Patna High Court
Amod Kumar Singh & Ors vs The State Of Bihar & Ors on 8 July, 2015
Author: V.N. Sinha
Bench: V.N. Sinha, Nilu Agrawal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.815 of 2010
IN
Civil Writ Jurisdiction Case No. 677 of 2010
===========================================================
Kaniz Raja, W/O Syed Shahid Raja, R/O Syed Bara, P.O. Purnea City, P.S. Sadar,
Distt-Purnea
.... .... Appellant/s
Versus
1. The State of Bihar through the Chief Secretary Government of Bihar, Old
Secretariat, Patna
2. The Principal Secretary, Urban Development and Housing Department Govt.
of Bihar, Patna
3. The Joint Secretary, Urban Development and Housing Department Govt. of
Bihar, Patna
4. The Director, Urban Development and Housing Department Govt. of Bihar,
Patna
5. The Divisional Commissioner Purnia Division, Purnia
6. The District Magistrate Purnia, At & P.O. Purnia
7. The Executive Officer, Purnia Nagar Parishad Purnia , At & P.O. Purnia
8. The State Election Commission, Sone Bhawan, Birchand Patel Patna through
the State Election Commission
9. The Secretary, State Election Commission, Sone Bhawan, Birchand Patel Path,
Patna
10. Manoj Rai, S/O Surendra Rai, R/O Moh Adhubani, Kali Prasad Tola, P.S.
K.Hat, Distt-Purnia
11. Satya Narayan Paswan, S/O Late Shivji Paswan, R/O Mohalla Imlitola, P.O.
Gulabbagh, P.S. Purnia Sadar, Distt-Purnia
.... .... Respondent/s
With
===========================================================
Letters Patent Appeal No. 801 of 2010
IN
Civil Writ Jurisdiction Case No. 677 of 2010
===========================================================
1. Amod Kumar Singh, S/O Shri Bisheshwar Prasad Singh, R/O Mohalla- Shastri
Nagar, P.S.- K.Hat, Distt.- Purnia
2. Binda Devi, W/O Mithilesh Kumar Singh, R/O Mohalla- Subhash Nagar, P.S.-
K.Hat, Distt.- Purnia
3. Manoj Kumar, S/O Late Raghubir Yadav, R/O Mohalla- Janata Chowk, P.S.-
K.Hat, Distt.- Purnia
4. Budhan Kumar Singh, S/O Shri Haribansh Prasad Singh, R/O Mohalla-
Ramangar, P.S.- K.Hat, Distt.- Purnia
.... .... Appellant/s
Versus
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Old Secretariat,
Patna
2. The Principal Secretary, Urban Development and Housing Department, Govt.
of Bihar, Patna
3. The Joint Secretary, Urban Development and Housing Department, Govt. of
Bihar, Patna
Patna High Court LPA No.815 of 2010 dt.08-07-2015
2/9
4. The Director, Urban Development and Housing Department, Govt. of Bihar,
Patna
5. The Divisional Commissioner, Purnia Division, Purnia
6. The District Magistrate, Purnia, At & P.O.- Purnia
7. The Executive Officer, Purnia Nagar Parishad, Purnia, At & P.O.- Purnia
8. The State Election Commission, Sone Bhawan, Birchand Patel Path, Patna,
through the State Election Commission
9. The Secretary, State Election Commission, Sone Bhawan, Birchand Patel Path,
Patna
10. Manoj Rai, S/O Surendra Rai, R/O Mohalla- Madhubani, Kali Prasad Tola,
P.S.- K.Hat, Distt.- Purnia
11. Satya Narayan Paswan, S/O Late Shivji Paswan, R/O Mohalla- Imlitola, P.O.-
Gulabbagh, P.S.- Purnia Sadar, Distt.- Purnia
.... .... Respondent/s
With
===========================================================
Letters Patent Appeal No. 1370 of 2010
IN
Civil Writ Jurisdiction Case No. 9378 of 2009
===========================================================
1. The State of Bihar through the Principal Secretary, Department of Urban
Development and Housing Department, Govt. of Bihar, Patna
2. The Principal Secretary, Department of Urban Development and Housing
Department, Government of Bihar, Old Secretariat, Patna
3. The Principal Secretary, Department of Panchayati Raj, Govt. of Bihar, Patna
4. The Divisional Commissioner, Purnea
5. The District Magistrate, Purnea
6. The Joint Secretary, Urban Development and Housing Department, Govt. of
Bihar, Patna
.... .... Appellant/s
Versus
1. Sunita Devi, W/O Shri Ramesh Das, R/O Vill Newa Lal Chowk, P.O. Batta
Bazar, P.S. Khas Maranga, Block-East Purnea, Distt-Purnea
