Case Background
This case arose from the State Government’s decision to create Udakishunganj Nagar Parishad in Madhepura district.
By Memo No. 949 dated 03.02.2021, issued by the Urban Development and Housing Department, Government of Bihar, the State constituted Udakishunganj Nagar Parishad. Four Nagar Panchayats were included: Lakshmipur, Kishunganj, Rampur Kheda and Rahta Fanhan (East part). The notification listed fourteen villages in these Gram Panchayats which would fall within the new municipal area.
The petitioners are husband and wife. Petitioner No.1 describes himself as an ex-Mukhiya, and Petitioner No.2 as Mukhiya of Rahta Fanhan Gram Panchayat. They were aggrieved by the inclusion of their area into the new urban local body.
Before the final notification, on 26.12.2020 the State Government issued a notification under Section 3 of the Bihar Municipal Act, 2007, declaring its intention to constitute Udakishunganj Nagar Parishad. This intention was published in the official gazette and in newspapers as required by Section 4 of the Act.
Section 5 of the Act allows any inhabitant of the concerned area to file objections. Petitioner No.1 and others filed such an objection, which was annexed to the writ petition. They claimed the area still functioned as a rural region with limited infrastructure and predominantly agricultural and migrant labour population. They also alleged that no proper enquiry had been done before issuing the intention notification.
Despite these objections, the State went ahead and issued the final notification on 03.02.2021 constituting Udakishunganj Nagar Parishad.
Aggrieved, the petitioners approached the Patna High Court under Article 226 of the Constitution in Civil Writ Jurisdiction Case No.13427 of 2021. They sought quashing of the notification on various constitutional and statutory grounds.
What the Court Examined and Decided
The Division Bench of Hon’ble Mr. Justice Chakradhari Sharan Singh and Hon’ble Mr. Justice Madhuresh Prasad heard the matter. Counter affidavits were filed on behalf of respondents 2 to 4 and 6 to 9, and the petitioners filed a rejoinder to the counter affidavit of respondents 6 to 9.
At the outset, the Court clarified two factual misstatements in the writ petition. First, the petitioners had claimed that Udakishunganj Nagar Parishad was created by merging 14 Gram Panchayats. The Court pointed out that the notification mentioned fourteen villages, not fourteen Gram Panchayats. Secondly, in paragraph 5 of the writ petition, the petitioners treated the names given in the notification as names of Gram Panchayats, whereas they were actually names of villages listed in column 3 of the notification.
The State, in its counter affidavit, described the background of Udakishunganj. The Sub-Division was established in the early 1980s. The notified area already housed a Sub-Divisional Office, Civil Court, Sub-Jail, Telephone Office, Electric Sub Station, a full-fledged Sub-Divisional Hospital, National Highway 106 connecting to National Highway 31, a Milk Chilling Plant, Cold Storage, Gas Agency and other establishments. According to the 2011 Census, the total population of the notified area was 46,861.
The State further stated that a committee headed by the District Magistrate, Madhepura, examined the objections filed by Petitioner No.1 and others under Section 5 of the Act. After consideration and discussion, the committee rejected the objections and recommended constitution of the Nagar Parishad. On the basis of population figures and details of administrative and commercial installations, the State decided to proceed with the final notification.
In the counter affidavit on behalf of respondents 2 to 4, the State also placed specific population data for the notified area. The total working population was said to be 17,330. Out of this, the population of main and marginal cultivator workers was 2,386, i.e. 13.76% of the working population, much below 50%.
The petitioners’ counsel, Mr. Rajeev Kumar Singh, advanced four main arguments:
First, he argued that no public notification had been issued by the Governor as required under Article 243-Q(2) of the Constitution to specify parameters for classifying areas as Nagar Panchayat, Municipal Council or Municipal Corporation. According to him, such a notification was a condition precedent for creation of any municipality, and in its absence the impugned notification was unconstitutional.
Secondly, he submitted that the petitioners were not given a personal opportunity of hearing on their objections filed under Section 5 of the Bihar Municipal Act, 2007.
Thirdly, he argued that the break-up of the population in the newly constituted Udakishunganj Municipal Council did not satisfy the second proviso to Section 3(1) of the Act regarding non-agricultural population.
