JUDGMENT :

MADHURESH PRASAD, J.

In all these four writ petitions, the petitioners have assailed the notification dated 26.12.2020 bearing Memo No.4339 declaring the intention of the State Government to constitute Nagar Parishad, Sampatchak, comprising of four Panchayats including 21 villages.

2. The same notification is under challenge in the other three writ petitions also. The same counsel represents the petitioner(s) in all these four cases and, therefore, with the consent of the parties, the four matters have been taken up and considered together.

3. The State has filed counter affidavits in C.W.J.C. No. 8511 of 2021, C.W.J.C. No. 9056 of 2021 as well as in C.W.J.C. No. 11651 of 2021. As per the counter affidavit, final notification bearing Memo. No. 959 dated 03.03.2021, constituting Nagar Parishad, Sampatchak, after completing the process for constituting a Municipal Area specified in Chapter-II of the Bihar Municipal Act, 2007 (in short ‘the Municipal Act’), was issued under Section 6 of the Municipal Act. The State has placed on record various communications in support of their contention that the procedure requisite under Chapter-II of the Act has been followed.

4. Learned counsel appearing on behalf of the petitioners has raised only one issue, which, according to him, has not been dealt by the Division Bench in the case of Usha Devi and Others vs. The State of Bihar and Others (C.W.J.C. No. 7446 of 2021 and other analogous matter, disposed of on 17.01.2022).

5. He has submitted that the counter affidavit does not disclose that the mandate under Section 11 of the Bihar Panchayat Raj Act, 2006 (in short ‘the Panchayat Raj Act’) has been complied. The substance of the submission is that there has been no consultation with the Panchayats while excluding area/village(s) from a Panchayat area and constituting a Municipal Area. In support of his submission, he has placed reliance on the decision dated 23.04.2010, rendered in C.W.J.C. No. 10074 of 2009 (Neelam Devi vs. The State of Bihar and Others). Since the issue regarding the requirement under Section 11 of the Panchayat Raj Act warranting consultation with the Panchayat Body, has not been considered by the Division Bench in the case of Usha Devi (supra), the decision rendered in Neelam Devi (supra) on this point holds the field. In view of decision rendered in Neelam Devi (supra), non-compliance with the statutory requirement of consultation with the Gram Panchayats under Section 11 of the Panchayat Raj Act in the instant case is by itself sufficient to hold that the exercise undertaken by the authorities is illegal.

6. Such submission has to be viewed while considering the fact that petitioners have chosen not to assail/challenge the final notification dated 03.03.2021 in any of these four writ petitions.

7. Counsel for the petitioners has, however, submitted that the admitted non-compliance with the mandatory provisions of Section 11 of the Panchayat Raj Act, which emerges from the pleadings on record, would render the entire exercise of constitution of Municipality contrary to law and, therefore, this Court should consider the said submission being an issue of law.

8. Firstly, this court would observe that decision in the case of Neelam Devi (supra) was rendered in the context of a challenge to the action and notification issued, on these grounds: -

“(1) that before any part of any Gram Panchayat is taken out of the Gram Panchayat as mandatorily provided under proviso to sub-section (1) of Section 11 of the Bihar Panchayat Raj Act, 2006, the views of the Gram Panchayat have to be taken by the District Magistrate and that not having been done, the exclusion of the areas from the existing Gram Panchayats was invalid.

(2) Section 3 of the Bihar Municipal Act 2007 and, in particular, second proviso thereof provides that in all cases of constitution of Municipality, the non-agricultural population must be 75% or more which is not satisfied as all areas were part of duly notified G