2. The State Election Commission, through its Secretary Sone Bhawan, Birchand
Patel Path, Patna
.... .... Respondent/s
With
===========================================================
Letters Patent Appeal No. 1851 of 2010
IN
Civil Writ Jurisdiction Case No. 677 of 2010
===========================================================
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna
2. The Principal Secretary, Department of Urban, Development and Housing
Department, Govt. of Bihar, Old Secretariat, Patna
3. The Joint Secretary, Urban Development and Housing Department, Govt. of
Bihar, Patna
4. The Director, Urban Development and Housing Department, Govt. of Bihar,
Patna
5. The Divisional Commissioner, Purnea Division, Purnea
6. The District Magistrate, Purnea Distt.- Purnea
Patna High Court LPA No.815 of 2010 dt.08-07-2015
3/9
.... .... Appellant/s
Versus
1. Manoj Rai, S/O Sri Surendra Rai, R/O Mohalla-Madhubani Kali Prasad Tola,
P.S.- Khazanchi Hatt, Distt.- Purnea
2. Satya Narayan Paswan, S/O Late Sheoji Paswan, R/O Mohalla-Imli Tola, P.O.-
Gulabbag, P.S.- Purnea Sadar, Distt.- Purnea
3. The Executive Officer Nagar Parishad, Purnea Distt.- Purnea
4. The State Election Commission, Sone Bhawan, Birchand Patel Path through the
State Election Commissioner
5. The Secretary, State Election Commission, Sone Bhawan, Birchand Patel Path,
Patna
.... .... Respondent/s
With
===========================================================
Letters Patent Appeal No. 1173 of 2010
IN
Civil Writ Jurisdiction Case No. 9995 of 2009
===========================================================
1. The State of Bihar through the Principal Secretary, Department of Urban
Development and Housing Department, Government of Bihar, Old Secretariat,
Patna
2. The Principal Secretary, Department of Urban Development and Housing
Department, Government of Bihar, Old Secretariat, Patna
3. The Principal Secretary, Department of Panchayati Raj, Government of Bihar,
Patna
4. The Divisional Commissioner, Purnea
5. The District Magistrate, Purnea
6. The Joint Secretary, Department of Urban and Housing Department, Govt. of
Bihar, Patna
.... .... Appellant/s
Versus
1. Nirmala Devi, W/O Shri Baikunth Yadav, R/O Vill.- Belauri, P.O.- Belauri,
P.S.- Sadar Mufasil, Block- East Purnea, Distt.- Purnea
2. The State Election Commission through its Secretary, Sone Bhawan, Birchand
Patel Path, Patna
.... .... Respondent/s
With
===========================================================
Letters Patent Appeal No. 1429 of 2010
IN
Civil Writ Jurisdiction Case No. 9377 of 2009
===========================================================
1. The State of Bihar through the Principal Secretary, Department of Urban,
Development and Housing Department, Government of Bihar, Old Secretariat,
Patna
2. The Principal Secretary, Department of Urban Development and Housing
Department, Government of Bihar, Old Secretariat, Patna
.... .... Appellant/s
Versus
1. Jitendra Oraon, S/O Late Kartik Oraon, R/O Vill.- Hasda Kothi, P.O.- Gulab
Bagh, P.S.- Sadar, Distt.- Purnea
Patna High Court LPA No.815 of 2010 dt.08-07-2015
4/9
2. The State Election Commission through its Secretary Sone Bhawan, Birchand
Patel Path, Patna
.... .... Respondent/s
===========================================================
Appearance :
For the Appellant/s : Mr. Rajiv Roy, GP-5
Mr. Suresh Kumar, AC to GP-5
Mr. Sunil Kumar, AC to AAG-6
Mr. Subodh Kr. Mishra, AC to GP-7
For Private Respondent/s :
Mr. S.R. Shahi, Advocate
Mr. Rabindra Kumar Tiwary, Advocate
Mr. S.B.K. Mangalam, Advocate
Mr. Ravi Parmar, Advocate
For State Election Commission : Mr. R.S. Pradhan, Sr. Advocate
Mr. Sanjeev Nikesh, Advocate
Mr. Jainendra Kumar, Advocate
===========================================================
CORAM: HONOURABLE MR. JUSTICE V.N. SINHA
and
HONOURABLE JUSTICE SMT. NILU AGRAWAL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE V.N. SINHA)
Date: 08-07-2015
Heard learned counsel for the Appellant State and
the counsel for the Respondent writ petitioners.
