1. Challenge to High Court order setting aside notification declaring a Gram Panchayat as a Municipal Board for lack of prior notification specifying it as a transitional area. (Para 1 )
Back
Next 
2022 Supreme(SC) 278
SUPREME COURT OF INDIA
(From the High Court of Judicature of Rajasthan)
HEMANT GUPTA, V. RAMASUBRAMANIAN, JJ.
State of Rajasthan – Appellant
Versus
Ashok Khetoliya and Another – Respondents
Civil Appeal No. 1814 of 2022, SLP (Civil) No. 28102 of 2015
Decided On : 10-03-2022
Important Points
The State Legislature alone is competent to legislate in respect of municipalities, with the limitation that the provisions of the State Act cannot be inconsistent with the mandate of the Scheme of Part IXA of the Constitution.
Subject
Constitutional Law - Local Government
Act Referred
Headnote
notification - Municipal Board - Article 243Q, Section 5 of the Municipalities Act - The court discussed the scope of Part IXA of the Constitution and Article 243Q, and found that the two notifications under Article 243Q and Section 5 of the Municipalities Act were not warranted. The court also emphasized the legislative competence of the State Legislature in respect of municipalities, with the limitation that the provisions of the State Act cannot be inconsistent with the mandate of the Scheme of Part IXA of the Constitution.
Fact of the Case:
The appeal was against an order setting aside a notification declaring Gram Panchayat Roopbas as a Municipal Board. The High Court found that no public notification as contemplated under Article 243Q(2) of the Constitution was produced, specifying Gram Panchayat Roopbas as a 'transitional area', and thus, it cannot be declared as a Municipal Board.
Finding of the Court:
The High Court erred in law to quash the notification issued. The State Legislature alone is competent to legislate in respect of municipalities, with the limitation that the provisions of the State Act cannot be inconsistent with the mandate of the Scheme of Part IXA of the Constitution.
Issues: The scope of Part IXA of the Constitution, the necessity of two notifications under Article 243Q and Section 5 of the Municipalities Act, and the legislative competence of the State Legislature in respect of municipalities.
Ratio Decidendi: The State Legislature alone is competent to legislate in respect of municipalities, with the limitation that the provisions of the State Act cannot be inconsistent with the mandate of the Scheme of Part IXA of the Constitution.
Final Decision: The order of the High Court was set aside, and the writ petition was dismissed. Consequently, the appeal was allowed.
Legal Category Hierarchy
Advocates appeared:
For the Appellant(s) : Dr. Manish Singhvi, Sr. Adv. Mr. Arpit Parkash, Adv. Mr. Milind Kumar, AOR
For the Respondent(s): Ms. Radhika Yadav, Adv. Mr. Amit Agrawal, AOR Mr. Naman, Adv.
For the Appellant(s) : Dr. Manish Singhvi, Sr. Adv. Mr. Arpit Parkash, Adv. Mr. Milind Kumar, AOR
For the Respondent(s): Ms. Radhika Yadav, Adv. Mr. Amit Agrawal, AOR Mr. Naman, Adv.
Table of Contents
2. Whether a separate notification under Article 243Q(2) of the Constitution is a prerequisite before constituting a Municipal Board under the State Municipalities Act. (Para 9 , 10 )
3. State legislative power over local government is plenary; notifications constituting municipalities are legislative functions and valid if the State Act is not inconsistent with Part IXA. (Para 8 , 14 , 16 )
4. A separate notification under Article 243Q(2) is not required if the State Act's provision for constituting municipalities is not inconsistent with the Constitution. (Para 16 )
5. High Court order set aside, writ petition dismissed, and appeal allowed. (Para 23 )
6. Is a separate notification under Article 243Q(2) required before a State Act notification to constitute a municipality?
