IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7369 of 2009 Somaru Paswan, Son of Late Manki Paswan, resident of Village-Padarawa, P.S.-Jamhore, District-Aurangabad (Bihar). -Petitioner. VERSUS 1. The State of Bihar. 2. The Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna. 3. The Special Secretary/Urban Development and Housing Department, Government of Bihar, Patna. 4. The Divisional Commissioner, Magadh Division, Gaya (Bihar). 5. The District Magistrate, Aurangabad (Bihar). -Respondents. ----------- 05 30.10.2009 The petitioner is aggrieved by the action that is being proposed to the taken by the State Government on recommendations of the District Magistrate-cum-Collector, Aurangabad to declare Jamhore Nagar Panchayat out of 10 villages including Jamhore. A counter affidavit has been filed in which the basis of such action is disclosed. The petitioner submits that the statutory mandate has not been complied with nor are they fulfilled and as such the very initiation of the exercise in this regard is wholly without jurisdiction. Heard the parties including the person interested to intervene and oppose the writ petition and with their consent the writ petition is being disposed of at this stage itself. Petitioner contends that basically all the villages are agricultural and there is hardly any urbanization. Being Gram Panchayat the residents of these villages are entitled to various government incentives like employment under National Rural Employment Guarantee Yojana (NAREGA), Indira Aawas and other social benefit schemes. The total population of all the 10 revenue - 2 - Thanas which are proposed to be clubbed and notified as Nagar Panchayat is about 18400. They are all basically agriculturists. Though most of them may not have their own land but they worked as agricultural workers. It is submitted that mala fidely and without looking into facts and figures a wrong recommendation was made pursuant whereto the State Government is contemplating of notifying the area as a Nagar Panchayat under the provisions of Bihar Municipal Act, 2007. In the counter affidavit, the report of the District Magistrate to the State Government in terms of the provisions of the Act has been annexed. Which report was sent under Memo No.180/confidential dated 09.06.2009 and is Annexure-A to the counter affidavit. In my view, the report itself clearly discloses that it was not fit case for any such recommendation. Section 3 deals with declaration of inception to constitute a Municipal area. We are concerned with the transitional areas where the population is above 12000 but not more than 40000. The second proviso to Section 3 of the Bihar Municipal Act, 2007 is, what is relevant is quoted hereunder:- “Provided further that the non-agricultural population in all cases shall be seventy five per cent or more.” Petitioner points out from the report itself that the total population of the 10 revenue Thanas is 18400 and the non- agricultural population is 12646, but the learned Collector and his - 3 - Officers being aware of this provision without carrying out simple mathematical calculation involved that the non-agricultural population is 75% as is shown in column 9 of the said report. To this Court, this submission itself is sufficient to allow the writ petition. For a simple mathematical calculation comparing the non-agricultural population to the total population would show that the non- agricultural population is only 68.72% and not 75% is wrongly stated by the Collector. If that be so then surely non-agricultural population is less than 75%. There is no jurisdiction in the State or the authorities to bring the area within Municipal area. May it be a Nagar Panchayat or Nagar Nigam or Nagar Parishad, which are the three constituents of Municipal area. On this ground alone, the entire exercise has to be set aside and State and respondents are restrained from proceeding further in this matter in this regard. It may be noted here for the sake of record that petitioner complains that their individual rights and liabilities were not even referred to by inviting this agricultural area as Municipal area. It would deprive petitioner of various social benefits and would not confer them any additional benefit. This would have a retrograde step in this matter that the State has to consider. It is further alleged that large number of representations were filed against the steps being taken to notify the area as a Municipal area, but regrettably there has been no consideration thereof, much less a conscious consideration that is a matter which should concern the State. In view of this basic impediment, as noted above, I hold - 4 - that the provisions of the Bihar Municipal Act, 2007 cannot be extended to the area as being sought to be designated Jamhore town. The recommendation is itself non est and no further action in this regard can take place. Accordingly, the notification and the draft order are both held to be wholly without jurisdiction, illegal, and contrary to the provisions of the Bihar Municipal Act, 2007 and are quashed accordingly. The writ petition is allowed. Trivedi/ (Navaniti Prasad Singh, J.)