2. This batch of Letters Patent Appeal arise out of
order dated 26.03.2010, passed by the learned Single Judge of this
Court in C.W.J.C. No. 677 of 2010 and other analogous matters
whereunder notification of the Government dated 26.05.2009
declaring Purnea Municipal Council (hereinafter referred to as the
Council) into Purnea Municipal Corporation (hereinafter referred to as
the Corporation) has been quashed holding that the area included
within the boundary limits of the Council to enable the Council to
become Corporation does not have the required 70% urban
Patna High Court LPA No.815 of 2010 dt.08-07-2015
5/9
population. In this connection, learned Single Judge has referred to
sub-clause-(2) of Article 243-Q of the Constitution and sub-section
(1) of Section 3 of the Bihar Municipal Act, 2007(hereinafter referred
to as the Act) which has been enacted to give effect to the aforesaid
constitutional provisions of Part IX-A of the Constitution. Learned
Single Judge having considered the reports received from the District
Magistrate, Purnia contained in Letter No. 84 dated 14.02.2009 and
from the Executive Officer of the Council contained in Letter No. 213
dated 17.02.2009, Annexures- 2A, 2 to L.P.A. No. 1429 of 2010
recorded such finding, as from the aforesaid reports he was satisfied
that urban population of the six Gram Panchayat(s) which is to be
included within the municipal limits of the Corporation as per 2001
census is 35,792 and less than 75% of its total population is engaged
in pursuits which is non-agricultural. Learned Single Judge having
considered the two reports also concluded that population of the
Council engaged in non-agricultural pursuit is 01,24,487 which is
60% of its total population 01,71,687 and in support of his conclusion
referred to entries in serial no. 9 of the report dated 14.02.2009. In this
connection, he also overruled the report of the Executive Officer of
the Council dated 17.02.2009 which clearly stated with reference to
entry in serial no. 9 of the report dated 14.02.2009 that non-
agricultural population of the Council is erroneously computed in
Patna High Court LPA No.815 of 2010 dt.08-07-2015
6/9
serial no. 9 as 60% and not 75%.
3. Learned counsel for the State submitted that
population of the Council as per 2001 census is 1,71,687 which is
evident from column no. 6(ka) of the report dated 14.02.2009 any part
whereof cannot be taken as non-agricultural population as the area
itself has been declared as Council, meaning thereby smaller urban
area as per Article 243-Q(1)(b) or medium urban area as per sub-
section (1) of Section 3 of the Act. The population of five Gram
Panchayat(s) which is to be included within the limits of Council
being 35,792, 75% of that population being engaged in non-
agricultural avocation as is evident from report dated 17.02.2009,
Annexure-2 of the Executive Officer of the Council, in appreciation of
such fact the Government proposed to include the said area in the
Council to enable the Council to become Corporation and as the
population of the Corporation after inclusion of five Gram
Panchayat(s) has become 2,07,479, none chose to submit any
objection to the proposal, the Government proceeded to notify the
area as Corporation, which is for the benefit of the residents residing
within the area.
4. Counsel for the writ petitioners questioned the
aforesaid submission with reference to the provisions contained in
sub-clause (2) of Article 243-Q of the Constitution, second proviso to
Patna High Court LPA No.815 of 2010 dt.08-07-2015
7/9
sub-section (1) of Section 3 of the Act and submitted that in terms of
the constitutional, statutory provision the area which is to be included
as part of the transitional, smaller, medium, large urban area must
have non-agricultural population of 75% or more. Learned counsel
further submitted that five Gram Panchayat(s) which is proposed to be
included within the Council has population of 35,792 and the
population engaged in non-agricultural pursuit should be more than
75% of 35,792 which is only 60% as is evident from report dated
14.02.2009, Annexure-2A.
5. Having heard learned counsel for the parties as also having gone through the two reports submitted by the District Magistrate, Purnea and the Executive Officer of the Council dated 14.02.2009, 17.02.2009, it is quite evident that the Council had 1,71,687 population as per 2001 census which was less than the population required for declaring that area a Corporation. Government having considered the nature and the non-agricultural pursuit of the population residing in the adjoining five Gram Panchayat(s) having total population of 35,792 of which 60% populace as per report of the Collector dated 14.02.2009, Annexure-2A were engaged in pursuits other than agriculture. Executive Officer of the Council, however, reported under report dated 17.02.2009, Annexure-2 that 75% population of the adjoining Gram Panchayat is engaged in pursuits Patna High Court LPA No.815 of 2010 dt.08-07-2015 8/9 other than agriculture. The Government sought objection from the people, as has been averred in paragraphs 4, 5 of the counter affidavit, but none submitted any objection and Government chose to notify the Council into Corporation by including five Gram Panchayat(s) as thereby the population of the entire area notified as Corporation became more than two lakhs.
6. The submission of the learned counsel for the writ petitioners that 75% population of the area, which is proposed to be included within the Council, must be engaged in non-agricultural pursuit, is misplaced in view of the fact that it is the population of the entire area which is now to be constituted as Corporation is to be considered for the purpose of first proviso to sub-section (1) of Section 3 of the Act. Total population of Corporation is 2,07,479, out of which 1,71,687 is the population of the Council, as such, after inclusion of the five Gram Panchayat(s) with 37,792 population in the Council the total population of the Corporation engaged in pursuits other than agriculture is much more than 75%.
7. In view of our discussion in paragraphs 5, 6 above, we do not find any error in the notification of the Government notifying Council into Corporation. The contrary view taken by the learned Single Judge is not in accordance with the constitutional provision and the law made to effectuate the constitutional provision Patna High Court LPA No.815 of 2010 dt.08-07-2015 9/9 as also report of the Executive Officer dated 17.02.2009, Annexure-2, as such, we have no option but to set aside the order dated 26.03.2010, which is, accordingly set aside. The appeals are allowed, however, there shall be no order as to costs.
(V.N. Sinha, J) (Nilu Agrawal, J) Rajesh/A.F.R. U