IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5710 of 2010 1. MD. YASIN S/O GANIMAT MIYAN R/O MOHALLA- SARIFGANJ, P.S.- MUFASSIL KATIHAR, DISTT.- KATIHAR Versus 1. THE STATE OF BIHAR, THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE JOINT SECRETARY, URBAN DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 4. DISTRICT MAGISTRATE, KATIHAR 5. THE EXECUTIVE OFFICER, KATIHAR NAGAR PARISHAD, KATIHAR, DISTT.- KATIHAR 6. THE STATE ELECTION COMMISSION, THROUGH THE STATE ELECTION COMMISSIONER, SONE BHAWAN, BIRCHAND PATEL MARG, PATNA with CWJC No.5735 of 2010 1. SURESH PRASAD SINGH S/O LATE HARPAT SINGH R/O VILL.- TAJGANJ, CHIPWARA DEHARIA, P.S. MUFASSIL, DISTT.- KATIHAR Versus 1. THE STATE OF BIHAR, THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE JOINT SECRETARY, URBAN DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 4. DISTRICT MAGISTRATE, KATIHAR 5. THE EXECUTIVE OFFICER, KATIHAR NAGAR PARISHAD, KATIHAR, DISTT.- KATIHAR 6. THE STATE ELECTION COMMISSION, THROUGH THE STATE ELECTION COMMISSIONER, SONE BHAWAN, BIRCHAND PATEL MARG, PATNA ----------- 4. 02.05.2011 Heard learned counsel for the petitioners, the State, the State Election Commission and the newly constituted Katihar Municipal Corporation. The petitioner is stated to be the Mukhiya of the Deharia Gram Panchayat in the District of Katihar, aggrieved by the final notification dated 1.7.2009 published under Section 6 of the Bihar 2 Municipal Act, 2007 (hereinafter referred to as the „Act‟) constituting the Katihar Municipal Corporation by amalgamation of 5 other Gram Panchayats including part of the Deharia Gram Panchayat. Learned counsel for the petitioner sought to persuade the Court that the requirements for constitution of the Katihar Municipal Corporation by amalgamation of the Panchayats has not been done in accordance with the statutory requirements of Sections 3, 4 and 5 of the Act and for that reason the final notification stands vitiated. The draft notification was published under Section 4 of the Act on 25.2.2009. It provides for filing of objections by the aggrieved inhabitant within a period of one month under Section 5 of the Act. The petitioner alleges in Paragraph-8 of the writ application that public proclamation by beat of drum throughout the local area or through any other publicity media was not done. On the own showing of the petitioner from his pleadings it stands admitted that publication in the manner required by Section 4(1) stood complied. The purpose of pasting in a conspicuous place or by beat of drum was to make the inhabitant aware of the intention of the Government to enable filing of objections. If 3 publication as required under Section 4(1) was done and it is not denied, the petitioner was fully aware of his right and if he so desired to file objections as an inhabitant. Therefore, he cannot be stated to have been prejudiced in any manner by alleged failure of pasting in any conspicuous place and by beat of drum. Dealing with the averments in the writ petition at Paragraph-17 of the counter affidavit even this assertion of the petitioner has been denied and it has been asserted that Section 4(2) and 4(3) of the Act were duly complied. Section 5 of the Act provides that “any inhabitant” of the Panchayat in respect of which a notification has been published under Section 4 may object to anything in the notification and submit his objection in writing within one month and the State Government shall take such objections into consideration. Therefore, the petitioner Mukhiya cannot claim any representative right to pursue objections under a statutory provision if he filed no objection as an inhabitant. The statue clearly talks of an inhabitant filing objections. The right is therefore statutory of the individual inhabitant. An inhabitant may or may not have objections to the draft notification. Even if he had an objection, he 4 may consciously choose to waive his statutory right to file objections. Waiver may be express or implied. An express waiver would be when the inhabitant files an application that he has no objection. The implied waiver shall be when the inhabitant does not file objections within the prescribed period. The right being statutory is clearly amenable to waiver. In 1992 Supp (1) SCC 5 (Jaswantsingh Mathurasingh v. Ahmedabad Municipal Corpn.), the principle of waiver has been explained at Paragraph 14 as follows:- 14. The principle of waiver connotes issuance of notice and non- response thereto. Everyone has a right to waive an advantage or protection which law seeks to give him/her. Undoubtedly, if a