IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.10923 of 2023

======================================================

Shailendra Kumar Son of Sri Umakant Jha, Resident of Village- Mahathwar,

P.O. Pali, P.S. Ghanshyampur, District- Darbhanga, presently Mukhiya of

Gram Panchayat Raj, Ghanshyampur, Block- Ghanshyampur, District-

Darbhanga.

... ... Petitioner/s

Versus

1.The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2.The Additional Chief Secretary, Panchayati Raj Department, Government of

Bihar, Patna.

3.The Director, Panchayati Raj Department, Government of Bihar, Patna.

4.The District Magistrate, Darbhanga, District- Darbhanga.

5.The District Panchayat Raj Officer, Darbhanga, District- Darbhanga.

6.The Deputy Development Commissioner, Darbhanga, District- Darbhanga.

7.The Block Development Officer, Ghanshyampur, District- Darbhanga.

8.The Block Panchayat Raj Officer, Ghanshyampur, District- Darbhanga.

... ... Respondent/s

======================================================

Appearance :

For the Petitioner/s: Mr. SBK Mangalam, Advocate

For the Respondent/s: Mr. Satya Vrat, AC to GA-10

======================================================

CORAM: HONOURABLE MR. JUSTICE RAJIV ROY

CAV JUDGMENT

Date : 24.07.2024

Heard the parties.

(A) PRAYER:

2. The present writ petition has been preferred for the

grant of the following relief/s:-

“(i) for issuance of an appropriate writ in

the nature of CERTIORARI for quashing of a

part of the Government Resolution dated

03.02.2021 issued under the signature of the

Respondent no.2 and contained in his memo

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

2/18

no.758 dated 03.02.2021 whereby and where

under an instruction has been issued by the

State Government for retaining the existence of

the Gram Panchayat, whose certain area has

been included in the Urban Local Bodies

provided the population of the remaining area of

Gram Panchayat is 3,000 or more based upon

1991 census;

(ii) for a declaration that since according

to Section -2 (ac) of the Bihar Panchayat Raj

Act, 2006 (hereinafter referred to as the Gram

Panchayat Act) the population has been defined

to mean and include the population as

ascertained at the last preceding census of

which the relevant figures have been published

and the last census of which the relevant figures

have been published is 2011 census, the State

Government cannot rely upon the figures of

1991 census for the purposes of direction

contained in paragraph no.3 (1) of the

impugned notification;

(iii) for issuance of an appropriate writ in

the nature of CERTIORARI for quashing the

order dated 15.07.2023 passed by the

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

3/18

Respondent no.4 and contained in his memo

no.2634 dated 15.07.2023 ,whereby and where

under the Respondent no.4 has been pleased to

reject the objection dated 13.07.2023 filed by

the petitioner against the draft publication of

Respondent no.4 under Section 11 (1) of the

Gram Panchayat Act vide his memo no.2392

dated 30.06.2023 whereby and where under he

had proposed for merger of Mahathwar village

in Gram Panchayat Raj, Lagma which was

earlier a part of Gram Panchayat Raj,

Ghanshyampur on the ground that if according

to 2011 census, the total population of village-

Mahathwar is 4523, in view of the resolution of

the State Government dated 03.02.2021 read

with provisions contained under Section 2 (ac)

of the Gram Panchayat Act since the population

of village Mahathwar as per published figures

of 2011 census is much more than 3,000, the

Respondent no.4 is obliged to allow the village-

Mahathwar to remain as a Gram Panchayat by

its new name i.e. Gram Panchayat Raj,

Mahathwar and, therefore, this village cannot

be included in Gram Panchayat Raj, Lagma as

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

4/18

proposed by him;

(iv) for issuance of an appropriate writ in

the nature of MANDAMUS, commanding and

directing the Respondent no.4 to constitute a

Gram Panchayat in the name of Gram

Panchayat Raj, Mahathwar under

Ghanshyampur Block of Darbhanga District in

exercise of his power under Section 11 (i) of the

Gram Panchayat Act and allow the petitioner to

function as the Mukhiya of the said Gram

Panchayat,who was elected as such in General

Panchayat Election, 2021;

(v) for issuance of any other appropriate

writ/writs order/ orders, direction/directions for

which the writ petitioner would be found entitled

under the facts and circumstances of the case.”

