IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 1258 of 2010 1. KAMESHWAR CHAUDHARY S/O LATE JAGDISH CHAUDHARY R/O VILL SATI ASTAN,P.S.RAJAULI,DISTT-NAWADA Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVERNMENT OF BIHAR,PATNA 2. THE PRINCIPAL SECRETARY,URBAN DEVELOPMENT AND HOUSING DEPARTMENT GOVERNMENT OF BIHAR,PATNA 3. THE JOINT SECRETARY,URBAN DEVELOPMENT AND HOUSING DEPARTMENT GOVERNMENT OF BIHAR,PATNA 4. THE DISTRICT MAGISTRATE NAWADA,DISTT-NAWADA 5. THE BLOCK DEVELOPMENT OFFICER RAJAULI,DISTT-NAWADA ----------- 3 30.04.2010 By this writ application, the petitioner, who is a resident of Rajauli in the district of Nawada, challenges the State Government notification issued in purported exercise of power conferred upon it under the Bihar Municipal Act, 2007 notifying constitution of a new Rajauli Nagar Panchayat. State has filed its counter affidavit. There is an intervention petition opposing the writ petition as well but no one has turned up to press the intervention application. As the pleadings are complete, the writ petition is being disposed of at this stage itself by consent of parties. Shri S B K Mangalam appearing on behalf of petitioner makes a very short submission assailing the Governmental action constituting new Rajauli Nagar Panchayat. He submits that as per second proviso to Section 3 of the Bihar Municipal Act 2007, a municipal area can be declared in respect of an urban area provided the non-agricultural population of that area is 75% or more. That requirement has to be determined on basis of last published census which, in the present case, 2 would be census of the year 2001. He submits that as per the counter affidavit itself, it now stands established that as per the last census itself, the agricultural population of the Nagar Panchayat would be about 45%. Thus, the non-agricultural population would be 55%, thus, obviously less than 75%, which is the requirement of law. He points out, with reference to Annexure-B to the State’s counter affidavit these figures and points out that the district authorities deliberately misled the Government. State, on the other hand, submits that the State acted on basis of recommendation of the Collector of the district and has, thus, annexed the recommendation so received. Heard the parties and having examined the matter, in my view, the writ petition has to succeed. The notification of the State Government constituting a new Rajauli Nagar Panchayat cannot be sustained in law for it fails to meet the legal requirements. Second proviso to Section 3 of the Bihar Municipal Act, 2007 reads as follows : “3 Declaration of intention to constitute a municipal area.- … … … Provided further that the non-agricultural population in all cases shall be seventy five per cent or more.” I may notice here that in view of the constitutional scheme of Panchayat and Municipality, as contained in Part-IX and Part IXA of the Constitution as introduced by the 73rd and the 74th constitutional amendments respectively, it would be seen that for rural area, the local self Government is Panchayats in the shape of Gram Panchayat, Panchayat Samiti or Zila Parishad. When we come to urban areas, we 3 have the municipalities in the shape of Nagar Panchayat, Municipal Council and the Municipal Corporation. The constitution further provides that wherever population has to be the basis, it has to be on basis of the last published census. When the State Government enacted the Bihar Panchayat Raj Act, 2006 and the Bihar Municipal Act, 2007 consistent with the constitutional scheme, it provided for the Panchayats and the Municipalities, as noted above. A reference to second proviso to Section 3 of the Municipal Act aforesaid would show that in order to be an urban area, the population must be at least 75% non-agriculture based. That is a condition precedent for constituting an urban area and, thus, a Municipality. Wherever the area has a non-agriculture population of less than 75%, that would consequently be a rural area which would be controlled by the Panchayat Raj Act and for which there would be Panchayats. What has been done in the present case is that by the impugned notification, Government has picked up three Panchayats that is Rajauli East, Rajauli West and Takuatand, adding them, the population exceeds 14 thousand and, thus, it has been treated as an urbanised area and a Municipality in the form of Nagar Panchayat constituted. I fail to appreciate that where three areas were essentially rural areas, where non- agriculture population did not exceed 75% in each case then, by putting them together, how can the population ratio take a U turn. Such assumption defies all mathematical norms but I do not propose to rest my judgment on this mathematical logic. State has brought on record as Annexure-B the 4 recommendation of the Collector, Nawada. Probably, no one applied its mind to the recommendation and the apparent falsity contained therein. Everyone was waiting to be misled. The Collector, while making the recommendation, has annexed the recommendation as received by him from the Subdivisional Officer, Rajauli. The letter of the Subdivisional Officer, Rajauli is a bundle of lies. The letter states that as per census, the area would have a non-agriculture population of 75% and an agriculture population of 25%. To the said letter is also annexed the proforma which is filled up at the level of the Collector justifying the recommendation and contains various details. If we come to Column 7 thereof, that clearly states that the percentage population of the proposed Nagar Panchayat would be 45% agriculturists and 55% non-agriculturists. I wonder if this is the population ratio then on what basis did the Subdivisional Officer at all write that the non-agricultural population of the proposed Nagar Panchayat would be 45% agriculturists and 55% non-agriculturists. I wonder if this is the population ratio then on what basis did the Subdivisional Officer at all write that the non-agricultural population is 75% and agricultural population 25% and under what circumstances did the Collector make a recommendation at all. Even if this wrong recommendation was made how and under what circumstances, State agreed to be misled in the matter, one wonders but the fact remains that the condition precedent for notifying a Municipality in the shape of Nagar Panchayat did not exist, the fact being undisputable. The result is that the Government declaration of constituting a new Rajouli Nagar Panchayat cannot be sustained in law and is, 5 accordingly quashed. Consequently, any step to hold election for the newly constituted Nagar Panchayat would be an exercise of futility. The status of the three Gram Panchayats, as earlier, would be restored. The writ application is allowed. M.E.H./ (Navaniti Prasad Singh)