Fourthly, he contended that no enquiry, as contemplated under Section 3 of the Act, had been conducted with respect to population, density, revenue for local administration and other factors before issuing the intention notification. Therefore, according to him, the entire process was vitiated.
On the first point regarding Article 243-Q(2), the Bench relied on its own decision delivered the same day in C.W.J.C. No. 6193 of 2021, Birendra Prasad Yadav vs. The State of Bihar and Others. That case dealt with an identical issue. The relevant paragraphs (18 to 25) of that judgment were reproduced.
From those paragraphs, the Court highlighted that Article 243-Q(2) requires the Governor to specify, by public notification, parameters for classifying “transitional area”, “smaller urban area” and “larger urban area”, having regard to factors such as population, density, revenue for local administration, percentage of employment in non-agricultural activities, economic importance and other relevant factors.
The Court noted that, in Bihar, these parameters have already been laid down by the State Legislature in Sections 3, 7 and 13 of the Bihar Municipal Act, 2007, as amended. These statutory provisions specify the necessary population thresholds, non-agricultural population requirement and other factors for declaring an area as a municipal area.
Relying on the Supreme Court’s judgment in Champa Lal, the Bench held that such statutory prescription of uniform parameters constituted substantial compliance with Article 243-Q(2). The Court therefore rejected the argument that, in the absence of a separate Governor’s notification, all municipal creations in Bihar were unconstitutional.
On the second issue of denial of hearing on objections under Section 5, the Court referred to its Division Bench judgment in Usha Devi and Others vs. The State of Bihar and Others, reported in 2022(1) PLJR 833. It reproduced paragraphs 21 to 23, 47 to 49 and 51 to 52 of that decision.
In Usha Devi, the Court had held that the requirements of Sections 3 and 7 of the Act relate to the proposed municipal area as a whole, not to each individual Gram Panchayat being included. It also held that notifications under Sections 4 and 6 of the Act, issued in the context of Article 243-Q, are legislative in nature rather than administrative or adjudicatory.
The Act requires only that written objections be invited and considered. It does not prescribe personal hearing or passing of detailed speaking orders on each objection. Once objections are considered and a notification is issued, constitutional courts should not sit in judgment over the policy decision to constitute or upgrade a municipal area, by applying rules of natural justice meant for adjudicatory functions.
Applying Usha Devi, the Bench in the present case held that the petitioners could not assail the notification on the ground that they were not granted an oral hearing or that no detailed reasoned order dealing with their objections was passed.
On the third argument about the percentage of cultivator workers, the Court found two clear answers.
First, the petitioners had not specifically pleaded in their writ petition, nor had they asserted in their Section 5 objection, that the total population of main and marginal cultivator workers in the area exceeded 50% of the total working population. Therefore, the issue was not properly raised in their pleadings.
Secondly, the State’s counter affidavit gave specific figures showing that cultivator workers were only 2,386 out of a total working population of 17,330, i.e. 13.76%. These figures were not disputed by the petitioners in any further affidavit. Since these averments remained uncontroverted, the Court accepted them. On this basis, it held that the statutory requirement relating to composition of population was not violated, and this ground of challenge was untenable.
On the fourth contention, regarding alleged absence of enquiry under Section 3(1), the Court looked at the wording of Section 3(1) itself. The section authorises the State Government to declare its intention to specify an area as a larger, medium or transitional urban area, “after making such inquiry as it may deem fit” and having regard to the listed factors.
The Court emphasised that the Act does not prescribe any particular manner of enquiry, such as physical visits by officers or a specific form of survey. Instead, it grants wide discretion to the State Government to make such enquiry as it finds appropriate.
The Bench then referred to its earlier Division Bench judgment dated 21.03.2022 in C.W.J.C. No. 6251 of 2021, Navin Kumar vs. The State of Bihar and Others, and an analogous matter. Paragraphs 16 to 18 of that judgment were reproduced. That decision had held that the expressions “may” and “may deem fit” in Section 3(1) show legislative intent to confer discretion on the State, and that the provisos relating to population thresholds and non-agricultural population are directory but bind the State only in a broad way.
Applying this reasoning, the Court in the present case observed that unless a final notification under Section 6 of the Act is shown to be contrary to the requirements under the provisos to Section 3(1) and Section 7, it cannot be successfully challenged merely on the allegation that no proper enquiry was made. In this case, the petitioners had not demonstrated such violation, while the State had put on record material about the population and facilities in the area.
