- The Hon’ble SC has observed, in the case of State of Rajasthan vs. Ashok Khatoliya that the Constitution (Seventy-Fourth Amendment) Act, 1992 does not take away the State’s power to legislate in matters pertaining to local government.
- In the instant case, the Rajasthan HC set aside a notification issued by the State declaring Gram Panchayat Roopbhas, Bharatpur as a Municipal Board on the ground that no public notification has been produced specifying the Gram Panchayat Roopbhas as a transitional area, thereby violating the provisions of Article 243Q(2) of the Constitution and thus, the same cannot be declared as a Municipal Board.
- The Counsel for the State relied upon the likes of Tulsipur Sugar Co. Ltd vs The Notified Area Committee, Tulsipur (1980) SCC, and Sundarjas Kanyalal Bhatija and ors vs Collector, Thane, Maharashtra (1989)3 SCC to contend that the power to declare a Municipal Board or a Municipality is a legislative function and the notification issued by the Governor is actually a notification issued by the State Government. The Counsel also contended that the provisions of Section 5 of the Municipalities Act is not inconsistent with the provisions of Article 243Q of the Constitution. Thus, the HC has gravely erred in quashing the said notification.
- The Counsel for the respondents vehemently argued that they did not dispute that the notification issued under section 5 of the Municipalities Act is a State function but argued that at first there has to be a notice under Article 243Q of the Constitution and only then can the State Government issue the notification constituting a Municipal Board.
- The Hon’ble Apex Court observed that the scheme of the 74th Constitutional Amendment is not to take away the competence of the State legislature but is to ensure that the three tiers of the Government are strengthened as a part of the democratic set-up. The same is also evident in the statement of objects and reasons appended to the 74th Amendment.
- The Court relied upon the judgement of Parmar Samantsinh vs State of Gujarat (2021)SCC wherein it was held that the power of the State to legislate in its legislative competence cannot be curtailed in the absence of an express restriction placed upon that power by the constitution itself.
- The Court also observed that local Government falls under entry 5 of list II of the Seventh Schedule, thus the State government has the complete authority to legislate in that matter, with the only limitation that the provisions of the State Act cannot violate the provisions of Part IX B of the Constitution.
- The Apex Court also observed that the provisions of Section 5 of the Municipalities Act are in no way violative of Article 243Q of the Constitution and the State Government is competent to divide the municipalities according to their income and other factors like population.
- Thus, the appeal was allowed and the order of the HC was set aside .
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