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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, MADHURESH PRASAD, JJ.
Usha Devi Wife of Basant Kumar – Appellant
Versus
The State of Bihar - Respondent
Civil Writ Jurisdiction Case No 7446, 7804 of 2021
Decided on : 17-01-2022
Bihar Municipal Act, 2007 – Sections 3 to 8 – Declaration of intention to constitute a municipal area – None of provisions of Act of 2007 require passing of an order on objections received in response to the notification of intention to constitute a municipal area – Besides, only 28.92% of male population and 18.58% of female population, out of total population of cultivators were engaged in cultivation work – If both these percentages are taken together still it constitutes only 47.5% which is below 50% of total population of workers, which is one of requisite factors under second proviso to Section 3 of Act of 2007, for declaring intention to constitute a Municipality – Fulfillment of requisite factors under Sections 3 and 7 of Act of 2007 has to be considered in relation to "such area" – "Such area" refers to "urban area", which was proposed to be constituted and to come into existence as a result of process of constitution/ upgradation of Municipality/Urban Area – Requisite population, density of population, revenue generated for local administration, percentage of employment in non-agricultural activities, economic importance and other requirements, contemplated under Sections 3 and 7 of Act of 2007, are not requirements in respect of rural area/individual Panchayat/small municipal area, which are sought to be included for the purposes of upgradation or constitution of Municipal Area under Act of 2007 – Since petitioners have chosen not to make any objection when they were afforded opportunity, there is no basis for them to maintain instant writ proceedings – Having chosen not to avail statutory opportunity, it does not lie in their mouth to contend that there is any infirmity in statutory process, much less non consideration of their objections – They cannot be permitted to invoke writ jurisdiction of this Court under Article 226 of Constitution of India. (Paras 16, 18, 20 to 22)
Constitution of India – Article 243Q – Bihar Municipal Act, 2007 – Sections 3 and 7 – Declaration of intention to constitute a municipal area – Scope of judicial review – Having regard to discretion given to Governor under Article 243Q of Constitution of India, notifications issued under Chapter II of Act of 2007 cannot be considered to be discharge of administrative functions, much less adjudicatory in nature – Though notifications under Sections 4 and 6 of Act of 2007 are issued under Article 166 of Constitution of India, but same may be termed as legislative rather than administrative – Exercise of declaration of intention or constitution of municipal area may not be termed as adjudicatory function – Chapter II of Act of 2007 only provides an opportunity to inhabitants of city, town or Nagar Panchayat to submit their objection in writing to State Government within one month from date of publication of intention to constitute a municipal area – Act of 2007, requires State Government to take such objection into consideration and consciously omits any prescription for disposal of objections or passing of orders thereupon – Notifications issued under Chapter II of Act of 2007 are issued in exercise of functions which partakes legislative character though issued under Article 166 of Constitution of India – Notifications issued by Governor in exercise of powers under Chapter II of Act, having its roots in Article 243Q (2) cannot be subjected to judicial review applying principles of natural justice, requiring passing of reasoned orders upon objections received in response to notification issued under Section 4 of Act of 2007 – Once objections are invited, considered and notification issued, it is not for Constitutional Courts under Article 226 of Constitution of India to sit in judgment over decision leading to issuance of notification upgrading or constituting a larger Municipal Area – Writ Petitions dismissed. (Paras 46, 47, 48, 49, 51 to 54)
(2008) 11 Supreme Court Cases 502; (2008) 4 Supreme Court Cases 144 ; (1989) 3 Supreme Court Cases 396 – Relied.
JUDGMENT :
MADHURESH PRASAD, J.
1. Mr Rajendra Narayan, learned senior counsel has appeared for the petitioners in CWJC No 7804 of 2021. Mr Harsh Anuj, learned counsel has made submissions for the petitioners in CWJC No 7446 of 2021. The State counsel has also appeared in both the cases. In CWJC No 7804 of 2021, Nagar Parishad, Sitamarhi is also represented by the learned counsel. Parties are in agreement that issues are common in both the writ petitions and, therefore, the matter may be heard together. Accordingly, both these matters have been heard together and are being disposed by this common order.
2. CWJC No 7446 of 2021 was filed with a prayer for quashing the draft notification No 4335 dated 26.12.2020 by the State Government declaring its intention to constitute Triveniganj Nagar Parishad. By the said notification, 4 Gram Panchayats, comprising the area of 5 villages, mentioned in Column 3 of the draft notification, were proposed to be constituted as a municipal area, details of which were specified in Column 5 of the draft notification. By the said notification, inhabitants, who were likely to be effected, were given an opportunity to submit objections in writing within a month from the date of draft notification in terms of Sections 4 and 5 of the Bihar Municipal Act, 2007 (hereinafter referred to as the Act of 2007).
3. Petitioner No 1 was Mukhiya of Babhangama Gram Panchayat, Petitioner No 2 was Mukhiya of Thalha Garhia South, Petitioner No 3 was Mukhiya of Latauna North and Petitioner No 4 was Mukhiya of Daparkha Gram Panchayat.
4. Their specific case is that earlier the Authorities had brought out a similar Notification which was assailed in CWJC No 6369 of 2017. An assurance was made in the said proceedings by the District Magistrate, Supaul that all statutory requirements prior to sending of the recommendation to the State Government shall be followed. In view of such categorical statement, writ petition was disposed of with the hope that the issue shall be finally settled expeditiously and within a period of three months. The Draft Notification dated 13.04.2017, which was the subject matter of the said proceeding, was set aside to facilitate fresh steps in this regard.
5. The instant writ petition has been filed alleging violation of Section 3 of the Act as it existed prior to the Bihar Municipal (Amendment) Act, 2020 (hereinafter referred to as the “Amendment Act, 2020”, published in Bihar Gazette on 10.08.2020, even though the draft notification has been issued thereafter, i.e., on 26.12.2020. Learned counsel appearing for the petitioners has submitted that based on the last census of 2011 (Annexure 3), he is in a position to show that requisite non-agricultural population even as per the Amendment Act, 2020 is not satisfied and constitution of urban area is unsustainable in law. We have, thus, allowed him to make his submissions.
6. It is submitted by the learned counsel for the petitioners that the impugned Draft Notification dated 26.12.2020 has again been published illegally without satisfying the requirements of law and also with the oblique motive to disturb the petitioners. After creation of Nagar Parishad, elections will have to be conducted afresh and the petitioners could not continue as duly elected Mukhiyas for their entire tenure, as the Gram Panchayats would cease to exist.
7. It is also submitted by the learned counsel, that for constitution of an urban area, as per Section 3 of the Act of 2007, the agricultural population was required to be less than 50%. Referring to the census of 2011, it has been contended that the population involved in agricultural work in Triveniganj Block is more than 50%. Therefore, creation of Nagar Parishad is unsustainable in view of the proviso to Section 3 (1) of the Act of 2007.
8. The petitioners have stated that they have made their objections by a representation
The court emphasized the discretion of the State Government to declare its intention to specify an area as a larger urban area, medium urban area, or transitional area, and the mandatory nature of th....
The discretionary nature of the State's power in issuing notifications under the Bihar Municipal Act, 2007, and the legislative character of such notifications, as well as the absence of a requiremen....
The notifications for municipal formation and alteration complied with constitutional mandates and statutory requirements, and the principles of natural justice were not violated.
The provisions of the Bihar Panchayat Raj Act, 2006 shall have no application in respect of the areas to which the provisions of the Municipal Act are applied.
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