The statutory nature of the right to elect and be elected, and the competence of the State Legislature to legislate in respect of local bodies.

HEMANT GUPTA, J.

1. The challenge in the present writ application is to Bihar Municipal (Amendment) Act, 2016, whereby Bihar Municipal Act, 2007 was amended to insert proviso to Section 13. The proviso inserted reads as under:--

"Provided that notwithstanding anything contained in any other provision of this Act, until the relevant figures for the census of the year 2021 are published, it shall not be necessary for the State Government to re-determine the number of wards on the basis of population of the municipal area ascertained at 2011 Census."

Section 13 of Bihar Municipal Act, 2007 contemplates composition of municipality and the number of the members thereof. The first proviso as incorporated in the Act, contemplates that the State Government shall determine the number of Councillors for each municipality before every election, by notification. The effect of the impugned amendment is that until such time, the figures of census for the year 2021 are published, it shall not be necessary for the State Government to re-determine the number of Wards on the basis of population in the Municipal area ascertained in 2011 Census.

2. We have heard learned Counsels for the parties and find no merit in the present writ application.

3. The argument of learned counsel for the petitioner is that Part-IXA of the Constitution has specified the mode of conduct of elections, i.e. the number of wards will be determined on the basis of population as ascertained at the last census. It is argued that such provisions are contained in Article 243T read with Article 243P(g) of Part-IXA of the Constitution. It is, thus, contended that since the Amending Act does away with the criteria so contemplated by the Constitution, therefore, it cannot be sustained it being contrary to the Constitution.

4. Entry-5 of List-II of the Seventh Schedule of the Constitution is "Local Government, that is to say, the Constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local Self-Government or village administration". Therefore, it is the State Legislature which is competent to legislate in respect of constitution of the local bodies. It is also provided under Article 243ZF of the Constitution that any provision of 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 this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from which commencement, whichever is earlier. Therefore, the Constitution has recognized that the competent Legislature is the State Legislature and that provisions of Part-IXA will be applicable only after the period of one year, if there is no provision enacted in the meantime.

5. Parts-IX and IX-A of the Constitution, relating to Panchayats and Municipalities were inserted by the Constitution (Seventy-third Amendment) Act, 1992 and Constitution (Seventy-fourth Amendment) Act, 1992. Parts-IX and IX-A came into force on 24.4.1993 and 1.6.1993 respectively. The object of Part-IX was to introduce the Panchayat system at grass root level. As Panchayat systems were based on State Legislations and their functioning was unsatisfactory, the amendment to the Constitution sought to strengthen the Panchayat system by giving a uniform constitutional base so that the Panchayats become vibrant units of administration in. the rural area by establishing strong, effective and democratic local administration so that there can be rapid implementation of rural development programmes. The object of Part-IX as stated in the Statement of Objects and Reasons is extracted below:--

"In many States, local bodies have become weak and ineffective on account of a variety of reasons, including the failure to hold regular election