2022 Supreme(Pat) 775

IN THE HIGH COURT OF JUDICATURE AT PATNA
SANJAY KAROL, CJ and S. KUMAR, J.
CWJC Nos.11717, 12524, 12619, 12809 of 2021 with 5713, 9047 of 2020
(21.10.2022)
Dr. Ashish Kumar Sinha & Ors. (in 11717)
Bihar Local Bodies Employee Federation & Ors. (in 5713, 12524)
Ramesh Kumar & Ors. (in 9047)
Patna Nagar Nigam Staff Union (in 12619)
Binod Kumar Yadav & Anr. (in 12809)
vs.
Union of India & Ors. (in 11717, 12619)
State of Bihar (in 5713, 9047,
12524, 12809) ... Respondents

Headnote:

Bihar Municipal (Amendment) Act, 2021 – Constitution (74th) Amendment Act, 1992 – Bihar Municipal Act, 2007 – Sections 36, 37, 38, 40A, 41 and 43 – Challenge to Sections 36, 37, 38, 40A, 41 and 43 of Chapter V of Bihar Municipal Act, 2007 and subsequent amendment to Sections 36, 37, 38 and 41 of said Act, introduced on 31.03.2021 vide Bihar Municipal (Amendment) Act, 2021 (Bihar Act 06, 2021) – Impugned amendment while not altering responsibilities of municipal bodies hampers or constrains use of an essential tool for fulfillment of such responsibilities – Golden thread of independence runs across key words of the 74th Amendment which must be adhered to – Withdrawal of control of Empowered Standing Committee over officers of State Government does not further and instead sets back commendable goal of collective responsibility – Impugned amendments (Sections 2, 3, 4 and 5 of Amendment Act) violate provisions of Part IX-A of Constitution of India – Principles of decentralization self-governance, autonomy and accountability form basis of both constitutional amendment as also Municipal Act – In Municipal Act, these principles, prior amendment, to some extent, were reflected – Now, with amendment, largely, power stands centralized and Empowered Standing Committee, an elected body, in many ways reduced to be a mere receptacle, defeating objective of democratic decentralization – Sections 2, 3, 4 and 5 of Bihar Municipal (Amendment) Act, 2021 are in contravention of Bihar Municipal Act, 2007 – Impugned amendments struck down and Bihar Municipal Act, 2007 as prior to such amendment restored in its entirety – Issue of some of provisions of Bihar Municipal Act, 2007 being intra or ultra vires left open to be adjudicated in an appropriate case. (Paras 198, 207.1 to 207.4 and 208)

Constitution of India – Article 243-W – Whether expression "enable them to function as Institutions of self-government" under Article 243-W of Constitution of India would encompass power of Municipal Body to have complete freedom and right of selection, appointment, posting and transfer of its employee(s) – State's law making power gives them authority to make law governing general processes with respect to employment, however, such exercise cannot be done in a manner that it leaves no room for Municipalities to function as per their own need and requirement – Control exercised by Municipal authority in matters concerning its employees is not complete/unbridled or entirely autonomous, however, there is considerable freedom guaranteed by virtue of such authority being a quasi-autonomous body which must be respected in line with horizontal separation of powers under the constitution. (Paras 210 and 211)

Statute Law – Constitutionality of a Legislation – Singular ground to declare an act of legislature or provision of Act as invalid as that it violates some provisions of Constitution in such a manner that there can be no doubt – When declaring such act of legislature to be unconstitutional, a Court must be "absolutely sure" that there can be no manner of doubt that it violates a provision of Constitution – If two views are possible, one upholding constitutionality then all effort must be made, including strained construction to uphold such validity – Presumption always exists in favour of constitutionality and burden to prove otherwise is upon person who attacks the same. (Paras 36 and 37)

Constitution of India – Article 226 – Vires of a legislation or constitutional validity thereof can be challenged before High Court under Article 226 of Constitution of India – In judicial review, Court sits not to substitute wisdom of legislature, but to examine as to whether such balance has been achieved or not – It is legislature that understands need of people. (Paras 40 and 42)

Interpretation of Statute – "May" and "Shall" – Exercise of interpretation of statutes, a provision is not read in solitude, but in context – Language used is to be interpreted in such light – Use of word "may" does not always mean that authority upon which power is vested may or may not exercise that power – Whether or not word "may" should be construed as mandatory and equivalent to word "shall" would depend upon object and the purpose of enactment. (Paras 73 and 80)

Constitutional Law – Separation of Powers – Constitutional scheme clearly lays down a horizontal separation of powers – State has law making powers for Municipality – However, this law making power cannot dilute this horizontal separation beyond a point – State Legislature possesses ability, under Constitution, to legislate on matters concerning municipal bodies – Fact that State is competent to legislate in matters concerned therewith, same does not dilute fact that local Government is a constitutionally recognized facet of federal structure of India. (Paras 162, 186 and 188)