IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.249 of 2009 ASHOK MISHRA . Versus THE STATE OF BIHAR & ORS . For the Petitioner: Mr. Vinay Ranjan, Adv. For Election Commission: Mr. R.S. Pradhan, Sr. Adv. Mr. Sanjeev Nikesh, Adv. ----------- 13/ 02/05/2011 Heard learned counsel for the petitioner, the State and the State Election Commission. The petitioner is aggrieved by the conversion of the Gram Panchayat Goura-3 and 4 by amalgamation with four other Panchayats into the Teghra Nagar Panchayat. Learned counsel for the petitioner submits that the draft notification under Section 4 of the Bihar Municipal Act, 2007 (hereinafter referred to as the Act) was published on 28.9.2008. Objections were filed by the petitioner under Section 5 of the Act on 23.10.2008. The final notification dated 11.11.2008 under Section 6 of the Act has been published without disposing the objections. The final notification issued under Section-6 of the Act thus stands vitiated. The final notification dated 11.11.2008 may be called and quashed. The writ petition acknowledges compliance with the provisions of Section 4 of the Act. There is no specific assertion for non compliance with Section 5 of the Act. The only pleading in this regard is at 2 paragraph-14 that it was the mandate of law to consider the objections. The Court finds no reason to arrive at a conclusion that the objections never came to be considered. There is a statutory presumption under Section 114 (e) of the Indian Evidence Act that official acts were duly performed. The onus to rebut it was on the petitioner. In (M/s. Larsen and Toubro Ltd. etc. v. State of Gujarat and others ) A.I.R. 1998 SC 1608 it has been held at paragraph 10 as follows :- “10. In the absence of any allegation that Rule 3 had not been complied and there being no particulars in respect of non-compliance of Rule 4 also, it is difficult to see as to how the High Court could have reached the finding that statutory requirements contained in these Rules were not fulfilled before issuance of notification under Section 4 and declaration under Section 6 of the Act. High Court did not give any reason as to how it reached the conclusion that Rules 3 and 4 had not been complied in the face of the record of the case. Rather, it returned a finding which is unsustainable that it was "not possible on the basis of the material on record to hold that there was compliance with the Rules 3 and 4". The petitioner has relied upon an order of this Court in C.W.J.C. No.14585/09 that if the final notification did not mention that objections had been considered or that no objections had been filed, the final 3 notification shall stand vitiated. There can be no quarrel with the said proposition. But in each case the foundational facts shall have to be clearly laid out. Learned counsel for the petitioner strenuously sought to persuade the Court that a prayer had been made to call for the original notification. If the notification was an official document to which the officials were privy only and to which the citizens had no access, if satisfied, the Court could have issued directions for its production. It is trite law that it is for a litigant to produce the document and which undoubtedly is a public document before the Court which he assails to enable the Court to appreciate the language of the document to test its validity. A document not before the Court cannot be quashed. The reason is explained in Surinder Singh v. Central Govt, (1986) 4 SCC 667 at paragraph 9 as follows :- “9…..The subsequent order of Shri Rajni Kant was challenged by the respondents and the High Court has quashed that order, although that order was not before the High Court as none of the parties filed the same. The respondents who had challenged the order of Shri Rajni Kant should have filed a copy of the order. In the absence of the order under challenge the High Court could not quash the same. Normally whenever an order of Government or some authority is 4 impugned before the High Court under Article 226 of the Constitution, the copy of the order must be produced before it. In the absence of the impugned order it would not be possible to ascertain the reasons which may have impelled the authority to pass the order. It is therefore improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution.” The final notification dated 11.11.2008 is not an official document to which the government functionaries alone are privy. Once it is published in the Gazette, it is a public document. The law stands well settled in that in a writ petition the primary evidence are documents. A person assailing any action under Article-226 of the Constitution is under a bounden duty to place all necessary evidence by way of documents in the writ petition to enable the Writ Court to adjudicate in the matter. A litigant cannot move this Court under Article-226 in a speculative manner and then require the Court to build up the case on his behalf and start collecting evidence. In (Bharat Singh and others v. State of Haryana and others) A.I.R. 1988 SC 2181 it has been held at paragraph 13 as under :- “13. ….In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove 5 such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter- affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable.” The writ petition was filed as far back as 5.1.2009 long after the publication of the final notification on 11.11.2008. The petitioner obtained interim orders on 19.3.2009 from this Court by which elections to the newly created Teghra Municipality was stayed. The writ petition was then adjourned on more than one date. It finally came to be dismissed for non- prosecution on 10.1.2011 when it was restored on 9.3.2011. The Court is satisfied that the petitioner had more than adequate opportunity to bring on record the final notification to establish the fundamental facts for 6 relief. Having not been vigilant, this Court finds no reason to grant him further indulgence. The interim order staying elections in the Nagar Panchayat is vacated. The writ application is dismissed. KC ( Navin Sinha, J.)