Dismissed

Pulendra Kumar Singh and Anr. v. the State of Bihar and Ors.

Patna HC29 Apr 2011CWJC/737/2010

Case brief

AI extract

What is this about?

Two petitioners challenged the conversion of seven Panchayats into a Nagar Parishad under the Bihar Municipal Act 2007. The court dismissed the writ petition, holding the matter had attained finality in a prior division bench judgment. The court held that statutory requirements were met and the petitioners could not relitigate under different masks.

What did the court decide?

The writ application was dismissed as the matter had attained finality and the petitioners could not be said to have been prejudiced.

Pulendra Kumar Singh and Anr. Vs the… — Constitutional and Fundamental Rights | Patna HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.737 of 2010

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PULENDRA KUMAR SINGH S/O LATE RAMJEEVAN SINGH R/O VILL.- GARHARA, P.S.- BARAUNI, DISTT.- BEGUSARAI

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RAJAN KUMAR CHOUDHARY S/O LATE MISHRI CHAUDHARY R/O VILL.- GARHARA GORHIYARI TOLA, P.S.BARAUNI, DISTT.- BEGUSARAI

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Versus

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THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY URBAN DEVELOPMENT AND HOUSING DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA

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THE SECRETARY URBAN DEVELOPMENT AND HOUSING DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA

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THE JOINT SECRETARY URBAN DEVELOPMENT AND HOUSING DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA

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THE COMMISSIONER MUNGER DIVISION, MUNGER

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THE DISTRICT MAGISTRATE BEGUSARAI

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THE ADDITIONAL COLLECTOR (REVENUE) BEGUSARAI

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THE SUB-DIVISIONAL OFFICER TEGHRA SUB-DIVISION, DISTT.- BEGUSARAI

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THE CIRCLE OFFICER-CUM-BLOCK DEVELOPMENT OFFICER CIRCLE/BLOCK, DISTT.- BEGUSARAI

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THE STATE ELECTION COMMISSION, BIHAR SONE BHAWAN, THIRD FLOOR, BIRCHAND PATEL MARG, PATNA, THROUGH ITS SECRETARY

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10. THE SEC SONE BH PATNA	RETAR AWAN,	Y STATE ELECTION COMMISSION, BIHAR, THIRD FLOOR, BIRCHAND PATELL MARG, -----------
For the petitioner	:	Mr. Y.V. Giri, Sr. Adv. Mr. Vinay Ranjan
For the State	:	Mr. Ashok Kumar Choudhary, SC XIII Mr. Narendra Kumar Jha, AC to SC XIII
For State Election Commission.	: :	Mr. R.S. Pradhan, Sr. Adv. Mr. Sanjev Nikesh, Advo.
For the Intervenors	:	Mr. Shivajee Pandey, Sr. Adv. Mr. Ashwani Kumar Singh, Sr. Adv. Mr. Manish Kumar, Advocate.

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8 29.04.2011 Heard learned counsel for the petitioner and the

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State.

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The two petitioners, stated to be residents of village-Garhara in the district of Begusarai, are aggrieved by the final notification dated 25.05.2009 issued by the State Government amalgamating seven Panchayats including Garhara converting them into Nagar Parishad, Bihat under Section 6 of the Bihar Municipal Act, 2007 (hereinafter called the Municipal Act)

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Earlier the same notification had been challenged by the elected representatives of the Panchayats concerned in C.W.J.C. No.11475 of 2009 disposed on 11.09.2009. The court shall revert to that order subsequently in the present discussion.

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Learned counsel for the petitioner submits that objections had been filed before the District Magistrate on 16.01.2009, in terms of the draft notification published on 29.12.2008 under Section 4 of the Municipal Act. The final notification dated 25.05.2009 does not state that the objections have been taken into consideration. The objections have not been considered. The statutory procedure under Section 5 of the Act, mandating consideration of the objections having not been complied with, the final notification is contrary to the law. In support of the assertion that the objections had been filed on 16.01.2009 reliance is placed on the receiving granted to

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the petitioners appended to the rejoinder to the counter affidavit.

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On the submission of the petitioners the court had called for the original register as the Xerox copy furnished by the petitioners was faint.

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Learned counsel for the State submitted that the objections were required to be filed before the State through District Magistrate or the Divisional Commissioner as mentioned in the draft notification. It is apparent from the original register that the objections were filed before the Director, Accounts, Administration and Appointment, Begusarai. If objections were filed before an authority other than that as specified in the draft notification it cannot be said that any objection had been filed so as to vitiate the final notification. It has been stated in the counter affidavit in no uncertain terms that no objections had been filed. It was lastly submitted that the matter attained finality with the order of the court in C.W.J.C. No.11475 of 2009 when this Court declined interference with the final notification on merits, only granting liberty to the petitioners therein to represent. Their representation has been considered and disposed of on 07.12.2009. It has attained finality and has not been questioned by the petitioners in C.W.J.C. No.11475 of 2009. One of the petitioner's therein was the

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Mukhiya, Garhara, Panchayat, in a representative capacity. The same matter cannot be re-agitated under different masks by different persons from the Garhara Panchayat.

