IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1591 of 2010 1. CHOUDHARY IZHARUL HAQUE S/O LATE CHOUDHARY ZAINUL AABDIN R/O VILL. + P.O.- LAKHIMINIA, P.S.- BALIA, DISTT.- BEGUSARAI 2. KRISHNA CHOUDHARY S/O LATE GORE LAL CHOUDHARY R/O VILL.- MAULANA CHAK, CHOTI BALIA, P.O.- LAKHMINIA, P.S.- BALIA, DISTT.- BEGUSARAI VERSUS 1. THE STATE OF BIHAR 2. PRINCIPAL SECRETARY URBAN DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIAHR, PATNA 3. THE DEPUTY SECRETARY CUM DIRECTOR URBAN DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE DISTRICT MAGISTRATE BEGUSARAI 5. SUB-DIVISIONAL OFFICER BALIA SUB-DIVISION, BALIA, BEGUSARAI 6. THE CIRCLE OFFICER-CUM-BLOCK DEVELOPMENT OFFICER BALIA, BEGUSARAI 7. SRI BHOLA SINGH S/O LATE RAM PRATAP SINGH THE THEN URBAN DEVELOPMENT MINISTER, GOVERNMENT OF BIHAR, PATNA 8. THE STATE ELECTION COMMISSION THROUGH ITS SECRETARY SONE BHAWAN, VEER CHAND PATEL PATH, PATNA 9. THE ELECTION COMMISSIONER STATE ELECTION COMMISSION, SONE BHAWAN, VEER CHAND PATEL PATH, PATNA 10. SECRETARY, STATE ELECTION COMMISSION SONE BHAWAN, VEER CHAND PATEL PATH, PATNA. ----------- For the Petitioners : Mr. Ashutosh Ranjan Pandey. Mr. Anshuman. Mr. Ramanuj Tiwary. Mr. Rakesh Singh. For the State : Mr. Chandra Bhushan Prasad, AC to SC-23. For the Intervenor : Mr. Ram Balak Mahto, Sr. Adv. Mr. Binod Kumar. Mr. Sanjeev Saran. For the State Election : Mr Sanjeev Nikesh. Commission ------------- 04 23.04.2010 By this writ petition, the petitioners have challenged the constitution of Balia Lakhminia Nagar Panchayat under the provisions of Bihar Municipal Act, 2007 by the State Government. Counter affidavit has been filed by the State and interventions have been made opposing the writ petition. As pleadings are complete, the writ petition has been heard for final - 2 - disposal at this stage itself. In view of the urgency of the matter, as because during pendency of the writ petition for the newly created Balia Lakhminia Nagar Panchayat elections were announced, this Court permitted the election to be held but restrained the final publication of results. With consent of parties, this writ petition is being disposed of at this stage itself. The petitioners’ principal challenge is that Balia Lakhminia Nagar Panchayat has been constituted under the Municipal Act by adding the four Gram Panchayats, that is, Balia Lakhminia Gram Panchayat No.1, Balia Lakhminia Gram Panchayat No.2, Balia Lakhminia Gram Panchayat No.3 & Balia Lakhminia Gram Panchayat No.4. These were Gram Panchayats as declared and notified in the year 2006 based on the published 2001 census. That would be essentially rural areas having pre dominantly agricultural population. Then, if in each of the Gram Panchayats the pre dominant population is agriculturists then how clubbing the four Panchayats it would suddenly become pre dominantly urban. This transition had to be explained by the State which remains unexplained. To support their contentions, the petitioners have obtained a copy of 2001 census figures under Right to Information Act from the Block Development Officer, Balia under whose jurisdiction Balia Lakhminia lies. The figures as per 2001 census, is given to them on 10.12.2009, which is Annexure-3 to the writ - 3 - petition. In the said figures as initially supplied, Item Nos.2,3,4&5 relate to Balia Lakhminia Gram Panchayat Nos.1,2,3&4 respectively. If we add up the figures of population, it would be seen that the total population of all these four Gram Panchayats comes to 39,642. The Agricultural population comes to 31,712 and the non-agricultural population comes to only 7930. It would, thus, be seen that the agricultural population was almost 79.99% and the non-agricultural population was only about 20%, as per final figures. Thus, in view of second proviso to Section 3 of the Bihar Municipal Act, 2007 such an area could never be declared to be a municipality, much less, a transitional area as Nagar Panchayat. To this, the reply of the State is not by producing any census document but producing an order where the State has considered the objection as contemplated under Section 5 of the Municipal Act before final notifications were issued under Section 6 of the Act. If we refer to the same the first thing is that the population as per Annexure-3 is the same, it is 39643. The difference being of only one but what is surprising is the sudden change in non-agricultural population. As per census figures, the non agricultural population was only 7930, but in the order of the State Government it is said that as per report of the District Magistrate-cum-Collector, Begusarai the non-agricultural population is 29733. The question is not the report of the District Magistrate or his opinion, the question is, what was the census figures. The State knew fully well of the statutory obligation, still - 4 - it chose not to refer to census figures but refer only to figure given by the District Magistrate, that speaks volumes. State has sought to conceal more than what it seeks to disclose. In their counter affidavit, it is not stated that the figures as supplied to the petitioner in response to the query under RTI and appended by it in Annexure-3, is wrong, false and misleading. In any view of the matter, that being so, I have no option but to hold that the figures, as given by the petitioner in Anneuxre-3, are the authentic figures and if that be so, then the agriculturists population of this newly constituted Balia Lakhminia Nagar Panchayat would be about 80%. Thus, the non-agricultural population would be only 20%, as such, an area could never have been declared an urban area for the purpose of the Municipal Act and would be directly in conflict with second proviso to Section 3 of the Municipal Act. A declaration of this nature is, thus, invalid and cannot be sustained. The notification dated 20.01.2001, as contained in Annexure-1, constituting Balia Lakhminia Nagar Panchayat is set aside. It would be deemed that the position as obtaining prior to issuance of the said notification would be restored and continue to operate and elections so held are declared null and void. The writ petition is allowed. Trivedi (Navaniti Prasad Singh, J.)