Case Background
This case arose from a decision of the State Government of Bihar to upgrade Nagar Panchayat Simri Bakhtiyarpur into a Nagar Parishad by adding two nearby Gram Panchayats, Khamhauti and Simri, both in District Saharsa.
The petitioner is a resident of Simri Gram Panchayat. He challenged the State Government’s final notification dated 03.03.2021 issued under Section 6 of the Bihar Municipal Act, 2006, by which the upgradation and inclusion of these Gram Panchayats into the municipal area was carried out.
Before this final step, the Urban Development and Housing Department had issued a prior notification dated 26.12.2020. In that earlier notification, the Department announced its intention to upgrade Nagar Panchayat Simri Bakhtiyarpur to Nagar Parishad (Simri Bakhtiyarpur) and to include Simri within its area. This was done under Section 4 of the Bihar Municipal Act, 2006, which requires the Government to declare its intention and invite objections.
As required, objections were invited from the inhabitants of the affected area. The notification clearly stated that objections would be considered only if they were filed through the Divisional Commissioner or the District Magistrate.
The petitioner, along with others, filed a joint objection under Section 5 of the Act before the Commissioner, Koshi Division, Saharsa and the District Magistrate, Saharsa. After this process, the Government proceeded to issue the impugned final notification dated 03.03.2021 under Section 6, completing the upgradation and expansion of the municipal area.
What the Court Examined and Decided
The Patna High Court, in a Division Bench comprising Hon’ble Mr. Justice Chakradhari Sharan Singh and Hon’ble Mr. Justice Madhuresh Prasad, examined two main aspects.
First, whether the inclusion of the villages Simri and Ashrafchak, under Simri Gram Panchayat, in the upgraded Nagar Parishad violated the statutory condition relating to the percentage of agricultural workers under the Bihar Municipal Act, 2006.
Second, whether the State Government had failed in its duty by not passing a specific speaking order on the petitioner’s objection under Section 5, and by allegedly leaving the decision to a district level committee.
The petitioner pleaded that in both revenue villages Simri and Ashrafchak, the population of main and marginal workers in agriculture was more than 50% of the total workers. According to him, this exceeded the permissible limit laid down in the guidelines and in the second proviso to Section 3(1) of the Act. He relied on 2011 census data to support his claim.
On this basis, he argued that including these villages in the upgraded Nagar Parishad was illegal. He further contended that Section 5 requires the State Government itself to consider objections. According to him, in this case the objections were only looked at by a district level committee, and the Government mechanically issued the notification dated 03.03.2021 without applying its independent mind or passing any order on the objections.
The State of Bihar filed a counter affidavit. It specifically stated that in the upgraded Nagar Parishad, the total percentage of main cultivator and marginal cultivator workers was only 24.36% of the total workers. Thus, the legal requirement that agricultural workers be below 50% in “such area” was fully met.
The State further explained that objections and suggestions received under Section 5 were first considered by a district level committee. The committee’s decision or suggestions were then forwarded to the Department. Only after taking these objections and the committee’s input into consideration did the State Government issue the final notification dated 03.03.2021.
The Court carefully examined the joint objection filed by the petitioner and three others, which opposed the proposed upgradation and inclusion of Simri and Ashrafchak. The objection was based on the claim that in those two villages alone the number of cultivator and marginal cultivator workers constituted more than 50% of the total workers there, making their inclusion impermissible.
The Bench turned to the statutory requirement in the second proviso to Section 3(1) of the Bihar Municipal Act, 2006, which says:
“Provided further that the total population of main cultivator workers and marginal cultivator workers shall be below fifty percent of total population of workers in such area in all cases.”
The key question was how to understand the expression “such area”. The Court noted that, on the petitioner’s interpretation, the 50% test had to be applied separately to each individual village or Gram Panchayat proposed to be included in the upgraded municipality.
The Court rejected this reading as fallacious. It relied heavily on an earlier Division Bench judgment of the Patna High Court dated 17.01.2022 in CWJC No. 7446 of 2021, Usha Devi vs. The State of Bihar & Ors. In that case, the Court had already interpreted Sections 3 and 7 of the Act and the phrase “such area”.
Quoting paragraphs 21 to 23 of Usha Devi, the Bench explained that “such area” refers to the entire urban area that is proposed to be constituted or upgraded as a municipal area, not to each individual village or Gram Panchayat being added. Therefore, population, density, revenue, percentage of employment in non-agricultural activities and similar requirements are to be assessed with respect to the whole municipal area that will come into existence after upgradation, not village by village.
Applying this reasoning, the Court held that the petitioner’s attempt to attack the notification by focusing only on Simri and Ashrafchak villages was misconceived. What mattered was the overall composition of workers in the upgraded Nagar Parishad. Since the State’s affidavit stated that main and marginal cultivator workers in the entire upgraded area were only 24.36%, no violation of the second proviso to Section 3(1) or of Sections 3(1) and 7 had been made out.
On the second limb of the petitioner’s argument, regarding non-consideration of objections, the Court again relied on Usha Devi. In that earlier decision, the Patna High Court had examined the nature of the powers exercised under Chapter II of the Bihar Municipal Act, 2006, read with Article 243Q of the Constitution of India. It held that notifications declaring intention and constituting municipal areas under Sections 4 and 6 are legislative in character, even though they are issued under Article 166 of the Constitution.