After considering all four submissions, the Bench concluded that the writ application lacked merit. The challenge to Memo No.949 dated 03.02.2021 failed, and the writ petition was rejected. No order was made as to costs.
Why This Judgment Matters
This judgment is important for residents and representatives of rural and semi-urban areas in Bihar who may oppose inclusion of their village into a Nagar Panchayat or Nagar Parishad.
The Patna High Court has made it clear that the State Government has wide discretion to declare an area as a municipal area under the Bihar Municipal Act, 2007, as long as the broad statutory parameters about population and urban characteristics are respected.
For objectors, simply stating that many people are agricultural labourers, or that infrastructure is lacking, will generally not be enough. It is necessary to bring clear data and specific pleadings to show that the statutory thresholds are not met.
The Court has also clarified that, in this process, the State’s notifications are legislative in nature. The Act requires the Government only to invite and consider written objections. It does not grant a right to personal hearing or a detailed speaking order on each objection.
As a result, future challenges to constitution or upgradation of municipal areas in Bihar on similar grounds are unlikely to succeed unless there is a clear and specific breach of the population and other criteria laid down in Sections 3 and 7 of the Act.
Legal Issues and Answers
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Issue: Was the creation of Udakishunganj Nagar Parishad unconstitutional because there was no separate public notification by the Governor under Article 243-Q(2) of the Constitution?
Answer: No. The Court held that the statutory parameters in the Bihar Municipal Act, 2007 sufficiently satisfy Article 243-Q(2), following its earlier judgment in Birendra Prasad Yadav and the Supreme Court’s decision in Champa Lal. -
Issue: Were the petitioners entitled to a personal hearing and a reasoned order on their objections filed under Section 5 of the Bihar Municipal Act, 2007?
Answer: No. Relying on Usha Devi, the Court held that the process of constituting a municipal area is legislative in nature. The State is only required to invite and consider written objections, not to provide personal hearings or detailed orders. -
Issue: Did the notified area fail to meet the statutory population composition requirements, or suffer from lack of enquiry under Section 3 of the Act?
Answer: No. The petitioners had not specifically pleaded that cultivator workers exceeded 50% of workers, and the State’s unrebutted data showed cultivator workers at only 13.76%. Section 3 gives the State wide discretion on the nature of enquiry, and no violation of the provisos to Section 3 or Section 7 was demonstrated.
Cases Cited by the Court
- Birendra Prasad Yadav vs. The State of Bihar and Others, C.W.J.C. No. 6193 of 2021 (Patna High Court, judgment dated 12.05.2022) – relied upon for interpretation of Article 243-Q(2) and the Bihar Municipal Act, 2007.
- Champa Lal (Supreme Court of India) – cited within the extracted portion of Birendra Prasad Yadav regarding the meaning of Article 243-Q(2) and requirement of uniform parameters.
- Usha Devi and Others vs. The State of Bihar and Others, 2022(1) PLJR 833 – relied upon for the nature of notifications under Chapter II of the Bihar Municipal Act, 2007 and the limited role of objections under Section 5.
- Navin Kumar vs. The State of Bihar and Others, C.W.J.C. No. 6251 of 2021 and analogous matter (Patna High Court, judgment dated 21.03.2022) – relied upon for interpretation of Section 3 of the Bihar Municipal Act, 2007 and the discretionary nature of the State’s enquiry.
Case Details
Case Number: Civil Writ Jurisdiction Case No.13427 of 2021
Case Title: Md. Mukhtar Alam and another vs. The State of Bihar and others
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: 12-05-2022
Citation: 2022(3) PLJR 95
Advocates:
- For the Petitioners: Mr. Rajeev Kumar Singh, Advocate; Mr. Alok Kumar Singh, Advocate
- For the Respondents: Mr. Shankar Kumar, AC to AAG-7
Nature of the Case: Writ petition under Article 226 of the Constitution of India challenging State notification constituting Udakishunganj Nagar Parishad under the Bihar Municipal Act, 2007.
Impugned Notification: Memo No.949 dated 03.02.2021 issued by the Urban Development and Housing Department, Government of Bihar.
Link to Judgment: Click here to access the full judgment of the Patna High Court
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