(B) CASE OF THE PETITIONER :

3. Prior to 17.06.2022, the Gram Panchayat Raj,

Ghanshyampur was in existence and village- Mahathwar with

the total population of 4,523 was its part.

4. The State Government in the year 2022 issued a

draft notification on 05.01.2022 for inclusion of three revenue

villages of Ghanshyampur Gram Panchayat in Nagar Panchayat,

Ghanshyampur namely Ghanshyampur Thana No.395, Chhit

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

5/18

Budhev Thana No.394 and Fakirna Thana No.396.

5. In view of the provisions contained in Bihar

Municipal Act, 2007 (henceforth for short ‘the Act’), pursuant to

the draft notification dated 05.01.2022 issued by the State

Government, objections were filed.

6. However, the contention is that the objections were

arbitrarily rejected by the State Government which followed the

final notification vide memo no. 1635 dated 17.06.2022 for

including the aforesaid three revenue villages of Gram

Panchayat Raj, Ghanshyampur in Nagar Panchayat,

Ghanshyampur.

7. The petitioner earlier challenged the same by filing

a writ application (CWJC No. 9452 of 2022). It was admitted on

07.08.2022 and is presently pending.

8. Earlier, the issue of existence of certain Gram

Panchayats whose parts have been merged with the Urban Local

Bodies was under consideration of the State Government and

after due consideration, it came out with a notification contained

in memo no. 758 dated 03.02.2021 issued under the signature of

Respondent no.2 whereby and where under it allowed those

villages of a Gram Panchayat area to be retained as a Gram

Panchayat where the population of remaining villages of a Gram

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

6/18

Panchayat is more than 3,000. However, in the said resolution, it

was also mentioned that the total population of remaining

villages of the Gram Panchayat shall not be less than 3,000

according to the published figures of 1991 census.

9. The case of the petitioner further is that after the

inclusion of three revenue villages of the petitioner's Gram

Panchayat, as the total population of village – Mahathwar

became less than 3,000 as per the 1991 census, the Respondent

no.4 had published a draft proposal for the merger of the

village- Mahathwar in Gram Panchayat Raj, Lagama and as

such vide memo no.2392 dated 30.06.2023, objections were

invited against the said proposal from the public residing in the

village.

10. Since the reliance was placed by the Respondents

on 1991 census in the government resolution dated 03.12.2021

as also the draft notification of Respondent no.4 contained in his

memo no.2392 dated 30.06.2023, according to the petitioner, it

is contrary to the provisions contained under Section 2(ac) of

the Gram Panchayat Act (henceforth for short ‘the Act’). The

petitioner as such filed exhaustive application before the

Respondent no.4, the District Magistrate, Darbhanga objecting

to the said proposal. It came to be rejected by the concerned

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

7/18

respondent no. 4 which was communicated vide memo no. 2634

dated 15.07.2023.

11. Learned counsel took this Court to Section 2 (ac)

of ‘the Act’ which defines the word "Population" to mean and

include the population as ascertained as the last preceding

census of which the relevant figures have been published.

12. Learned counsel for the petitioner submits that the

figures of the last census held in the year 2011 is/are in the

public domain. Despite that, the 1991 census figures has/have

been used for the purposes of allowing a village to remain in the

Gram Panchayat. This is in contravention of Section 2 (ac) of

‘the Act’.

13. Learned counsel further submits that all these

issues were raised before the Respondent no. 4 in the

representation. However, the same was rejected taking note of

the Government resolution dated 02.03.2021 particularly

paragraph 3(1) forcing him to file the writ petition. His

submission is that if the 2011 Census population were taken into

account, there was no need to include the village Mahatwar in

the gram panchayat raj, Lagma. He as such submits that the

same be quashed.

(C) CASE OF THE RESPONDENT NOS. 4 TO 7

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

8/18

14. The case of the State respondents is/are that:

a) for constituting Nagar Panchayat,

Ghanshayampur:

(i) a draft notification vide memo no. 4262 dated

26.12.2020 was earlier notified and after following the due

process of law, the same was constituted vide memo no. 101

dated 03.03.2021;

(ii) further, for the inclusion of other three villages in

the said Nagar Panchayat, a notification vide memo no. 67 dated

05.01.2022 came to be notified;

(iii) accordingly, after following the due process, the

Nagar Panchayat, Ghanshayampur has been finally constituted

vide notification no. 1635 dated 17.06.2022.

