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2003 Supreme(Pat) 963
PATNA HIGH COURT
Ravi S.Dhavan and S.K.Singh JJ.
Bihar Mayor Council
Versus
Union Of India
Criminal Writ Jurisdiction No. 1019 of 2003 ;
Decided On : SEPTEMBER 04, 2003
Headnote:Patna Municipal Corporation Act, 1951-Sections 19 and 20-Administrator or an Executive Officer is only a facilitator to an elected local body, or a substitute to fill the void if such a self-governing body is superseded under\ law-Mayor, as a Chairperson to an elected body is democratically superior to a Chief Executive Officer who is a civil servant in a civic body-the Mayor cannot be put in a position of subjugation with a weak one-year tenure-Merely because the State Legislature of Bihar forgot to define Mayor in the very Act which constitutes PMC, cannot belittle the position of Mayor. (Paras 5 to 9 and 28)
Constitution of India-Article 243 r/w Section 19 of Patna Municipal Corporation Act, 1951- The area of conflict is the insecurity of the Mayors office in an outdated law which has yet to be updated and fall in line with the amended provisions of the Constitution-This subjugation of a Mayor by a bureaucrat is the real cause for the conflict-When a three tiered government has been provided by the Constitution as a pattern, to ignore the constitutional provisions only gives rise to two presumption that(a) the government in power is ignorant of them or (b) it does not care about the Constitution or would like to hold on to a misplaced power against the spirit of the Constitution-Self governing institutions in Bihar have already been damaged by prolonged and continuous super-session-While independence was sought to secure self government by throwing out the colonial power the administrators in democratic India worked for colonizing self government institutions for themselves-Superseding local self government and putting administrators on them is a sola topi approach with plumes and feathers suggesting the pattern of a saheb and a native-There is no place for such a civil service under the Constitution of India-That civil service was the guardian of the empire-It should have gone with the Raj-The Chief Executive officer in a Municipality or a corporation, is subservient to, an elected body not parallel to it-Thus, the Patna Municipal Corporation Act, 1951 which has given annual term to the Mayor and the Deputy Mayor is against the spirit of the Constitution and inconsistent with the scheme of local self government after amendments were made to the Constitution of India- The term of any Councillor, of which a Mayor and a Deputy Mayor cannot be ex-eluded from being members of the house which the Corporation is, the tenure of the Councillors is co-terminus with the tenure of the municipality or the corporation-Any enactment which stipulates a lesser tenure is ultra vires to the Constitution-The heading of Section 19 which reads to suggest an annual election, the word "Annual" and in the text the phrase "to hold office until first meeting of the next following year" are ultra vires to the Constitution and are struck off and deleted from the Act-Hereinafter this Section shall read to suggest that there is an election of a Mayor and a Deputy Mayor- The Mayor and the Deputy Mayor along with him shall have the tenure which is co-terminus with the life of the municipality or corporation unless their tenure is curtailed for any reasons which has been referred to and discussed in this judgment. (Paras 21, 30, 35, 37)
R.S.Dhavan, J.
1. This petition raises two issues on the functioning of local self-government. In the present case, it is about the functioning of the Patna Municipal Corporation. The Patna Municipal Corporation functions under the Patna Municipal Corporation Act 1951.
2. On behalf of the petitioner arguments were submitted by Messrs M.P. Gupta, Advocate and Mihir Kumar Jha, Advocate, each of them had submitted separately. On behalf of the State the submissions were made by Additional Advocate General 2 Mr. S.K. Ghose, Senior Advocate, and Mr. S.A. Hussain, Standing Counsel No. 6. On the day orders were reserved, the Court passed an order recording a summary of the proceedings until final date of hearing. This order is reproduced:
"The Judgment on this case is being reserved today after having heard learned Counsel for the petitioner Mr. Mihir Kumar Jha and Counsel for the State Mr. S.A. Hussain, S.C. 6.
On the last occasion when this matter was listed, the Court had made it clear in no uncertain terms that this case will not be adjourned no matter what happens. This was occasioned as the issue is on the mandate of the Constitution after 73rd and 74th amendments. The Constitution has already indicated that whatever laws which may exist (in any state), could at best continue for one year. Thereafter, every State was to fall in line with the mandate given in the Constitution. In the circumstances, the State of Bihar has had 9 years to fall in line.
The Court had taken adequate precaution in this case first issue notice of motion. Thereafter, noticing that the arguments were to the effect that certain provisions of the Patna Municipal Corporation Act 1951 are challenge as Ultra vires to the Constitution, the Court was obliged to issue notices to the Advocate General, Bihar. This was done on 12 March 2003. In a matter so serious as this in which notice has been issued to the Advocate General, the Court is constrained to observe that it had not the benefit of an address from the Advocate General, Bihar.
Thereafter, the Court was given to understand that necessary provisions of the Constitution of India Particularly under Chapter IXA (the Municipalities) have been taken into account and regard being had to the spirit of the Constitution that Municipalities and Panchyats be made effective self governing institutions changes are being made in the requisite Municipal Laws (Panchyats not excluded), and an exercise has been undertaken seriously. This aspect is on record also.
This matter has seen several adjournments.
Finding that nothing concrete was being reported to the Court and lest the provisions of the Constitution of India be not belittled at the hands of the State respondents, the Court required the Government of Bihar to place the entire records of the matter and a certiorari, accordingly, was issued. This was on 25 July, 2003 The occasion to issue a certiorari for the production of the records, was a consequence of the pleadings made by the Chief Secretary in an affidavit filed before the Court. Further, the Additional Advocate General-II appearing on that day made a submission that he would not be able to justify the affidavit filed by the Chief Secretary because he was faced with the provisions of the Constitution of India. It was desired by the Additional Advocate General-11 that the matter be placed on 31 July, 2003. The petitioner protested that this adjournment was being sought only to purchase time on two grounds (a) the Session of the Legislature would be over by then and again this matter will go until the legislature convenes next and (b) the Chief Secretary was retiring. With this order on record the Judgment is reserved on the issue."
3. The record of the State government was placed before the Court.
4. Upon hearing Counsel for the parties, perusing the pleadings exchanged in the writ petition and after having also the record of the State Government as produced, learned Counsel for the parties were agreed t
