IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6620 of 2008 1. Bihar Pradesh Nikay Sangrash Samiti through its President Parmanand Prasad, At P.O. + P.S. Daudnagar, District Aurangabad. 2. Parmanand Prasad, Son of Late Kamta Prasad, Chairman, Daudnagar Nagar Panchayat, President, Bihar Pradesh Nikay Sangrash Samiti, At P.O. + P.S. Daudnagar, District Aurangabad. ------ Petitioners. Versus 1. The Union of India through Secretary, Urban Development Department, Government of India, New Delhi. 2. The Secretary, Urban Development Department, Government of India, New Delhi. 3. The Director, Urban Poverty Alleviation, Government of India, New Delhi. -------- Respondents 1st Set. 4. The Secretary, Urban Development Department, Government of Bihar, Patna. 5. The Director, Urban Property Alleviation Programme, Government of Bihar, Patna. 6. Additional Secretary-cum-Urban Development and Housing Department, Government of Bihar, Patna. ------ Respondents 2nd Set. 7. Hindustan Prefab Limited through its Chairman-cum-Managing Director, Jungpura, New Delhi-110 014. 8. Chairman-cum-Managing Director, Hindustan Prefab Limited, Jungpura, New Delhi – 110 014. -------- Respondent 3rd Set. For the petitioners : Mr. Ashutosh Ranjan Pandey, Advocate Mr. Ramanuj Tiwary, Advocate For the Union of India : Mr. P.L. Jaiswal (C.G.C) Mr. Binoy Kr. Singh, A.C. to C.G.C. --------- 4 16.12.2011 Heard the parties. The petitioners are aggrieved by the fact that the State of Bihar in violation of the spirit of the Constitution and the Bihar Municipal Act, 2007 is interfering with the municipalities situated in the State of Bihar. The Sangh i.e. the Bihar Pradesh Nikay Sangharsh Samiti through its President has filed this writ application alleging that the 2 municipalities are not being permitted by the State Government and its authorities to function and to act as independent bodies. The allegation against the respondents 2nd set, the State of Bihar, is that they are taking all the decisions with regard to the improvement schemes, without taking into confidence authorities concerned, without entering into a consensus with respect to the allotment of the schemes or the development of the area and by doing so are directly entering into agreements with the concerned party to whom the schemes are allotted. Particular reference has been given to memorandum of understanding entered by the Secretary, Department of Urban Development and housing, Government of Bihar (hereinafter referred to as ‘the owner in the memorandum of understanding) and the Chairman-cum-Managing Director, Hindustan Prefab Limited (A Government of India Enterprises, Jangpura, New Delhi) with respect to implementation of Integrated Housing and Slum Development Programme. It is submitted that the provisions of Section 287 of the Bihar Municipal Act, 2007 provides that the Municipality with the 3 approval of the State Government may prepare such improvement scheme for the purpose of effecting environmental or general improvement of slums as it may consider necessary. It is further submitted that the provisions of Section 289 provide as follows: 289. Work to be executed in slum.- Notwithstanding anything contained in the forgoing provisions of this chapter, the Chief Municipal Officer may, for reasons of environmental Sanitation, cause the following works to be executed in any slum:- (a) sinking of tube-wells inside a slum including laying of water-pipe lines, installation of overhead reservoirs and other appurtenances necessary to maintain flushing arrangements of privies and sewers, (b) laying of drains or diversion of existing drains, (c) conversion of service privies into connected privies or septic tanks, (d) removal of silt from sewers and aludge from septic tanks inside a slum, (e) removal of solid or liquid wastes from slums including cleansing of the deck or squatting platform of the connected privies, or septic tanks, (f) laying of internal roads, (g) provision of street lighting, and (h) repair work relating to any of the works referred to in clauses (a) to (e). Learned counsel for the petitioners refers to various sections under the Act which discusses the duties of the municipalities. One of them being Section 45 of the Bihar Municipal Act, 2007 which provides that the Municipality through any agency may supply or work for supply of water, industry, commercial 4 purposes, drainage, sewage and the like. Section 46 of the Bihar Municipal Act, 2007 also provides that the Municipality may, subject to the underwriting of the costs by, and approval of, the Central Government or the State Government, as the case may be, undertake any function belonging to the functional domain of the Central Government or the State Government, as the case may be, and such functions may include primary education, curative health, transport, supply of energy, arrangements for fire prevention and fire safety, and urban poverty alleviation. Infact there is a list of functions which are to be performed by the municipalities which is noted in Section 47 of the Bihar Municipal Act, 2007. In the circumstances, it is argued that the State Government is acting arbitrarily and beyond the powers assigned to it by entering directly into memorandums of understandings, allotment of schemes, treating itself to be the authority or the owner who has to perform the development work in the municipal area in question. There is no doubt about the fact that the Act gives certain rights and powers to the 5 authorities of the municipalities to act and function in a manner which is for the benefit of the municipal area in question relating to water supply, industry, development of commercial areas, drainage, sewage and a number of other things for maintenance and construction of the town areas where the municipality functions. However, this Court cannot hold that the memorandum of understanding should be quashed on account of the fact that the scheme was not approved or passed or discussed with the municipality in question rather this Court would direct that the matter should be brought to the notice of the State Government. The State Government and its functionaries presumably act in accordance with law and if a party has been any grievance it may be brought to the notice of the Higher Authorities. Any deviation of the law would amount flouting the provisions of the Act and the scheme of the constitution. This writ application is thus, disposed of with the aforesaid observations. Sanjay (Sheema Ali Khan, J.)