15. Aggrieved, the petitioner preferred CWJC No.

9452 of 2022 which was heard and admitted for hearing and is

presently pending.

16. The further contention is that the Panchayati Raj

Department, Government of Bihar vide letter no.3025 dated

15.03.2023 has issued direction to submit status report of

existing Gram Panchayat whose part has been merged in the

Nagar Panchayat so that the remaining villages can be merged

with the other Villages Panchayat. Accordingly, the respondent

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

9/18

no. 4, the District Magistrate, Darbhanga vide office letter no.

1525 dated 17.04.2023 sought direction from the State

Government.

17. Pursuant thereto, the Director, Panchayati Raj

Department, Government of Bihar vide letter no.5674 dated

19.05.2023 has issued direction to act in accordance with the

resolution no. 758 dated 03.02.2021.

18. Thus taking into account the Notification no. 758

dated 03.02.2021 (Annexure-P/3 to the writ petition) and having

found that the population of village Mahathwar is less than

3000 as per the census 1991, the respondent no. 4, the District

Magistrate, Darbhanga has published a draft proposal for merger

of area and population of village Mahathawar in Gram

Panchayat Raj Lagma vide memo no. 2392 dated 30.06.2023

(Annexure-P/4 to the writ petition).

19. Further, the objection/representation filed by the

petitioner was considered and the respondent no. 4, the District

Magistrate, Darbhanga after providing reasonable opportunity,

passed a reasoned order as contained in memo no. 2634 dated

15.07.2023(Annexure- P/6 to the writ petition). It took note of

the fact that after the inclusion of three villages with the Nagar

Panchayat, Ghanshyampur, the population of Mahathwar village

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

10/18

became less than 3000 as per the 1991 census and thus

following the Government resolution/notification no. 758 dated

03.02.2021, it was included with Gram Panchayat, Lagma.

20. A supplementary counter-affidavit has also been

filed by the aforesaid respondents.

21. Learned State Counsel has drawn the attention of

this Court to the provisions of Section 127 of ‘the Act’ which

read as follows:

“Section 127: Determination of

Elected Members after Census – Upon the

publication of figures of each Census, the

number of elected members of Panchayat

shall be determined by the State Government

on the basis of the population of the

Panchayat area as ascertained at that

Census:

Provided that the determination of the

number as aforesaid shall not affect the then

composition of the Panchayat unit until the

expiry of the term of office of the elected

members then in office;

Provided further that notwithstanding

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

11/18

any other provision contained in this Act,

until the relevant figures for the census

taken in the year 2021 are published, it

shall not be necessary for the Government

to redetermine the number of elected

members on the basis of population of the

Panchayat area ascertained at the 2011

census."

22. Learned State Counsel submits that in the light of

the second proviso, the Government has taken a conscious

decision not to effect general delimitation of present Gram

Panchayats and Wards therein till the figures of 2021 census are

published. In other words, the State Government is not keen at

the moment to create new Gram Panchayats in the State.

23. The further submission is that the Gram

Panchayats and Wards thereof were created way back in the year

1993-94 on the basis of population figures of 1991 census. As a

typical situation arose because of merger of some part of a Gram

Panchayat constituted in the year 1993-94 with newly created

Urban Local Bodies and the standard population for creation of

a Gram Panchayat (7000) was considerably reduced because of

exclusion of some area from the Gram Panchayat, the issue had

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

12/18

to be addressed by a special order of the government regarding

the existence of the affected Panchayat.

24. It was in the aforesaid background that the

Government in its wisdom took the decision that affected Gram

Panchayats with less than 3000 population ascertained on the

basis of 1991 census shall be merged with a Gram Panchayat

adjacent to it while those having 3000 or more population will

be retained as a Gram Panchayat entity.

25. The further stand of the respondents is that to keep

rationality throughout the State, the population figures of 1991

census were taken into consideration and not the population

figures of 2001 Census and/or 2011 census. The contention is

that if the population figures of 2001 or 2011 census would have

been taken into consideration for reconstitution of the Gram

Panchayats, almost all the Gram Panchayats in the State will be

required to be reconstituted afresh thus resulting in a chaotic

situation which will defeat the very spirit of the section 127 of

‘the Act’.

