IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12869 of 2009 Ripunjay Kumar, Son of Sri Suresh Rai, resident of village-Rampur, P.O.- Rampur, P.S.-Bakhari, District-Begusarai. -Petitioner. VERSUS 1. The State of Bihar. 2. Chief Secretary, Government of Bihar, Patna. 3. The Secretary, Department of Urban Development and Housing, Government of Bihar, Patna. 4. District Magistrate, Begusarai. 5. Sub Divisional Officer, Bakhari, District-Begusarai. 6. State Election Commission, through its Secretary, Sone Bhawan, 3rd Floor, Birchand Patel Marg, Patna. -Respondents. ----------- For the Petitioner : Mr. Ajay Kr. Thakur. Mr. Imteyaz Ahmad. For the State : Mr. Ravi Shankar, AC to GP-7. For the Election Commission : Mr. Sanjeev Nikesh. ------------- 04 23.04.2010 The petitioner by this writ petition challenges the government notification dated 02.09.2009 issued under the provisions of Bihar Municipal Act, 2007 by which the respondents has created a new Nagar Panchayat in the shape of Bakhari Nagar Panchayat in the district of Begusarai. The writ petition was filed on 17.09.2009 and was adjourned on 05.10.2009 for filing counter affidavit. None was filed. On 05.02.2010, when elections were announced in respect of the new Nagar Panchayat, this Court granted interim order of stay and directed for early hearing of the writ petition. In spite of that even till date no counter affidavit has been filed. Learned counsel for the State states that he has addressed several communications to the respondents but none has responded, even though, the elections was not stayed but only the - 2 - results was stayed, still no steps have been taken by the authorities to send any instructions even though elections have been held but results not notified because the order of this Court. In such a situation, I am left with no option but to proceed with the hearing of this writ petition and disposing of it today. The challenge of the petitioner is that the notification under the Municipal Act being issued whereby a new Nagar Panchayat was to be created by taking parts of certain Gram Panchayat including part of petitioner’s Gram Panchayat, namely, village Rampur including part of Makhachak Panchayat of Rampur village. It is averred that petitioner had filed their objection but they were not considered. A P.I.L. was filed in this Court. This Court directed that the objections to be considered but by then final notification on 02.09.2009 had been issued. Even thereafter, petitioner was called and his representation was taken up and recommendations made, but then what came of it is not known. The principal challenge of the petitioner is that all these areas are pre dominantly rural areas as constitutionally and statutorily understood. They were all parts of Gram Panchayat having pre dominantly agricultural population. How could parts thereof, be taken out and put together to form Bakhari Nagar Panchayat, a Municipality essentially an urban area under the provisions of the Bihar Municipal Act, 2007? This is clearly in contravention of second proviso to Section 3 of the Bihar - 3 - Municipal Act,2007 which lays down that in respect of municipalities the urbanized population (non agricultural population) must be 75% or more. The population figures have to be based on the last published census. Those censuses have not yet been revised then how a rural area initially under the same census could become urban area under the same census? Mr. Ajay Kumar Thakur, learned counsel appearing in support of writ petition states that the reason why no instructions are being given in spite of the fact that the result of elections have been stayed by this Court and the elections have been held which shows that the authorities are fully aware of the pendency of the writ petition and still take no steps to file counter affidavit would be clear if we refer to Annexure-12, which is the information the petitioner had sought from the Block Development Officer of the population of various villages in various Thanas of Begusarai. The figure as supplied are contained in Anneure-12, and gives one reason why respondents are not in a position to file counter affidavit. The figure on which they worked are revised figures/updated figures since 2001 census and not figures of 2001 census. With reference to Article-243(f) and Article 243(P)(g) of the Constitution read with Section 2(74) of the Municipal Act, it would be seen that the population figure has to be based on 2001 census, there cannot be any updation thereof, as apparently has been done. Then reference is made to Annexure-13, which is the communication of the Block Development Officer, Bakhari to the - 4 - Sub Divisional Officer, Bakhari clearly pointing out that leaving a part of Bakhari Bazar area, the rest of the area with villages stated therein, are fully agriculturists area. That should have stopped the State proceeding further in the matter but it did not. These are figures which the State themselves could not deny and, therefore, they had chosen not to bring facts and figures on record or file counter affidavit, as inspite of several opportunities, no steps have been taken to file counter affidavit and/or controvert the facts and figures brought on record, I have drawn adverse inference and treating the facts and figures as correct, being un-controverted, I am left with no option but to accept the submissions of the learned counsel for the petitioner and allow the writ application. The notification constituting Bakhari Nagar Panchayat is set aside. The consequence will be that the elections held would be void and the Gram Panchayats earlier constituted would continue as before. With the aforesaid order and direction, the writ petition is allowed. Trivedi (Navaniti Prasad Singh, J.)