Constitution of India: Arts.243Q(2), 243ZF, Constitution (Seventy Fourth Amendment) Act, 1992 – Part IXA – Legislative Competence with respect to Urban Local Bodies – Appellant-State issued a notification declaring Gram Panchayat Roopbas, District Bharatpur as Municipal Board – The said notification was challenged on the ground that the same was ultra-vires as no notification was made public as contemplated under Art.243Q(2) – High Court accepted the challenge and held that declaration by the State was beyond its legislative competence – Held: Art.243ZF of the Constitution mandates the State legislature to amend the State Laws to make them in conformity with Part IXA – When Part IXA was introduced, the Parliament was aware that the competent legislature to legislate on the subject of the Urban Local Bodies was the State Legislature but Part IXA gave constitutional status to the Municipalities and therefore the State were put under constitutional obligation to adopt Municipalities – Local Government falls in Entry 5 List II of Seventh Schedule therefore state legislature alone is competent to legislate in respect of municipalities provided the same is not inconsistent with Part IXA – The scheme of Part IXA does not contemplate separate notification under Art.243 Q and if the notification is issued as per the Municipality Act enacted by the State which is not inconsistent with Art.243Q, then it fulfills the constitutional requirement and the same cannot be held to be ultravires solely on the basis that the notification was not published under Art.243Q(2) – Rajasthan Municipalities Act, 2009. Constitution (Seventy Fourth Amendment) Act, 1992: Part IXA – Object of introducing Part IXA in the Constitution – Held: Objects and reasons of introducing Part IXA were that local bodies had become weak and ineffective on account of variety of reasons such as failure to hold regular elections, prolonged supersessions and inadequate devolution of powers and functions – The Urban Local Bodies were also not able to perform effectively as vibrant democratic units of self-government – Therefore, when Part IXA was introduced, Parliament was aware that the competent legislature to legislate on the subject of the Urban Local Bodies was the State legislature but Part IXA of the Constitution had given constitutional status to the Municipalities – The States were put under constitutional obligation to adopt Municipalities as per systems enshrined in the Constitution – Constitution of India.
Allowing the appeal, the Court
HELD: 1. Article 243ZF of the Constitution mandated that any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of Part IXA shall continue to be in force until amended or repealed by a competent Legislature or any other competent authority or until the expiration of one year from such commencement whichever is earlier. Therefore, Article 243ZF of the Constitution is in the context of mandating the State Legislature to amend the State laws to be in conformity with Part IXA of the Constitution. The objects and reasons of introducing Part IXA in the Constitution were that local bodies had become weak and ineffective on account of variety of reasons such as failure to hold regular elections, prolonged supersessions and inadequate devolution of powers and functions. The Urban Local Bodies were also not able to perform effectively as vibrant democratic units of self-government. Therefore, when Part IXA was introduced, Parliament was aware that the competent legislature to legislate on the subject of the Urban Local Bodies was the State legislature but Part IXA of the Constitution had given constitutional status to the Municipalities. The States were put under constitutional obligation to adopt Municipalities as per systems enshrined in the Constitution. [Paras 3, 4][783-D-E; 784A-C]
2. The High Court has misread the scope of Part IXA of the Constitution and Article 243Q of the Constitution contemplating that the transitional area has to be notified under such provision. The scheme of the Constitutional Amendment is not to take away legislative competence of the State Legislatures to legislate on the subject of local Government but it is more to ensure that the three tiers of governance are strengthened as part of democratic set up. [Para 8][786-A-B]
Tulsipur Sugar Co. Ltd. v. The Notified Area Committee, Tulsipur (1980) 2 SCC 295 : [1980] 2 SCR 1111; Sundarjas Kanyalal Bhatija & Ors. v. Collector, Thane, Maharashtra & Ors. (1989) 3 SCC 396 : [1989] 3 SCR 405; Parmar Samantsinh Umedsinh v. State of Gujarat & Ors. 2021 SCC OnLine SC 138; State of U.P. & Ors. v. Pradhan Sangh Kshettra Samiti & Ors. 1995 Supp (2) SCC 305 : [1995] 2 SCR 1015 – relied on.
3. Since the local Government falls in entry 5 of List II of the Seventh Schedule, therefore, it is the State Legislature alone which is competent to legislate in respect of the municipalities with only one limitation that the provisions of the State Act cannot be inconsistent with the mandate of the Scheme of Part IXA of the Constitution. The scheme of Part IXA of the Municipalities Act does not contemplate a separate notification under Article 243Q of the Constitution and thereafter under Section 5 of the Municipalities Act. As Section 5 of the Municipalities Act is not inconsistent w ith any provisions of Article 243Q of the Constitution, therefore, two notifications are not contemplated or warranted under the Scheme of Part IXA or the Municipalities Act. The State Government is competent to divide the Municipalities in the State into classes according to their income or other factors like population or importance of the local area and other circumstances as provided under Section 329 of the Municipalities Act. In terms of Section 329, a notification was issued on 30.4.2012 determining the category of the Municipal Corporation/Municipal Council/Municipal Board. Thereafter, the impugned notification dated 12.8.2014 was issued in exercise of the powers conferred on the State Government under Section 3 read with Section 329 of the Municipalities Act. The notifications would show that the State Government had exercised powers to establish Municipality in terms of Section 5 of the Municipalities Act. Such notifications cannot be said to be illegal or arbitrary in any manner and were rightly issued in exercise of the statutory powers conferred on the State by the Legislature. In fact, the High Court has struck down the notification only for the reason that the notification under Article 243Q(2) was not published. Such reasoning is not tenable. Thus, the order of the High Court is clearly erroneous and unsustainable in law. [Paras 16-19, 2223][792-B-E; 793-D; 794-A-B, F-G] Pune Municipal Corporation & Anr. v. Promoters and Builders Association & Anr. (2004) 10 SCC 796 : [2004]
2 Suppl. SCR 207; MGR Industries Association & Anr. v. State of Uttar Pradesh & Ors. (2017) 3 SCC 494 : [2017] 1 SCR 604 – referred to.
Champa Lal v. State of Rajasthan & Ors. (2018) 16 SCC 356 : 2018 (5) SCR 628 – not good law.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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