Dismissed

Rakesh Kumar Singh v. the State of Bihar and Ors.

Patna HC12 May 2011CWJC/6509/2010

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the notification constituting Ekma Bazar Nagar Panchayat. The court held that the petitioner failed to allege specific facts regarding procedural non-compliance in the initial petition and could not raise such vague issues through a rejoinder.

What did the court decide?

The writ petition was dismissed as it lacked merit due to the absence of specific allegations of procedural non-compliance in the initial petition.

Rakesh Kumar Singh Vs the State of Bihar and Ors. — Municipal and Town Planning | Patna HC (2011)

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 IN THE HIGH COURT OF JUDICATURE AT PATNA

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 CWJC No.6509 of 2010

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1. RAKESH KUMAR SINGH S/O SHRI HARIHAR SINGH R/O VILL.- BHORHOPUR TOLA
GANJ, P.S. EKMA, DISTT.- SARAN

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 Versus

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1. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, OLD SECRETARIAT,
PATNA

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2. THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT DEPARTMENT, GOVT. OF
BIHAR, PATNA

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3. THE STATE ELECTION COMMISSION THROUGH ITS SECRETARY, PATNA
4. THE DISTRICT MAGISTRATE-CUM-THE DISTRICT RETURNING OFFICER
(MUNICIPALITY), SARAN

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5. THE JOINT SECRETARY, URBAN DEVELOPMENT AND HOUSING DEPARTMENT,
GOVT. OF BIHAR, PATNA

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 -----------

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12.05.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State.

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The petitioner is aggrieved by the final notification dated 14.1.2010 constituting Ekma Bazar Nagar Panchayat by amalgamation

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of seven villages including Ekma.

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Learned Counsel for the petitioner submits that 80% of the population of the Gram Panchayat is based on agriculture and therefore they did not fulfill requirements for conversion into a Nagar Panchayat. The notification was therefore ultravires Section 3(1) of the Bihar Municipal Act, 2007 (hereinafter referred to as „the Act‟).

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There is no assertion in the writ petition that the statutory procedure under Section 4 of the Act with regard to draft publication was not followed. There is no assertion in the writ petition that Section 5 of the Act was complied with when the petitioner has filed objections to the draft notification but which has not been considered before publication of the final notification.

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The respondents have filed their counter affidavit stating in no uncertain terms that more than 75% of the population in the newly constituted Panchayat was engaged in non-agriculture activities. This was duly ascertained in an enquiry whereafter draft notification was

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published on 4.6.2009 inviting objections. No objections were received in response to the draft notification.

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A rejoinder to the counter affidavit has been filed in which it has been stated that if a draft notification was published on 4.6.2009 it is within the exclusive knowledge of the respondent authorities alone. There would be a presumption under Section 114(e) of the Evidence Act that the statutory procedure was followed. It was for the petitioner to make a specific assertion of fact in the writ petition that statutory procedures were not followed. The law stands well settled that where an allegation is made with regard to non compliance of statutory procedure that objection has to be raised at the very initial stage and specifically pleaded in no uncertain terms. It is more than apparent that in view of the statements made in the counter affidavit with regard to compliance of statutory procedures, a bald statement has been made in Para 5 of the rejoinder as an after thought that the draft notification was never published in any newspaper or in a vernacular daily and that it had not been pasted at public place to allow the people to become aware and file objections.

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In AIR 1998 SC 1608 (M/s Larsen and Turbro Ltd. Etc. v. State of Gujarat and others) the Court has observed at paragraph 10 as follows:-

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“10…..There were, however, no particulars stated in the petition as to how it could be so said. It is not enough to allege that a particular Rule or any provision has not been complied. It is a requirement of good pleading to give details, i.e. particulars as to why it is alleged that there is non-compliance with a statutory requirement. Ordinarily, no notice can be taken on such an allegation which is devoid (of) any particular. No issue can be raised on a plea

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foundation of which is lacking. Even where Rule Nisi is issued, it is not always for the department to justify its action when the Court finds that a plea has been advanced without any substance, though ordinarily department may have to place its full cards before the court…”

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Learned Counsel for the petitioner next sought to persuade this Court from the pleadings contained in Para 10 of the rejoinder that the procedure prescribed under Section 11 of the Bihar Panchayat Raj Act for consultation with the Panchayat has also not been followed. He sought to place certain judgments in aid.

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In absence of any assertion in the writ petition with regard to such statutory non compliance of procedure, and the pleadings in this regard in Para 10 of the rejoinder as an after thought are also vague and not specific. The Court is not persuaded to entertain the same. The principles of the writ jurisdiction are salutary. All assertions of fact have to be made in the writ petition at the initial stage which are then required to be dealt with in counter affidavit. If circumstances so warrant and the petitioner is of the opinion that certain incorrect or improper statements are being made in the counter affidavit in context of what has been stated in the writ petition, the petitioner certainly has a right to file a rejoinder for clarification. If there is any new information/material available to him and which was not available when the writ petition was filed in such limited circumstances a rejoinder to the counter affidavit may bring in new facts. But if entire charges sought to be brought in by way of rejoinder in a vague manner was specifically open and available to be raised in specific terms in the writ petition itself, such matters cannot be brought in by a back door method through a rejoinder to be

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enthuse life in the writ petition which originally had nothing as an after thought to fill in lacunae in view of the counter affidavit.

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There is no merit in the writ petition. It is accordingly dismissed.

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Snkumar/- (Navin Sinha,J.)

Rakesh Kumar Singh v. the State of Bihar and Ors.

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Rakesh Kumar Singh v. the State of Bihar and Ors.

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