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2002 DIGILAW 591 (PAT)

Qazi Ahmad Azam v. State Of Bihar

2002-05-09

R.S.GARG

body2002
Judgment 1. Heard. 2. By this writ application under Article 226 of the Constitution of India, the petitioner seeks a relief that the notification dated 30-8-2001 (Annexure-3) under which the Dumraon Municipality has been converted in the Dumraon Nagar Panchayat be quashed as the notification Annexure 3 has been issued without taking into consideration the objections raised by the residents of the said local area and without taking into considerations the census figures and the other attending circumstances. It is not in dispute before me that vide Annexure 1, on 3-5-2001 the State Government notified its intention to declare particular notified area Committee and Municipalities to be declared as Nagar Panchayat under Sec. 4 read with Sec. 6 of Bihar and Orissa Municipal Act. With the said Annexure 1 a list of 77 Municipalities etc. were annexed, objections were invited and it was further observed in Annexure 1 that the objections received before the last date shall be considered under Sec. 4 of the Act. According to the petitioner vide Annexure dated 16-6-2001 certain objections were filed and in the said objections it was clearly mentioned that Dumraon Municipality was a municipality for long many years, its population was more than forty thousand, it had the industrial development, the area was almost about 19 Sq. Kms., it also had a railway station and concrete roads. It was also stated in the said objections that according to the census of 2001 only 3118 persons were engaged in the agricultural activities while others were engaged in other activities. It was also submitted that the provisional census figures were already published and as such the State Government should not convert the municipality into a Nagar Panchayat. From Annexure 3, it appears that on 30-8-2001 the State Government declared and converted Dumraon Municipality into a Nagar Panchayat. The petitioner is aggrieved by the said notification dated 30-8-2001 bearing No. 2651. 3. In the counter it has been contended that the final figures of the census had not been published, therefore, the census publication dated 21-7-2001 was not available or was not in existence, the State Government was absolutely justified in converting the Dumraon Municipality into Dumraon Nagar Panchayat. 3. In the counter it has been contended that the final figures of the census had not been published, therefore, the census publication dated 21-7-2001 was not available or was not in existence, the State Government was absolutely justified in converting the Dumraon Municipality into Dumraon Nagar Panchayat. It has also been contended that the State Government, while converting the municipality into Nagar Panchayat has taken into consideration all the attending circumstances and after due application of mind a conscious decision as contained under Annexure 3 has been taken. 4. In the counter not even a single word has been expressed about Annexure 2 or any conscious decision upon it. When the order was under dictation, learned counsel for the State rose to the occasion and said that the State Government has denied about submission of existence of Annexure 2, for the purpose he referred to paragraph 9 of the counter-affidavit. The paragraph 9 of the counter-affidavit reads as under:- "9. That with regard to the allegation set out in paragraph 15 of the writ petition under reply that the notification (Annexure 1) was not properly published in the locality and the general people of the town never got knowledge of the notification, the deponent states that the contention of the petitioner is not correct as the petitioner in his own statement admitted in paragraph 16 that many people filed their objections praying inter alia declaring Dumraon Town as Nagar Parishad and as such the averments made in this paragraph under reply is not correct and denied." 5. After going through paragraph 9 of the counter-affidavit I was at a loss to read even a single word about Annexure 2 or any conscious decision over it, but the learned counsel for the State said that because of the general denial, this Court must presume that Annexure 2 was never submitted, therefore, no decision was required to be taken upon it. I fail to understand this argument and its propriety. The law of pleadings in this country is very clear, it requires a defendant/respondent to be very candid and clear in a case, when he is making specific denial about particular things and any evasive denial can never be said to be a positive denial. I fail to understand this argument and its propriety. The law of pleadings in this country is very clear, it requires a defendant/respondent to be very candid and clear in a case, when he is making specific denial about particular things and any evasive denial can never be said to be a positive denial. Paragraph 9 simply says that the petitioners contention that no wide publicity was given to Annexure 1 was incorrect because in paragraph 16, the petitioner had itself said that number of persons made the objections. If, for the purposes of supporting Annexure 1, the respondent State is taking shelter under paragraph 16 of the writ application then it must be presumed against them that the objections were filed. In paragraph 9 or in the body of the counter, it is nowhere said that the objections were received or the same were decided with a conscious and acceptable approach. 6. Be that as it may the fact remains that certain objections were filed. 7. Learned counsel for the State next contended that while issuing Annexure 1, the State Government was not armed with the census figures because the same were published on 21-7-2001, therefore, the State Government was justified in converting Dumraon Municipality in Dumraon Nagar Panchayat. This strange argument must be rejected and condemned. The second paper of 2001 was published by the Director of Census Operations, Bihar on 21-7-2001. In the preface of the same, it has been clearly mentioned that on the basis of the abstracts, the provisional population figures of the State (State of Bihar) were released on 27-3-2001 in the form of paper 1 containing provisional figures with regard to total population, population in the age group 0-6 and literate population. From the contents of the preface, it would clearly appear that paper 1 of 2001 in relation to the census was published on 27-3-2001. Undisputedly first paper was published much before issuance of Annexure 1. 