JUDGMENT

1. Petitioner No. 1 claims to be elected Mukhiya of Chhatauni Panchayat and petitioner No. 2, that of Aamakuan Panchayat under Tekari Prakhand of district Gaya, who were elected in 2016. They filed this writ application seeking a direction to the Divisional Commissioner, Magadh Division, Gaya, and the District Magistrate, Gaya, to dispose of their objections and representations dated 05.01.2021 filed in response to a notice published in the newspaper daily 'Hindustan' on 27.12.2020 against proposed up-gradation of Nagar Panchayat Tekari into Nagar Parishad by including certain villages including Makhpa, Nisurpur, Chiraili and Jagdishpur of the Gram Panchayats of which the petitioners are Mukhiya. During the pendency of this writ application, Tekari Nagar Panchayat has been up-graded and final notification in this regard has been published.

2. By filing LA. No. 1 of 2021, the petitioners have sought for addition of the State Election Commission, Bihar, through its Secretary as party-respondent as the Election Commission is the body competent to hold the election of the local bodies. Further, they have filed LA. No. 2 of 2021 seeking quashing of the said notification dated 26.12.2020 in response to which they had earlier filed the objections as noted above. Further, by filing LA. No. 3 of 2021, the petitioners are seeking quashing of the same gazette notification dated 26.12.2020 inviting objections, which was published in newspaper on 27.12.2020. The petitioners have filed LA. No. 4 of 2021 as during the pendency of the writ application, final notification dated 03.03.2021 has been issued by the Urban Development and Housing Department, Government of Bihar, whereby the villages in question have been included with the up-graded Nagar Parishad Tekari and the petitioners seek to question the legality of the said notification by way of amendment.

3. It may be noted, at this stage, that Section 3 of the Bihar Municipal Act, 2007 confers upon the State Government an authority to declare its intention to specify such area to be a larger urban area or a medium urban area or a transitional area, after making such enquiry as it may deem fit and having regard to the population of any urban area, density of population therein, the revenue generated for the local administration of such area, the percentage of employment in non-agricultural activity in such area, economic importance of such area and such other factors as may be prescribed, by notification. The first proviso to Section 3(1) of the Act, however, provides that no such declaration shall be made unless the population, (a) in the case of a larger urban area, is two lacs or more, (b) in the case of medium urban area, is forty thousand or more but is less than two lacs, and (c) in the case of a transitional area, that is a small town, is twelve thousand and more but not more than forty thousand. The second proviso to Section 3(1) prescribes that the non-agricultural population in all cases shall be seventy five per cent or more.

4. The second proviso has been subsequently substituted, initially with the promulgation of an Ordinance on 12.05.2020 under Article 213 (1) of the Constitution of India and subsequently by the Bihar Municipal (Amendment) Act, 2020, notified on 10.08.2020, substituting the same with the following : -

"Provided further that the total population of main cultivator workers and marginal cultivator workers shall be below fifty percent of total population of workers in such area in all cases. "

5. In paragraph 9 of the writ application, the petitioners have attempted to make out a case that the said villages cannot be merged as the criteria fixed for agricultural land is not specified inasmuch as more than 50 percent of land, nearly 75 percent to 80 percent is agricultural.

6. In nutshell, it is the petitioners' case that the up-gradation of Nagar Panchayat, Tekari into Nagar Parishad by including the four villages, namely, Makhpa, Nisurpur, Chiraili and Jagdish