notice is issued and no representation was made by either the owner, tenant or a sub-tenant, it would amount to waive the opportunity and such person cannot be permitted to turn round, after the scheme reaches finality, to say that there is non-compliance of sub-rules (3) and (4) of Rule 21. It would amount to putting premium on dilatory and dishonest conduct. This has again been considered in (2008) 12 SCC 401 (Babulal Badriprasad Varma vs. Surat Municipal Corpn.) at Paragraph-29 as follows:- 29. A person may waive a right either expressly or by necessary implication. He may in a given case disentitle himself from obtaining an equitable relief particularly when he 5 allows a thing to come to an irreversible situation. Learned counsel for the petitioner sought to persuade the Court from Annexure-2 that other inhabitants have filed objections, but very fairly admitted that the petitioner in fact as an inhabitant had filed no objections. The Court is not persuaded to uphold the submission that he is entitled to pursue the writ petition in a representative capacity on their behalf notwithstanding the clear language of Section 5 of the Act. The petitioner has himself placed on record an order dated 18.5.2009 disposing the objections when the final notification dated 1.7.2009 explicitly states that the objections had been considered. Those who had filed objections are not aggrieved by the disposal of their objections on 18.5.2009 and have not questioned the same in the present proceedings. If the petitioner perceived any alleged violation of Section 3 of the Act, he had a statutory duty to raise that objection under Section 5 of the Act before he could allege that the final notification under Section 6 of the Act was not in consonance 6 with the law. He cannot abdicate or waive his statutory duty to seek enforcement of what is perceived are his statutory rights alone. Rights and the duties exist together and cannot be divorced from each other. There shall be a presumption of compliance with Section 3 of the Act under Section 114(e) of the Indian Evidence Act. It was for the petitioner to rebut the same by filing objections. It has been fairly acknowledged on the part of the petitioner that after final objections of the Katihar Municipal Corporation on 1.7.2009 he had also filed his nomination and contested election as a ward Councillor for Ward No. 42. The publication of results has been stayed by this court in the present batch of applications. The petitioner cannot blow hot and cold by seeking to take advantage of the notification dated 1.7.2009, and yet at the same time challenge the validity of the notification. The doctrine explained in (2010) 10 SCC 165 (Shyam Telelink Ltd. Vs. Union of India) at Paragraph-23 and 24 reads as follows:- 23. The maxim qui approbat non reprobate (one who approbates cannot reprobate) is firmly embodied in English common law and 7 often applied by courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument. 24. In Ambu Nair v. Kelu Nair (AIR 1933 PC 167) the doctrine was explained thus: (I Ap. 271) “Having thus, almost in terms, offered to be redeemed under the usufructuary mortgage in order to get payment of the other mortgage debt, the appellant, Their Lordships think, cannot now turn round and say that redemption under the usufructuary mortgage had been barred nearly seventeen years before he so obtained payment. It is a well- accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honyman, J. in Smith v. Baker (1873 LR 8 CP 350) “…..at the same time blow hot and cold. He cannot say at one time that the transaction is valid, and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another time say it is void for the purpose of securing some further advantage.” In so far as present writ application is concerned, there being no statutory violation in procedures with regard to the publication of the draft and final notification, the petitioner admittedly having waived his right to file objections as an inhabitant of the area, the Court finds no merit in 8 this application. It is accordingly dismissed. Mr. H.S. Himkar, Advocate appearing for the petitioner in C.W.J.C. No. 5735 of 2010 very fairly acknowledges that in so far as the facts are concerned they are identical as in C.W.J.C. No. 5710 of 2010. The writ application stands dismissed in like terms as C.W.J.C. No. 5710 of 2010. Any interim order passed during the pendency of the writ application obviously now looses its efficacy and validity in view of the dismissal of the application. The applications stand dismissed. P. Kumar ( Navin Sinha, J.)