to operate as if their areas were not altered and amended. 16 M.E.H./ (Navaniti Prasad Singh)