Patna High Court: A Division Bench of Sanjay Karol, C.J. and S. Kumar, J. declared Bihar Municipal (Amendment) Act, 2021 as unconstitutional to the effect of amendments carried out in Sections 36, 37, 38 and 41 of the Bihar Municipal Act, 2007, by virtue of amending Sections 2, 3, 4 and 5.
In the present case, Sections 36, 37, 38, 40-A, 41 and 43 of Chapter V of the Bihar Municipal Act, 2007 (hereinafter “the Municipal Act”) and subsequent amendments to Sections 36, 37, 38 and 41 of the said Act, introduced vide the Bihar Municipal (Amendment) Act, 2021 (hereinafter “the Amendment Act”) were challenged.
Submissions on behalf of the Petitioners:
(i) The Municipal Act and the Amendment Act are in contravention of objects and reasons enshrined in the 74th Constitutional Amendment Act, 1992.
(ii) The Amending Act cannot be contrary to the Parent Act, that is, the Municipal Act, as representing cadre autonomy available to the Municipal Bodies, is taken away by the Amending Act.
(iii) The power of appointment and administrative control of employees which should rest with the Empowered Standing Committee (ESC) is being taken away by repeated amendments, resulting in concentration of power with the State Government which is against the spirit of devolution of powers.
(iv) There is a conflict between the objective of the Amending Act and that of the Parent Act, that is, the Municipal Act. The latter was made in furtherance of the provisions of self-governance, devolution of powers etc. to bring the State in line with the introduction of the third level of government while the former has been made with the objective of taking away the power of appointment as well as rendering moot any administrative control the municipality had over its officers.
(v) Group ‘C’ posts are converted to State Cadre, the cost incurred in meeting expenses of salary and other emoluments will be borne out of the Municipal Funds. Subsection (2) of Section 39 of the Municipal Act grants power to the Municipality to provide pension, gratuity, bonus etc. And transfer from one autonomous body to another will lead to confusion regarding such payment.
(vi) The Amendment Act is in complete violation of the provisions contained in Article 243-W of the Constitution of India. It empowers the State Legislature to make laws for Municipality, but enablement is to make laws in a manner which allows Municipality to function as institutions of self-government.
(vii) The impugned Amendment Act is a colourable exercise of power. The legislature ought not to do indirectly what cannot be done directly- ‘Quando aliquid prohibetur ex directo, prohibetur et per obliquum’.
(viii) The objective behind insertion of Part IX-A of the Constitution of India was to enable local bodies who had become weak and ineffective to function as vibrant units of self-government. Therefore, the legislative competence of the State to amend the Municipal Act must be in consonance with Part IX-A of the Constitution.
(ix) The Municipal Act was brought in to bring the State in conformity with the Constitution of India as amended by the 74th Constitutional Amendment Act, 1992 on the principles of participation, decentralization autonomy, accountability etc. Moreover, separation of powers is part of the basic structure of the Constitution and the exercise carried out by the State is in contravention of such separation.
Submissions on behalf of the Respondents:
(i) A practical issue is faced in the free and fair appointment on the posts of Group ‘C’ and that these positions being used to “remain working in a particular municipal office for a long time” lead to corruption. Post amendment, transfers of Group ‘C’ employees became possible, resulting into better management of the Municipalities with “efficient and experienced employees”.
(ii) For quite some time, the need for amendment was being felt “on account of practical difficulties, implementation related problem and change of policy of the State Government relating to Group ‘D’ services”.
(iii) On the grounds for challenging the vires of an Act, it was submitted that lack of legislative competence, violation of fundamental rights and any other provisions of the Constitution are the only grounds. Schedule VII, List II, Entry 5 of the Constitution deals with local Government, that is, it gives exclusive domain to State Legislature to make laws for the subject therein. This power is to be construed broadly to extend to all ancillary and subsidiary matters which can be reasonably encompassed by it.
(iv) The amendment does not take away or affect any of the core functions of the Municipality, nor does it interfere with the electoral process.
Observations made by the Court:
(i) Sections 2, 3, 4 and 5 of the Amendment Act violate the provisions of Part IX-A of the Constitution of India and Bihar Municipal Act, 2007. These sections are contrary to the 74th Constitutional Amendment Act, 1992 as both the major effects, that is, the recentralization of power and institution of self-government being weakened as being dependent on the State Government for regulation of its employees, are incompatible with the idea, intent and design of the constitutional amendment and are manifestly arbitrary.
(ii) Prior to the amendment, the principles of decentralization, self-governance, autonomy, and accountability were reflected in the Municipal Act. But, after the amendment, the power stands centralized and the said amendments place hurdle in achievement of self-governance.
(iii) The Empowered Standing Committee (ESC), in other words, the executive of the Municipal Authority, being expected, only to be answerable to the public for functions enumerated in the Act, but not have control over the executing officers and staff, is excessive and manifestly arbitrary, for, a Municipal Authority is envisaged as an institution of self-government representing decentralization of authority.
Thus, the Court held that the amendments are struck down and the Bihar Municipal Act, 2007 as prior to such amendments is restored in its entirety.
[Dr. Anish Kumar Sinha v. Union of India, 2022 SCC OnLine Pat 3472, decided on 21-10-2022]
Advocates who appeared in this case :
For the Petitioner(s): Y.C. Verma, Senior Advocate;
Rajeeva Roy, Senior Advocate;
Ms. Mayuri, Advocate;
Kamleshwar Pandey, Advocate;
Ms. Priyanka Singh, Advocate;
Anuj Kumar, Advocate;
Madhav Raj, Advocate;
Dr. Anjani Pd. Singh, Advocate;
Siddharth Prasad, Advocate;
Sunit Kumar, Advocate;
Ms. Surya Nilambari, Advocate;
Om Prakash Kumar, Advocate;
Ms. Mayuri, Advocate;
Kamleshwar Pandey, Advocate;
Akash Keshav, Advocate;
Ms. Akansha Malviya, Advocate;
Vishal Kumar Singh, Advocate;
Deepak Kumar Singh, Advocate;
For the Respondent(s): Dr. K.N. Singh, ASG;
Alok Kumar Jha, CGC;
Sriram Krishna, JC to ASG;
Ms. Prakritita Sharma, JC to ASG;
Lalit Kishore, Advocate General;
Pawan Kumar AC to AG;
Subhas Prasad Singh, G.A. 3;
For the Union of India: Dr. K.N. Singh, A.S.G.;
R.K. Sharma, CGC;
For the State: Lalit Kishore, Advocate General;
Subhash Prasad Singh, G.A. 3;
Pankaj Kumar, SC-12;
Abbas Haider, SC-6;
Pawan Kumar, AC to AG;
For the PMC: Prasoon Sinha, Advocate;
For the GMC: Rabindra Kumar Priyadarshi, Advocate.