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2011 DIGILAW 604 (PAT)

Kumkum Devi v. State Of Bihar

2011-04-08

NAVIN SINHA

body2011
JUDGEMENT 1. I.A. No. 1837 of 2011 has been filed by the intervener seeking leave to be impleaded as intervener respondent. Pressing the intervention application it is submitted that he is a Ward Member of the Munger Nagar Parishad and opposes the writ application which questions conversion of the Nagar Parishad into a Municipal Corporation. 2. Having heard learned Counsel for the parties the intervention application is allowed. 3. Learned Counsel for the petitioner raises more than one issue questioning the conversion of Munger Nagar Parishad into Munger Municipal Corporation. The Court however does not consider it necessary to deal with all the issues as the writ application can well be disposed off on a preliminary issue alone. 4. Learned Counsel for the petitioner has made a specific submission supported from the pleadings in Para 18 of the writ application that the draft publication, under Section 4 of the Bihar Municipal Act, 2007 (hereinafter referred to as the Act), of the intention of the Government to convert the Nagar Parishad into Municipal Corporation dated 25.2.2009 was not published in the manner prescribed under Section 4 of the Act. The Statute prescribes publication of the notification in the Official Gazette and in at least two leading newspapers at least one of which must be in vernacular intelligible to the inhabitants of the local area concerned. It was further required to be pasted at a conspicuous place in the office of the Collector of the district, in the office of the Municipality and in such other public places as the as the State Government may direct. A public proclamation about the constitution of municipal area was also required by beating of drum throughout the local area concerned or through any other publicity media. The purpose was salutary to make the people adequately aware to enable them to file statutory objection, if any, under Section 5 of the Act. If this has not been done as alleged the final notification dated 26.5.2009 shall be vitiated as the statutory procedure had not been followed. 5. Learned Counsel for the intervener invites attention of the Court to Para 9 of the intervention application corresponding to Para 10 of its counter affidavit to submit that the statutory procedure under Section 4 of the Act was followed. 6. 5. Learned Counsel for the intervener invites attention of the Court to Para 9 of the intervention application corresponding to Para 10 of its counter affidavit to submit that the statutory procedure under Section 4 of the Act was followed. 6. The Court finds from the aforesaid paragraphs that it only states that the draft notification was pasted at wide level at public places and places proclaimed by publicity media. The Court finds the assertion to be vague. It does not state at which public place it was published and on what date. The mode, method and manner of public proclamation by publicity media has also not been explained, apart from any date with regard to the same. There is no statement with regard to Newspaper publication and notice by beat of drum. In any event of the matter the performance of the statutory duty was not of the intervener but of the State authorities. Whether the statutory procedure was followed or not, the State authorities are best suited to answer and most competent to do so. 7. A counter affidavit has been filed on behalf of Respondents 2 and 3 affirmed by an officer of the rank of Deputy Secretary cum Director, Urban Development and Housing Department. Para 9 of it states, that no objection or suggestion for constitution of the Municipal Corporation was received in response to the draft notification. It then goes on to state that after statutory time final notification was issued. Dealing with Para 18 of the writ application, the specific assertion of the petitioner that statutory procedures of Section 4 were not followed, it suggests that a request was made by the deponent and the District Magistrate Munger to the Director Information and Public Relation, Bihar at Patna for publishing the notification in two new papers. Even this pleading is silent on the statutory procedure prescribed in other two sub-sections of Section 4 of the Act. The pleading is too vague. It does not even mention name of any of the newspaper and whether publication was done. The document dated 26.2.2009 from the Urban Development Department addressed to the District Magistrate Munger and the Director, Information and Public Relation, Government of Bihar are equally vague and to similar effect. 8. The conversion of a Municipal Corporation from a Nagar Parishad is a serious matter. The document dated 26.2.2009 from the Urban Development Department addressed to the District Magistrate Munger and the Director, Information and Public Relation, Government of Bihar are equally vague and to similar effect. 8. The conversion of a Municipal Corporation from a Nagar Parishad is a serious matter. It requires an exercise of gigantic proportions to be carried out under Section 3 of the Act. This naturally involves long man hours, manpower and finance. The conversion of the Nagar Parishad into Municipal Corporation is a manifestation of the forward march of the society with the populous aspiring for a better standard of living reflecting the aspirations of the people. That the matter is serious needs no further emphasis. 9. The State Government is not a human entity. It acts through its officers in whom it places trust to act in the best interest of the State Government and to protect interest of the State Government. The power in the officer concerned is not an inherent power but flows on him through the chair on which he sits. The manner in which the officials of the State Government have filed a counter affidavit shocks the Court. If this Court where to interfere today it would set at naught the complete exercise done leading to the draft notification under Section 4 followed by all other exercise done in pursuance thereof. Not only the man hours and man power shall be lost but the finance has also been frittered away. It has generated litigation which the State has to contest from the public exchequer. Virtually a defenseless case has been put on behalf of the State. The answerability and accountability has to be fixed. That is for the State Government to decide. 10. If a question has been raised before the Court that statutory procedure prescribed has not been followed the Court is primarily concerned with the decision making process. If the Statute mandates a procedure to be followed any act done in violation of that procedure is a nullity. 11. The draft notification dated 25.2.2009 and the final notification dated 26.5.2009 converting the Munger Nagar Parishad into Munger Municipal Corporation is set aside. 12. The writ application stands allowed.