Date of Judgement:
10thMarch 2022
Coram/judges:
The Hon’ble Mr. Justice Hemant Gupta
The Hon’ble Mr. Justice V. Ramasubramanian
Parties to the Case:
Appellant - State of Rajasthan
Respondent - Ashok Khetoliya&Anr
Subject
The present appeal was filed against an order passed by the High Court of Rajasthan dated 28.4.2015 whereby a notification dated 12.8.2014 declaring Gram Panchayat Roopbas, District Bharatpur as Municipal Board was set aside.
Legal Provisions
- The Constitution (Seventy-Fourth Amendment) Act, 1992 - It introduced Part IX-A (articles 243P to 243ZG) in the Constitution of India, which deals with Municipalities.The amendment came into force on 1st June 1993. This Constitutional amendment provided a mandate for democratic decentralisation, which sought to create an institutional framework for democracy at the grass root level through self-governing local bodies in urban areas of India.
- Article 243Q of the Constitution of India – deals with constitution of municipalities and lays down definition of transitional area. A transitional area means an area as the Governor may specify,on the basis of various factors, by public notification for the purposes of Part IX-A.
- Article 243ZF of the Constitution of India- talks about validity of municipalities’ laws in force, which existed before the commencement of the 74th constitutional amendment. In case they were inconsistent with part IX-A, they shall remain in force until repealed by legislative body or until expiry of one year from the said amendment.
- Entry 5 of the Seventh Schedule list II – which gives the power to State legislatures to frame laws in order to constitute local governments for self-government or village administration.
- Section 5 of Rajasthan Municipalities Act,2009- which deals with Establishment and incorporation of Municipalities in state of Rajasthan.
Overview
- Exercising its powers under list-II ofseventh schedule, Rajasthan had enacted the Rajasthan Municipalities Act, 2009. Under this act, the notifications were released which were later set aside by High Court’s order.
- The learned counsel for the state contented that power to declare a Municipality was a legislative function.Which was discharged by the State legislature by issuing a notification on behalf of the Hon’ble Governor. The provisions of Section 5 of the Rajasthan Municipalities Act are not inconsistent in any way with Article 243Q of the Constitution and thus, Section 5 is a legal and valid provision and so are the notifications that had been issued in exercise of the powers conferred by the statute.
- The learned council appearing for the respondent contended that before such a notification could be issued by state legislative under section 5, there had to be a notification under Article 243Q of the Constitution of India. Along with other leading case laws,reliance was placed upon judgment of supreme Court in the case Champa Lal v. State of Rajasthan & Ors.
- In Champa Lal, this Court had struck down a notification issued by the Governor of the State of Rajasthan holding that in the absence of notification under Article 243Q (2), the entire exercise undertaken by the State of Rajasthan in upgrading the Napasar Village Gram Panchayat to be a Nagarpalika (municipality) is unconstitutional.
Issues
Can setting aside the notifications issued by the state government of Rajasthan u/s 5 of Rajasthan Municipalities Act, 2009 on want of consistency with the provisions of Article 243Q Constitution of India, by the High Court, be held valid?
Judgement Analysis
- The Apex court held that the High Court had misread the scope of Part IX-A and Article 243Q of the Constitution forming an opinion that the transitional area has to be notified under such provision. The scheme of the 74th Amendment was not to take away competence of the State Legislatures to legislate on the subject of local Government but to ensure that the three tiers of governance are strengthened.
- The Supreme Court held that the Champa Lal Judgement was not in tune with the scheme of the Constitution. It was contrary to a three-Judge Bench judgment of Supreme Court in case of Parmar Samantsinh Umedsinh v. State of Gujarat &Ors. wherein the vires of the Gujarat Provincial Municipal Corporation Act, 1949 were subject to challenge on the ground that the State law has provided more than one representative from a single Ward and, thus, this provision is inconsistent with the provisions of Part IX-A of the Constitution. This contention was rejected and the provision was held valid.
- In light of seventh schedule of the Constitution, State Legislature is competent to legislate in respect of the municipalities. One limitation being that the provisions of the State Act cannot be inconsistent with Part IX-A. The scheme of Part IX-A does not envisage a separate notification under Article 243Q of the Constitution and thereafter under Section 5 of the Municipalities Act.
- To issue the notifications in question, the State Government had exercised powers to establish Municipality in terms of Section 5, which is not inconsistent with any provisions of Article 243Q. Such notifications cannot be said to be arbitrary in any manner and were rightly issued in exercise of the statutory powers of State Legislature.
- The leading case laws put forward by the learned council for the respondent, in support of the contention that the notification was arbitrary and unreasonable were held to be not helpful for supporting the arguments put forward.
- The High Court’s reasoning to struck down the notifications, only for the reason that the notification under Article 243Q (2) was not published, was held to be erroneous and unsustainable in law. Hence the appeal was allowed.
Conclusion
The Honourable Supreme Court in the given appeal examined the vision of 74th constitutional amendment. Its scope was evaluated in relation to laws passed by State legislatures governing municipalities and other local bodies in lieu of powers conferred by list II of the seventh schedule. The provisions under section 243Q for declaring a territory as ‘transitional area’ were held as complementary and not restrictive for provisions of State Acts in this regard.
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