8. The argument of learned counsel for the State even if is examined on the understanding of the reasonableness then too it has to be rejected. Second paper of census was published on 21-7-2001 and Annexure 3 was published on 30-8-2001 i.e. much after publication of the second paper. I am unable to understand the propriety of the argument raised by the learned counsel for the State. Second paper of census was published on 21-7-2001 and Annexure 3 was published on 30-8-2001 i.e. much after publication of the second paper. I am unable to understand the propriety of the argument raised by the learned counsel for the State. Before issuance of intention under Sec. 4 of Bihar and Orissa Municipal Act, the first paper was available and before issuance of the final notification as contained in Annexure 3, the second paper and the figures were again available with the State. 9. In the return/counter-affidavit it has been repeatedly said that unless the final figures are published the census figures available in the second paper would not provide any foundation in favour of the petitioner nor the State is obliged to take note of the same. At the time of the arguments, learned counsel for the State Government produced a copy of the letter dated 20-3-2002 issued by the Director of Census Operations, Bihar. In the said letter the said Director has informed the Secretary of the Government (Urban Development Department) that paper 1 and paper 2 relating to the census have already been published and the said figures can be used and utilised after their publication, though the said figures published in paper 1 and paper 2 were not final. The said letter further says that there is a scope of little margin of error in the figures published in the provisional figures and the final figures. The said letter does not take the case of State Government and its officials any further rather it gave dent to their defence when the Director of Census says that the figures as published under paper 1 and paper 2 can be used and utilised, then there is no scope for the State Government to say that the said figures being provisional cannot be taken use of. 10. On page 46 of paper 2 details relating to Dumraon Municipality have been given. The civic populace of the city/town has been shown as Municipality. It is shown to be an urban area with a populace of 45,796. The child group between age of 0-6 is 7902, literates are shown to be 24714. If these are the figures then I find no reason to hold that these figures would not provide a foundation to the State Government to assess viability of a particular area to be declared as Municipality. The child group between age of 0-6 is 7902, literates are shown to be 24714. If these are the figures then I find no reason to hold that these figures would not provide a foundation to the State Government to assess viability of a particular area to be declared as Municipality. It is not expected of the State Government that it would blindly accept certain figures supplied by its own agency and would ignore the figures supplied by the Department of Census. The petitioner has made clear submissions in his writ application that Dumraon Municipality in fact is a Municipality area/urban area and the said municipality is functioning for long many years. In the counter-affidavit filed by the State Government not even a single stand has been taken to say that for what particular reasons an existing Municipality has been converted into a Nagar Panchayat. The counter-affidavit simply says that the figures of the census have not been finally published, the population of Dumraon Municipality in the year 1991 was 35202, which was less than 40000, therefore, it cannot be declared as a municipality. Rise in population is a notorious fact and judicial notice of the same can be taken specially when the presumption is in favour of the correctness of the figures published by the Department of Census. The figures of 2001, according to the State Government have yet not been published, therefore, the same cannot be used and utilised. In my opinion this objection is a self-serving objection only to satisfy the whims and the caprice of the authorities, who without looking into the census and its figures or the utility of the figures have issued Annexure 3. 11. Sec. 4 of Bihar and Orissa Municipal Act provides that the State Government may declare its intention to constitute or alter the limits of the municipality. A municipality has been defined under the Act. Looking into the population and the other facilities available specially the urban development, the State Government has to take a conscious decision that a particular area is to be declared as a municipality or a Nagar Panchayat. A Nagar Panchayat means any transitional area that is to say an area in transition from a rural area to an urban area. Looking into the population and the other facilities available specially the urban development, the State Government has to take a conscious decision that a particular area is to be declared as a municipality or a Nagar Panchayat. A Nagar Panchayat means any transitional area that is to say an area in transition from a rural area to an urban area. In the present case undisputedly Dumraon Municipality was not in a transitional period because much before its declaration as Nagar Panchayat, it was in existence as a Municipal Council. 12. Taking into consideration the totality of the circumstances, I am of the opinion that the Annexure 1 so far as it relates to Dumraon Municipality is concerned deserves to be quashed, it is accordingly quashed. 13. The State Government is hereby directed to take into consideration the census figures and all other attending circumstances and thereafter issue fresh notification. The petition is allowed. Petition allowed.