IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13300 of 2011 1. Rabindra Choudhary S/O Late Sitablal Choudhary R/O Vill.- Ganjpar, P.O. + P.S.- Ekma , Distt.- Saran At Chapra 2. Abida Khatun W/O Shri Jakir Hussain R/O Vill.- Hansrajpur Gopali, P.O. + P.S.- Ekma , Distt.- Saran At Chapra 3. Jhumani Devi S/O Shri Parmeshwar Manjhi R/O Vill + P.O.+ P..S- Ekma, Distt.- Saran At Chapra. . . . . . Petitioners. Versus 1. The State Of Bihar 2. The Commissioner-Cum-Secretary, Department of Urban Development Govt. Of Bihar, Patna 3. The Commissioner-Cum-Secretary, Department Of Panchayati Raj Govt. Of Bihar, Patna 4. The District Magistrate-Cum-District Returning Officer 9municipal) Saran At Chapra 5. The Additional Collector-Cum-Deputy Returning Officer (Municipal), Saran At Chapra 6. The Deputy Development Commissioner, Saran At Chapra 7. The Sub-Divisional Officer, Saran At Chapra 8. The Block Development Officer Block- Ekma, Distt.- Saran At Chapra 9. The Circle Officer, Block- Ekma, Distt.- Saran At Chapra 10. The State Election Commission, Bihar, Patna Represented Through Its Secretary, The State Election Commission Sone Bhawan, 3rd Floor, Veer Chand Patel Path, Patna 11. The Secretary, The Stae Election Commission Sone Bhawan, 3rd Floor, Veer Chand Patel Path, Patna. . . . . . Respondents. For the Petitioner : Mr. S.P. Srivastava, Adv. For the State : Mr. Prahalad Kumar Bhagat, G.P.13 For the Commission : Mr. Sanjeev Nikesh, Adv. ---------------------------------- 2/ 02.09.2011 Heard learned counsel for the parties. 2. The petitioners pray for quashing the letter dated 08.07.2011, bearing no. Vidhi 60-75/2011-7853, contained in Annexure-4, issued by respondent no.11, Secretary, State Election Commission, as well as notification dated 13.07.2011, contained in Memo no. 2004 (Annexure-3) issued under the signature of respondent no.4, by which process for preparation of voter list etc. for general election and constitution of Ekma Bazar Nagar 2 Panchayat has been initiated in complete defiance of Sections 11 and 14 of the Bihar Panchayat Raj Act, 2006. 3. The petitioner nos. 1, 2 and 3 are Mukhia of Bharhopur Gram Panchayat Raj, Hansrajpur Gram Panchayat and Ekam Raj Gram Panchayat respectively in the district of Saran. The certificates were issued to them on 23.05.2011 and 24.05.2011 respectively under Rule 82 & 99 of Gram Panchayat Raj Rule, 2007 and even oath were administered on 25.06.2011 and 29.06.2011. 4. The petitioners assail the notification dated 08.07.2011, contained in Annexure-4, issued by, Secretary, State Election Commission (respondent no.11), as well as subsequent letter dated 13.07.2011, contained in Annexure-3, issued by District Magistrate-cum-District Returning Officer, Saran, whereby process for preparation of voter list etc. for general election and constitution of Ekma Bazar Nagar Panchayat has been initiated. 5. The petitioners state the impugned letters dated 08.07.2011 and 13.07.2011 issued by respondent nos.11 and 4 respectively are violative of Sections 11, 14 and 160 of the Bihar Panchayat Raj Act as well as Sections 4, 5 and 6 of the Bihar Municipal Act, 2007. 6. Before I take up the issue involved in this case, it would be relevant to notice the facts of the case in brief: 7. The State Government vide notification dated 14.01.2010 constituted Ekma Bazar Nagar Panchayat by 3 amalgamating seven villages, which affected the Gram Panchayats of the petitioners. The aforesaid notification was challenged by one Rakesh Kumar Singh in C.W.J.C. No. 6509 of 2010. The petitioner therein took the plea that the notification does not fulfill the requirements of conversions into Nagar Panchayats under Section 3(1), 4 and 5 of the Bihar Municipal Act. Furthermore, majority of population was agrarian in nature and engaged in agricultural activity. It was also the case that no draft publication under Section 4 of the Act was made nor any objections thereto were considered. 8. The State filed counter affidavit controverting the claim of the petitioners. The learned Single Judge vide order dated 12.05.2011 dismissed the challenge to the notification and observed that the pleadings are vague and not specific and no particulars have been given. 9. In the instant writ application some of the grounds taken by the petitioners are similar to one, which were taken in C.W.J.C. No.6509 of 2010. The petitioners submit that Article 243(B) of the Constitution of India postulates constitution of Panchayat, while 243 E postulates that the term and tenure of Gram Panchayat shall be of five years. 