26. The contention of the State-respondent is that in

the aforesaid background, the writ petition is fit to be dismissed.

(D) FINDINGS:

27. Having heard the learned Counsel for the

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

13/18

petitioner as also the State and perusing the records, this Court

first takes note of the notification no. 758 dated 03.02.2021

which read as follows:-

fcgkj ljdkj

iapk;rh jkt foHkkx

LkadYi

lafpdk la0 &8i@fo&5&19@2020@ia0jk0@758@iVuk] fnukad 03@2@2021

fo"k; %& xzke iapk;rksa ds dqN {ks=ksa dks uxj fudk;ksa esa lfEefyr dj

fy, tkus ds QyLo:i vof’k"V xzke iapk;rksa dh tula[;k

1991 dh tux.kuk ds vk/kkj ij 3000 ;k mlls vf/kd jgus

ij mUgsa ;Fkkor j[kus ,oa 3000 ls de jgus ij lehiorhZ

xzke iapk;r@xzke iapk;rksa esa lfEefyr dj muds iquxZBu

rFkk ukedj.k ds laca/k esa

jkT; dh dbZ xzke iapk;rksa ds dqN va”k dks uxj fudk; esa lfEefyr

dj fy, tkus ds QyLo:i mDr xzke iapk;rksa ds iquxZBu dh vko”;drk gks

x;h gSA

2- xzke iapk;rksa ds xBu@ iquxZBu ,oa mldh oSf/kdrk@vkSfpR; ds

fcUnq ij fcgkj iapk;r jkt vf/kfu;e] 2006 dh /kkjk 11 ds mi fu;e ¼1½ ,oa

¼2½ esa izko/kku fd, x, gSaA iapk;rh jkt foHkkx ds oS/kkfud vkns”k la[;k&

5608 fnukad 15-10-1993 esa xzke iapk;rksa ds xBu@iquxZBu ,oa ukedj.k ds

laca/k esa foLr`r izko/kkuksa dk mYys[k fd;k x;k gSA

3- mDr ifjizs{; esa fcgkj iapk;r jkt vf/kfu;e] 2006 dh /kkjk 11 ds

v/khu jkT; ljdkj }kjk ;g fu.kZ; fy;k x;k gS fd xzke iapk;r {ks=ksa dks

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

14/18

vkaf”kd :i ls uxj fudk; {ks= esa lfEefyr fd, tkus ds QyLo:i lacaf/kr

xzke iapk;rksa ds iquxZBu dh dkjZokbZ fuEu:is.k dh tk,xh%&

¼1½ ftu xzke iapk;r {ks=ksa dh vkcknh 1991 dh tux.kuk ds

vk/kkj ij 3000 ;k mlls vf/kd jg tk,xh vkSj mudk eq[;ky; xzke] xzke

iapk;r {ks= esa gh cpk gksxk] rks vof”k’V xzke iapk;r {ks= dks iwoZ uke ds lkFk

xzke iapk;r ds :i esa cus jgus fn;k tk,xkA vxj uxj fudk; {ks= esa mDr

xzke iapk;r dk eq[;ky; xzke Hkh lekfgr gks x;k gS] rks iquxZfBr xzke iapk;r

ds fy, eq[;ky; xzke dk fu/kkZj.k ,oa mDr xzke iapk;r {ks= dk ukedj.k

oS/kkfud vkns”k la[;k&5608 fnukad 15-10-1993 ds izko/kkuksa ds v/khu fd;k

tk,xkA

¼2½ tgkW uxj fudk; esa lfEefyr fd, tkus ds

QyLo:i lacaf/kr xzke iapk;r {ks= dh tula[;k 1991 dh tula[;k ds

vk/kkj ij 3000 ls de jg tk,xh] ogkW ml {ks= dks lehiorhZ xzke

iapk;r@xzke iapk;rksa esa “kkfEky dj iwoZ xzke iapk;r dk vfLrRo

lkeIr dj fn;k tk,xk rFkk vko ;drk gksus ij lehiorhZ xzke iapk;r

”