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Counsel for the petitioner strenuously sought to pursuade the court on issues that at the relevant time there was strike. The objections were filed before the authorities designated by the District Magistrate. The contention that it was filed before an authority other than that specified is not correct.

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The decision to progress from a Panchayat to a Nagar Parishad is basically an executive matter. It is however regulated by statutory requirements. This conversion is nothing but only an indication of the development of the society matching the aspirations of the people who desire a better standard of living social, political and economic as the benefits that flow to a Nagar Parishad are better and for improved than that available to the Panchayat. A developing society is not static. Therefore, it is not each and every error in procedure that may necessarily call for interference by the writ court. Unless grave prejudice is shown to have been caused, the writ court shall not lightly to interfere. The conversion of the Panchayat to a Nagar Parishad is a serious exercise from

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public resources involving considerable man power, manhours and public finances. It cannot be lost sight of that the petitioners are the residents of Garhara Panchayat. Their mukhiya was the petitioner in C.W.J.C. No.11475 of 2009. Whatever be said and done by their mukhiya shall continue to bind them. They cannot acknowledge their mukhiya when he asserts and disown him when it does not suit them. They shall have to stand by, stand together and fall with the mukhiya.

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In the former writ petition the court had called for the original records. The challenge was that 75% of the populations were not non-agriculturists mandatory requirements under Section 3 of the Act.

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It was also alleged that the publication had not been done in the manner prescribed. A finding was recorded by the Division Bench that “there is a deliberate attempt on behalf of the petitioner to mislead this Court ……”. On perusal of the original file the court was satisfied that 75% of the populations were non-agriculturists. The Division Bench however granted liberty to represent.

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Once the Division Bench did not find factual statutory jurisdiction in the claim of the mukhiya, it applies uniformly to the controversy in issue whether it was pursued by the mukhiya or it is being pursued by the

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present petitioners. Once a finding had been arrived that statutory requirements had been followed, whether the petitioners had filed an objection or not and whether it has been considered or not are irrelevant.

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If this Court were to acknowledge the duty of the respondents to individually consider each and every objection filed, it would be giving an unreasonable interpretation and meaning to the statutory provision of Section 5 of the Act which may well defeat the very purpose of the Act. The act of considering an objection shall suffice unless a subsequent objection raises an important issue not canvassed, and which is not the case of the petitioners presently.

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The court is satisfied that the issue of the creation of the Nagar Parishad, Bihat achieved finality when the Division Bench refused to interfere with the matter in C.W.J.C. No.11475 of 2009 on merits. The liberty granted to file a representation was not a part of the statutory procedure prescribed under Section 5.

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The observation made therein to file a representation did not furnish a fresh cause of action to the petitioners therein much less the present petitioners or any other person to maintain a fresh cause of action on subsequent order that may have been based on such

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representation. That is the only reason that the mukhiya of the petitioner’s panchayat has chosen not to pursue the final order dated 07-12-2009 disposing his representation. The effect of such an order has been considered in (2008) 10 SCC 115 ( C. Jacob v. Director of Geology and Mining ) it has been held at paragraph 11 as follows:-

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11. When a direction is issued by a court / tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so my amount to disobedience. When an order is passed considering and rejected the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of “acknowledgment of a jural relationship” to give rise to a fresh cause of action.

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If the draft notification provided the objections to

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be filed before the District Magistrate or the Divisional Commissioner, it was required to be filed in the manner pescribed and in no other manner. If the representation was filed before an authority other than the two specified, clearly there was no representation filed to be considered. The submission on behalf of the petitioners that there was a strike, the District Magistrate had directed the objections to be filed at the specified place where it was subsequently

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done so by the petitioners are all disputed questions of fact which in any event are not relevant. in view of the finding arrived at by the Division Bench in C.W.J.C. No.11475 of 2009 that the statutory procedure had been followed before publication of the final notification. The petitioners cannot be stated to have prejudiced in any manner. There is no merit in this application it is dismissed.

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The restraint order prohibiting publication of election results of the newly created Nagar Parishad dated 05.02.2010 obviously loses its efficacy and validity.

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(Navin Sinha, J.)

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Pulendra Kumar Singh and Anr. v. the State of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Pulendra Kumar Singh and Anr. v. the State of Bihar and Ors.

Case brief

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