10. The petitioners submit that Section 14 of the Bihar Panchayat Raj Act, 2006 states that every Gram Panchayat unless dissolved under any law for the time being in force shall continue for five years from the date appointed for its first meeting and no longer. The petitioners further submit that a District Magistrate 4 under Section 11 of Bihar Panchayat Raj Act, 2006 may, only after consultation with the Gram Panchayat concerned by a notification at any time include or exclude from any Gram Panchayat area, any village or part thereof and alter the name of the Gram Panchayat. The petitioners next submit that as per Section 160(1) of the Gram Panchayat Raj Act, 2006, a Gram Panchayat can be dissolved if it exceeds or abuses its power or is not competent to perform or persistently default in the performance of duties. 11. Counsel for the State as well as respondent nos. 10 and 11 submit that the petitioners have not made any categorical statement that consultation as required under Section 11 of the Gram Panchayat Raj Act, was not done. The respondents submit that as per Section 14, tenure of a Gram Panchayat would be of five years unless dissolved under any law for the time being in force. They submit that Section 160 detials the grounds on the basis of which Gram Panchayat can be dissolved even within five years. 12. I have heard the learned counsel for the petitioner and State as well as learned counsel for the State Election Commission. The petitioners have prayed for quashing the letter dated 08.07.2011 issued by Secretary, State Election Commission and letter dated 13.07.2011 issued by District Magistrate-cum- District Returning Officer, Municipal, Saran, whereby steps for preparation of voter list for general election and constitution of Ekma Bazar, Nagar Panchayat have been taken without challenging the notification dated 14.01.2010 issued by the State Government 5 under Section 3(1) of the Bihar Municipal Act constituting Ekma Bazar Nagar Panchayat by amalgamation of seven villages including the villages of the Gram Panchayats of which they represent as Mukhia. Once they have not challenged the constitution of Nagar Panchayat itself they cannot challenge the consequent electoral process for electing representatives to the Nagar Panchayat. The respondents are statutorily bound to initiate electoral process for constituting the Ekma Bazar Nagar Panchayat. On this ground alone itself that no challenge has been made by petitioners to the notification dated 14.01.2010 issued by the State Government under Section 3(1) of the Bihar Municipal Act notifying Ekma Bazar Nagar Panchayat, writ fails. 13. On the other hand, I find that challenge to final notification dated 14.01.2010 constituting Ekma Bazar Nagar Panchayat by amalgamation of seven villages was considered in C.W.J.C. No.6509 of 2010 and the same was dismissed. 14. I find that petitioners have made vague statement that Section 11 of Bihar Panchayat Raj Act, 2006 was not followed which requires consultation with the Gram Panchayat before including or excluding the area of Gram Panchayat. The petitioners have not made any specific assertion that such consultation did not take place. Moreover, it is apparent from the order dated 12.05.2011 passed in C.W.J.C. No.6509 of 2010 that the State in its counter affidavit stated that draft publication constituting Ekma Bazar Nagar Panchayat invited objections to its constitution. Thus, 6 the plea of the petitioners that Section 11 of the Gram Panchayat Act has not been followed is not correct. The petitioners next contended that as per section 14 of Panchayat Act, duration of Gram Panchayat would be of five years unless and until it is dissolved on any of the grounds enumerated in Section 160 of the Bihar Panchayat Raj Act. 15. Here the issue is entirely different as it is not the case of the petitioners that the Gram Panchayats have been dissolved on the allegation of misuse of process or abuse of jurisdiction. In the instant case, the origin of local self-government has undergone a change in character from one of the rural self- government to urban self-government in view of notification under Section 3(1) of the Bihar Municipal Act, 2007 notifying constitution of Ekma Bazar Nagar Panchayat on 14.01.2010. The notification was issued after Government was satisfied that all norms prescribed under Panchayat Act, 2000 and Municipal Act, 2007 stood duly satisfied. Further more the constitution of Nagar Panchayat has been uphold by a Bench of this Court. Thus, the arguments advanced by learned counsel for the petitioner is not tenable and applicable in facts of the case. 16. In the backdrop of above discussions, I find no merit in this application and it is, accordingly, dismissed. Uday/ (Samarendra Pratap Singh, J.)