dk iquxZBu@ukedj.k oS/kkfud vkns k la[;k& 5608 fnukad 15-10-1993

”

ds izko/kkuksa ds v/khu fd;k tk,xkA

4- iquxZBu ds QyLo:i xzke iapk;r ,oa blds izknsf”kd

fuokZpu {ks=ksa ds vkj{k.k esa fdlh laHkkfor ifjorZu ds laca/k esa jkT; fof/k

foHkkx ds ijke”kZ ls vyx ls funsZ”k tkjh dj ldsxhA

vkns k %& vkns’k fn;k tkrk gS fd bl ladYi dks fcgkj jkti= ds

”

vkxkeh vlk/kkj.k vad esa loZlk/kj.k dh tkudkjh gsrq izdkf kr fd;k

”

tk;sA

g0

¼ve`r yky eh.kk½

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

15/18

vij eq[; lfpo

28. Clause 3(2) of the said notification clearly defined

that Gram Panchayat with less than 3000 population ascertained

as per the 1991 census shall be merged with a Gram Panchayat

adjacent to it.

29. This Court would further like to incorporate the

provisions of Section 11 (1) of ‘the Act’ which read as follows:-

"Declaration of Gram Panchayat Area -

(1) Subject to the general or special orders of

the Government, the District magistrate may,

by notification in the District Gazette, declare

any local area comprising a village or a group

of contiguous villages or part thereof to be a

Gram Panchayat area with a population

within its territory as nearly as seven

thousand:

Provided that the District Magistrate

may, after consultation with the Gram

Panchayat concerned, by a

notification, at

any time, include within or exclude from any

Gram Panchayat area any village or part

thereof and alter the name of the Gram

Panchayat.

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

16/18

Provided also that the Government may

issue necessary direction to the District

Magistrate on ground of reasons to be

recorded in writing to constitute/reconstitute a

Gram Panchayat area even with lesser

population of seven thousand."

30. The Government, as stated above, vide memo no.

758 dated 03.02.2021 came out with a notification to merge the

village with less than 3000 population as per the 1991 census

with the adjoining gram panchayat.

31. The aforesaid decision has been taken with respect

to all the Gram Panchayats across the State and is not directed

towards the petitioner’s Gram Panchayat alone. Thus, the intent

of the State Government can not be questioned. In the light of

the said notification dated 03.02.2021 and because the

population of the Mahatwar village had become less than 3000

as per the 1991 Census, it was merged with the Gram

Panchayat, Lagma.

32. The contention of the petitioner that despite the

population of 2011 Census in public domain, the 1991 Census

has been taken for consideration, the same has been ably

answered by the State-respondents that till 2021 Census is

published, they decided to take the population of 1991 Census,

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

17/18

as gram panchayats were constituted in the year 1993-94. Thus

taking up 2011 census will result into reconstitution of almost

all the gram panchayats across the State. As such, they have

rightly contended that if the 2011 Census is taken into

consideration, there would have been reconstitution of all the

Gram Panchayats in the State creating chaotic situation.

33. Further, the proviso to Section 127 of ‘the Act’

clearly allows the State Government to not take into account

the 2011 Census till the 2021 Census is published. It is to be

noted that as per the notification dated 03.02.2021, the figure

is 3000.

34. It was in the aforesaid background that the

respondent no. 4, the District Magistrate, Darbhanga came out

with the decision for the merger of the Mahatwar village in

the Gram Panchayat Raj, Lagma after having found the

population of the village to be less than 3000 as per the 1991

Census.

35. This Court reiterates that the notification no. 758

dated 03.02.2021 has been issued and is/are applicable to

entire State. In line thereof, the village Mahatwar with a

population less than 3000 as per the 1991 Census has been

included in the village Lagma. No malafide on the part of the

Patna High Court CWJC No.10923 of 2023 dt.24-07-2024

18/18

respondents is/are have been alleged by the writ petitioner.

36. In this background, this Court holds that the

relief sought for the writ petitioner deserves outright rejection.

37. Accordingly, ordered.

38. The writ petition is dismissed. No Cost.

Adnan/-

(Rajiv Roy, J)

AFR/NAFR AFR

CAV DATE 15-07-2024

Uploading Date 25-07-2024

Transmission Date