Research › Browse › Judgment

Patna High Court · body

1994 DIGILAW 56 (PAT)

Jageshwar Pd. Singh v. State of Bihar

1994-02-14

AFTAB ALAM

body1994
JUDGMENT Aftab Alum, J. The two writ applications challenge a common gazette notification and raise similar questions of law, hence, these two applications have been heard together and arc being disposed of by this judgment. CWJC 6944/88 2. Petitioner no. 1 in this ease is the Mukhiya of Khajepura Gram Panchayat and Up-Pramukh of Panchayat Samiti, Patna Sadar of which the aforesaid Gram Panchayat is a constituent; the other petitioners arc residents of the three villages, namely, Khajepura, Amurudha and Samanpura falling under Khajepura Gram Panchayat. It is stated in para 2 of the writ petition that each of these villages consist of a number of tolas. 3. Petitioners in this writ application challenge the notification dated June 22, 1988 (published in the Bihar gazette, extraordinary on June 27, 1988) purported to have been issued on the orders of the Governor of Bihar in exercise of powers under sub-section (3) of section 514 of the Patna Municipal Corporation Act, in so far as it includes within the limits of Patna Municipal Corporation parts of Khajepura, thana no. 11 with an area of 518.00 acres. A pholo copy of the notification is to he found at Annexure l and the entry relating to Khajepura which comes under challenge in this case is at serial no.11 of the notification. 4. The writ application was originally filed challenging the aforesaid notification dated June 22, 1988 primarily on the ground that it was issued without a notification under section 514 (1) of the Act and without affording an opportunity to the petitioners (and other residents of the villages in question) to raise any objection regarding the proposed inclusion of Khajepura within the limits of Patna Municipal Corporation. While the writ petition was still at the admission stage, the petitioners appear to have come to learn that the notification under section 514 (3) was actually preceded by a notification under section 514 (1) published in the official gazelle on 23.10.1975. The earlier notification under section 514 (1) was brought on the record as Annexure 5 along with a supplementary affidavit filed on 29.9.1988. The discovery of this notification constrained the petitioners to slightly modify their challenge. It was now asserted that the petitioners had no knowledge or information in respect of the notification published in the Gazette on 29.10. The earlier notification under section 514 (1) was brought on the record as Annexure 5 along with a supplementary affidavit filed on 29.9.1988. The discovery of this notification constrained the petitioners to slightly modify their challenge. It was now asserted that the petitioners had no knowledge or information in respect of the notification published in the Gazette on 29.10. 1975 and they were precluded from raising any objection regarding inclusion of the villages in question within the limits of the Patna Municipal Corporation. It was further asserted that no other mode was adopted by the authorities for informing either the Gram Panchayat or the residents of the villages in question regarding the proposed inclusion. CWJC 6171/93 5. This application has been filed by a Cooperative Society and its members. The Society and its managing committee (petitioners 1 and 2) claim to have established a residential colony in some part of village Khajepura; the other petitioners arc the residents of this newly established residential colony. The petitioners in this case also challenge the notification date 27.6.1978. In addition to the aforesaid notification, they also challenge a notice issued by the Patna Municipal corporation, (copy at Annexure 1) whereunder the Municipal Taxes of certain holdings in the newly established colony have been determined. 6. For challenging the notification dated 27.6.1978, learned counsel for the petitioners in CW.J.C No. 6171 of l993 adopted the submissions of Mr. S.S. Asghar Husain appearing for the petitioners in CW.JC No. 6944 of 1988. Hence, in my discussion hereinafter I shall he mainly referring to the statements male and submissions advanced in CWJC No. 6944 of 1988. Any special facts and circumstances relating to CW.JC No. 6171 of 1993 will be adverted to as and when the need arises. In the writ petition (and the supplementary affidavit filed in CWJC No, 6944 (If 1995) it is stated that notwithstanding the two notifications under sections 514 (1) and 514 (3), the villages in question continued to be under Khajepura Gram Panchayat and the two notifications remained completely ineffective and inoperative. In the writ petition (and the supplementary affidavit filed in CWJC No, 6944 (If 1995) it is stated that notwithstanding the two notifications under sections 514 (1) and 514 (3), the villages in question continued to be under Khajepura Gram Panchayat and the two notifications remained completely ineffective and inoperative. It was pointed out that even after the issuance of the notification under section 514 (3) In the year, 1978, the Panchayat election, for the Gram Panchayat in question, was held in 1979 and again in the year, 1984 and the Panchayat continued to be a constituent of the Panchayat Samiti, Patna Sadar; the petitioners continued to pay Panchayar Tax to the Gram Panchayat and Chowkidari Tax to the Government. It was further asserted that various Government schemes, such as Jawahar Rozgar Yojna, were implemented in the villages treating them as part of the Gram Panchayat. In this regard a Government publication, titled as Tawahar Rozgar Yojna, Annual Work Project, 1992-93 was produced before me; at page 26 of this publication Khajepura Gram Panchayat is mentioned at serial no. 114 and it cites the construction of drains and the paving of Kutcha path ways with bricks in the Gram Panchayat under the Harijan Yojna of this Scheme. A number of other irregularities relating to the boundaries and locations etc. of the villages in question as mentioned in the two notifications are also pointed out. 7. Besides the factual aspect of the