Because the function is legislative and not adjudicatory, the Act only requires that objections be invited and taken into consideration. It does not require the State to pass separate, reasoned, quasi-judicial orders disposing of each objection. The requirement to follow principles of natural justice, like passing a detailed order on objections, does not apply to this kind of legislative action.
To reinforce this point, the Division Bench quoted at length from the Supreme Court judgment in Sundarjas Kanyalal Bhatija & Others vs. Collector, Thane, Maharashtra & Others, (1989) 3 SCC 396. The Supreme Court had held that the formation of a municipal corporation is a legislative process, not an administrative or adjudicatory one. As long as statutory conditions such as publishing a draft notification and considering representations are met, courts cannot insist on hearings or reasoned orders, nor can they substitute their own judgment for that of the Government.
Following this binding precedent and its own earlier ruling in Usha Devi, the Bench held that the petitioner’s demand that the State Government pass a specific order on his objection was unsustainable. Chapter II of the Bihar Municipal Act, 2006, “consciously omits” any requirement for disposal of objections or passing orders thereon. It only mandates that the Government consider them before taking a final decision.
The Court noted that objections were invited, they were considered, and thereafter the State Government issued the notification dated 03.03.2021. Once this process has been followed and a notification has been issued, it is not open to a constitutional court, in exercise of writ jurisdiction under Article 226, to sit in judgment over the Government’s policy decision to upgrade or constitute a larger municipal area, unless there is a clear violation of mandatory statutory provisions.
Finding no such violation, the Court concluded that the petitioner had failed to make out any case against the upgradation of Nagar Panchayat Simri Bakhtiyarpur to Nagar Parishad. Consequently, it refused to interfere with the notification dated 03.03.2021.
The writ application was held to be without merit and was dismissed. No order as to costs was passed.
Why This Judgment Matters
This judgment is important for residents of areas that are being converted from rural Gram Panchayats into larger municipal bodies like Nagar Parishads.
First, it clarifies that when the Government checks whether agricultural workers are less than 50%, it looks at the whole proposed municipal area, not each individual village. So, even if one village has a higher percentage of cultivators, that alone may not stop its inclusion.
Second, the Patna High Court has reaffirmed that the process of creating or upgrading municipal areas is a policy decision with a legislative character. People can send objections, and the Government must consider them, but citizens do not have a right to demand a personal hearing or a detailed written order addressing each objection.
For people affected by such changes, this means that challenging these notifications in court will be difficult unless there is a clear breach of the conditions laid down in the Bihar Municipal Act, 2006.
Legal Issues and Answers
-
Issue: Did the inclusion of Simri and Ashrafchak villages in the upgraded Nagar Parishad violate the requirement that main and marginal cultivator workers be less than 50% of workers under the Bihar Municipal Act, 2006?
Answer: No. The Court held that the 50% test applies to the entire upgraded municipal area, not to each village. The State’s data showed only 24.36% cultivator workers in the whole Nagar Parishad, so there was no violation. -
Issue: Was the State Government legally bound to pass a separate, reasoned order on the petitioner’s objection under Section 5 before issuing the final notification?
Answer: No. The Court held that declaration and constitution of municipal areas under Chapter II of the Act is a legislative function. The law only requires that objections be invited and considered, not that detailed orders be passed on them. -
Issue: Could the High Court under Article 226 interfere with the Government’s decision to upgrade the Nagar Panchayat in the absence of violation of mandatory provisions?
Answer: No. Once statutory procedures are followed and objections are considered, the Court will not sit in judgment over such policy decisions relating to municipal boundaries and upgradation.
Cases Cited by the Court
- Usha Devi vs. The State of Bihar & Ors., CWJC No. 7446 of 2021 (Patna High Court, order dated 17.01.2022).
- Sundarjas Kanyalal Bhatija & Others vs. Collector, Thane, Maharashtra & Others, (1989) 3 Supreme Court Cases 396.
Case Details
Case Number: Civil Writ Jurisdiction Case No. 9421 of 2021
Case Title: Kari Choudhary vs. The State of Bihar & Ors.
Court: High Court of Judicature at Patna
Coram: Hon’ble Mr. Justice Chakradhari Sharan Singh and Hon’ble Mr. Justice Madhuresh Prasad
Date of Judgment: 22.03.2022
Citation: 2022(2) PLJR 201
Advocates:
For the petitioner: Mr. Siya Ram Shahi, Advocate; Mr. Syed Masleh Uddin Ashraf, Advocate
For the respondents (State of Bihar and others): Mr. Kinker Kumar (SC-9); Mr. Zaki Haider, AC to SC-9; Ms. Deepika Sharma, AC to SC-9
Nature of the case: Writ petition under Article 226 of the Constitution of India challenging a State Government notification under Sections 4, 5 and 6 of the Bihar Municipal Act, 2006, relating to upgradation of a Nagar Panchayat to a Nagar Parishad and inclusion of additional Gram Panchayats.
Link to the judgment: Click here to read the full judgment of the Patna High Court
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