No. If the State Act's provisions for establishing municipalities are not inconsistent with Part IXA of the Constitution, a separate notification under Article 243Q(2) is not warranted or contemplated. (Para 16 )
7. What is the legal nature of a State Government notification declaring a geographical area as a municipality?
Such notifications are legislative in character, specifically conditional legislation, rather than executive or administrative. Courts cannot substitute their own will for the government's decision if statutory provisions are complied with. (Para 9 , 11 , 12 )
8. To what extent can the State Legislature's power regarding local government be restricted?
The State's power to legislate within its competence is plenary and cannot be curtailed unless there is an express limitation placed on such power in the Constitution itself. (Para 14 )
9. How is inconsistency between a State law and Part IXA of the Constitution determined?
Inconsistency is interpreted as being mutually repugnant or contradictory. Principles used to determine repugnancy between State laws and Parliamentary laws are applied to determine inconsistency with Part IXA. (Para 14 )
JUDGMENT :
HEMANT GUPTA, J.
1. The present appeal is directed against an order passed by the High Court of Judicature 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. The High Court found that no public notification as contemplated under Article 243Q(2) of the Constitution of India has been produced specifying Gram Panchayat Roopbas as a “transitional area” and thus, it cannot be declared as a Municipal Board.
2. The Constitution (Seventy-Fourth Amendment) Act, 1992 introduced Part IXA in the Constitution which came into force on 20.4.1993. The Statement of Objects and Reasons as was published in the Gazette on 16.09.1991 when the Bill was introduced is as under:
“(1) In many States local bodies have become weak and ineffective on account of a variety of reasons, including the failure to hold regular elections, prolonged super-sessions and inadequate devolution of powers and functions. As a result, Urban Local Bodies are not able to perform effectively as vibrant democratic units of self-government.
(2) Having regard to these inadequacies, it is considered necessary that provisions relating to Urban Local Bodies are incorporated in the Constitution particularly for:
(i) putting on a firmer footing the relationship between the State Government and the Urban Local Bodies with respect to:
(a) the functions and taxation powers.
(b) arrangements for revenue sharing.
(ii) Ensuring regular conduct of elections.
(iii) ensuring timely elections in the case of super-session.
(iv) providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and women.
(3) Accordingly, it is proposed to add a new part relating to the Urban Local Bodies in the Constitution to provide for:
(a) constitution of three types of Municipalities:
(i) Nagar Panchayats for areas in transition from a rural area to urban area.
(ii) Municipal Councils for smaller urban areas.
(iii) Municipal Corporations for larger urban areas. The broad criteria for specifying the said areas is being provided in the proposed article 243-0.
(b) composition of Municipalities, which will be decided by the Legislature of a State, having the following features:
(i) persons to be chosen by direct election.
(ii) representation of Chairpersons of Committees, if any, at ward or other levels in the Municipalities.
(iii) representation of persons having special knowledge or experience of Municipal Administration in Municipalities (without voting rights).
(c) election of Chairpersons of a Municipality in the manner specified in the State law.
(d) constitution of Committees at ward level or other level or levels within the territorial area of a Municipality as may be provided in the State law.
(e) reservation of seats in every Municipality:
(i) for Scheduled Castes and Scheduled Tribes in proportion to their population of which not less than one-third shall be for women.
(ii) for women which shall not less than one-third of the total number of seats.
(iii) in favour of backward class of citizens if so provided by the Legislature of the State.
(iv) for Scheduled Castes, Scheduled Tribes and women in the office of Chairpersons as may be specified in the State law.
(f) fixed tenure of 5 years for the Municipality and re-election within six months of end of tenure. If a Municipality is dissolved before expiration of its duration, elections to be held within a period of six months of its dissolution.
(g) devolution by the State Legislature of powers and responsibilities upon the Municipalities with respect to preparation of plans for economic development and social justice and for the implementation of development schemes as may be required to enable them to function as institutions of self-government.
(h) levy of taxes and duties by Municipalities, assigning of such taxes and duties to Municipalities by State Governments and for making grants-in-aid by the State to the Municipalities as may