matter as noted above, Mr. Husain assails the notification issued under section 514 (3) on a legal point as well. It was submitted that the notification under section 514 (3) was issued without fully complying with the requirements of section 514 (I) in as much as a mere publication of the notice inviting objections in the official gazette was not a sufficient compliance with the provisions of section 511 (1). At this stage it will be useful to take a look at section 514 (1) of the Act which is reproduced below: "514. Powers of State Government to include certain areas with the limits of Patna. - (1) The State Government, may, by notification in the official gazette and such of her manner as it may determine, declare its intention to include within the limits of Patna any specified area in the neighbourhood of Patna." (emphasis added) Mr. Powers of State Government to include certain areas with the limits of Patna. - (1) The State Government, may, by notification in the official gazette and such of her manner as it may determine, declare its intention to include within the limits of Patna any specified area in the neighbourhood of Patna." (emphasis added) Mr. Husain submitted that the use of the word "and" was 'very significant and it clearly indicated that in addition to publication in the official gazette, the authorities must take recourse to some other mode of publicity so that the intention of the Government to include certain areas within the limits of Patna Municipal Corporation may come within the knowledge of the concerned persons. It is assreted that save and except the gazette publication dated 20.10.1975, there was no declaration of the Government's intention to include Khajepura in the Patna Municipal Corporation by any other means. In support of his contention Mr. Husain' relied upon a Bench decision of this Court, reported in 1975 BBCJ 667 (paras 11 and 12 at page 673). This decision dealing with a provision of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land)' Act, held that publication in the official gazette may not be adequate and sufficient notice to the concerned persons. It is to be noted that the provision in the Ceiling Act (unlike section 514 (I) of the Patna Municipal Act) did not envisage any notice in addition to publication in the official gazelle and further stipulated that the publication in the gazette shall be conclusive evidence of the notice of the acquisition to the person or persons' concerned." Any yet this Court in the aforementioned decision held that in the facts and circumstances of a given case a publication in the gazette may not constitute sufficient notice to the concerned person. 8. On a consideration of the submissions advanced by Mr. Husain, I am of the opinion that in the absence of any other means to give reasonable publicity to the Governments' intention a mere, publication of the notice in the official gazette will not satisfy the requirements of section 514 (1) and shall also make the provision of section 514 (2) quite nugatory. 9. No counter affidavit has been filed in this case either on behalf of the State Government or on behalf of the Patna Municipal Corporation. 9. No counter affidavit has been filed in this case either on behalf of the State Government or on behalf of the Patna Municipal Corporation. I am, thus, left with no option but to accept the assertion made on behalf of the petitioners that save and except the gazette notification under section 514 (1), the authorities did not give any publicity to the Governments' intention in any other manner. It is thus understandable that the petitioners had no knowledge of the proposal to include Khajepura in the Patna Municipal Corporation and were, for this reason precluded from raising any objections against the proposed inclusion. Mr. Husain, accordingly, seeks a direction to the authorities to consider the petitioners' objections against the proposal as contained in the gazette notification dated 25.10.1975. I am of the opinion that the submissions made by Mr. Husain arc well founded and the pryaer made on behalf of the petitioners is very limited and reasonable. I, accordingly, set aside the impugned notification dated 27th June, 1978, a copy whereof is at Annexure 1, in so far as it relates to Khajepura at Sr. No. 11. It is further directed that the petitioners in these two applications may, if they so desire, file objections before the Commissioner, Patna Division by April 15,1994 in terms of section 514 (2) of the Patna Municipal Corporation Act against the Government's intention to include the villages of Khajepura Gram Panchayat within the limits of the Patna Municipal Corporation as evidenced from the notification dated 29.10.1975: It will be open to them to raise all objections on facts (including those relating to the boundaries and locations etc. as mentioned in the notification) and in law as may be available to them. In case such objections arc filed, the Commissioner shall dispose them of in accordance with law after hearing the parties and affording an opportunity to the petitioners to produce before him all the evidences on which they may rely. 10. Before concluding I may note that (in CWJC No. 6171 of 1993) the petitioners' additional challenge to the notice issued by the Corporation is that the annual rental value of the holdings and the municipal taxes were determined without following the provisions of Chapter XI of the Patna Municipal Corporation Act. 10. Before concluding I may note that (in CWJC No. 6171 of 1993) the petitioners' additional challenge to the notice issued by the Corporation is that the annual rental value of the holdings and the municipal taxes were determined without following the provisions of Chapter XI of the Patna Municipal Corporation Act. I may only observe that if and when this area is included within the local limits of the Corporation, the authorities shall determine the Municipal Taxes payable- on holdings following the provisions of Chapter XI and the rules, if any, framed thereunder. 11. With these observations and directions, these applications are allowed. No order as to costs.