IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1046 of 2010 1. ARVIND KUMAR NISHAD S/O LATE RAM PRASAD CHOUDHARY R/O VILL.- UMAIRABAD, P.O.- BAIDRABAD, P.S.- ARWAL, DISTT.- ARWAL 2. BINESH KUMAR BHARTHI S/O LATE NAURANGI DAS R/O VILL.- MAKHDUMPUR, P.O. + P.S.- ARWAL, DISTT.- ARWAL Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER-CUM-SECRETARY TOWN DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE ARWAL 4. SHRI KAMLA KANT, THE REVISING AUTHORITY AS NOTIFIED UNDER BIHAR MUNICIPAL ACT, 2007 FOR THE NAGAR PARISHAD, ARWAL 5. THE STATE ELECTION COMMISSION SONE BHAWAN, 5TH FLOOR, VEERCHAND PATEL PATH, PATNA-1, REPRESENTED THROUGH ITS COMMISSIONER, STATE ELECTION COMMISSION, SONE BHAWAN, 5TH FLOOR, VEERCHAND PATEL PATH, PATNA-1 6. THE SECRETARY STATE ELECTION COMMISSION, SONE BHAWAN, 5TH FLOOR, VEERCHAND PATEL PATH, PATNA-1 For the Petitioners:- Mr. S.P. Srivastava, Advocate For the State:- Mr. Roy Saurbh Nath, Advocate For the Intervenor:- Mr. Manish Kumar No.-2 & Mr. Mukesh Thakur, Advocates For the Election Commission:- Mr. Sanjeev Nikesh, Advocate ----------- 06. 01.04.2011 Heard learned counsel for the petitioners and for the State. The petitioners are stated to be residents of the eight different Panchayats by amalgamation of which the Nagar Parishad, Arwal has been constituted. Learned counsel for the petitioner submits that the Panchayats in question subsisting in accordance with law could not have been dissolved before the expiry of their statutory term of five years under Section 14 of the Panchayat Raj Act, 2006. He next submits that the draft 2 notification of the intention to constitute the Nagar Parishad was published on 17.12.2008 under the Bihar Municipal Act, 1922. The latter stood repealed on 5.4.2007 and was substituted by the Bihar Municipal Act, 2007. The final notification has then been issued on 20.5.2009 under the 2007 Municipal Act. If the draft notification was itself issued under a repealed Act, there was no notification in accordance with law to lay the foundation for a final notification. It is lastly submitted that six Panchayats have been dissolved under Section 69 of the Bihar Municipal Act, without any notification to that effect having been issued. Learned counsel for the State submits from Annexure „B‟ to the counter affidavit that the draft notification dated 17.12.2008 has been issued under the Bihar Municipal Act, 2007. He next submits that in fact no objections were filed by the petitioners. There is no such assertion in the writ application and no copy of any such objections filed has been annexed. The specific statement made in the counter affidavit at paragraph-8 that no objections were received within the stipulated period of 30 days from the date of the draft publication has not been denied. A rejoinder to the counter affidavit is stated to have been filed on behalf of the petitioners on 16.4.2010. It 3 is not on record. The office shall place it on record. The Court therefore requested the counsel for the petitioners for perusal of his copy, so that the writ application may be taken up for disposal at this stage, if possible. The rejoinder affidavit dealing with paragraph-8 of the counter affidavit does not deny or dispute the same. Learned counsel for the petitioners has very fairly admitted that in fact no objections were ever filed. The right to file objections was a statutory right. It was open for those whom the statute gave the right to waive it. There can be no quarrel with the proposition that a statutory right can be waived by one in whom the statute vests the right. The Court is satisfied that all the objections of the nature which are sought to be now raised in the writ petition should have more appropriately been raised at the stage of filing of objections to the draft notification. Once the petitioners have waived their statutory right, the principles of waiver debar them from now turning around and raising these issues. The Court is not persuaded to violate the statutory procedure by examining the objections now sought to be raised belatedly after the petitioners consciously waived their statutory right and the stage for the same is over. Section 4 of the Bihar Municipal Act, 2007 4 provides for publication of a draft declaration declaring the intention of the Government. Section 5 provides for filing of objections within one month of the draft publication and the State Government is obliged to take into consideration such objections. Under Section 6 after expiry of one month from the date of draft declaration and consideration of the objections the final notification is issued. The amalgamation of Panchayats, their conversion into Nagar Parishad is a very serious exercise which requires extensive labour, money, manpower and manhour utilisation. If the writ Court were to lightly interfere with such matters of executive policy done in exercise of statutory powers at the behest of those few who have not even been vigilant for the protection of their own interest, but on the contrary have consciously waived their statutory rights, the Court by its order shall be creating an impossible situation for the executive to function. Explaining statutory waiver the Supreme Court in 2008 (12) SCC 401 (Babulal Badriprasad Verma Vs. Surat Municipal Corporation) has held at Paragraph- 40 to 44 as follows:- “40. It is not in dispute that: (a) The appellant although filed an objection with regard to the draft scheme, did not choose to pursue it. (b) He did not file objections for reallotment and did not participate in the proceedings following acquisition instituted by the 5 authorities under the Act. 41. In view of the above, the issue is whether it was open to him to assert his purported right to special notice in respect of the final allotment in the instant case given the fact that he did not pursue his objections to the draft scheme and subsequently did not object/participate during the proceedings for reallotment. 42. …… We are of the opinion that even if he had any such right, he waived the same. 43. In Halsbury’s Laws of England, Vol. 16(2), 4th Edn., Para 907, it is stated: “The expression „waiver‟ may, in law, bear different meanings. The primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example whether or not to exercise a contractual right... Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular knowledge on the part of the person making the representation, and the estoppel may be suspensory only... Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it.” 44. As early as in 1957, the concept of waiver was articulated in a case involving the late assertion of a claim regarding improper constitution of a Tribunal in Manak Lal v. Dr. Prem Chand Singhvi8 in the following terms: (AIR p. 431, para 8) “8. … It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the 6 objection in question. As Sir John Romilly, M.R. has observed in Vyvyan v. Vyvyan9: (Beav p. 75 : ER p. 817) „Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim‟.” A developing society is never static. The conversion from a Panchayat to a Nagar Parishad is but the reflection of the aspiration of the people, the changing social, political and economic scenario of the region. It is but the vision of the people looking forward to a better tomorrow in the forward march of civilization. Unless there be very compelling reasons, it shall not be the approach of the Court to lightly interfere, stultify and retrograde such progress at a behest of handful which in any event cannot be stated to be reflecting the will of the masses. The Court finds no merit in this application. It is dismissed. Any interim orders passed automatically loose their validity and sanctity. P.K ( Navin Sinha, J.)