,,,
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 notifica-tion 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:,,,
“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 supersessions 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; and,,,
(b) arrangements for revenue sharing;,,,
(ii) Ensuring regular conduct of elections;,,,
(iii) ensuring timely elections in the case of supersession; and,,,
(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 be provided in the State law;,,,
(i) xx xx xxâ€,,,
3. Article 243ZF of the Constitution mandated that any provision of any 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 Part IXA shall continue to be",,,
in force until amended or repealed by a competent Legislature or any other competent authority or until the expiration of one year from such,,,
commencement whichever is earlier. Article 243ZF reads thus:,,,
Constitution of India,"Rajasthan Municipalities Act,     2009Â",,
243Q. Constitution of Municipalities .
â€"(1) There shall be constituted in every State,â€
(a) a Nagar Panchayat (by whatever name called) for
a transitional area, that is to say, an area in transition
from a rural area to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in
accordance with the provisions of this Part:
Provided that a Municipality under this clause may not
be constituted in such urban area or part thereof as
the Governor may, having regard to the size of the
area and the municipal services being provided or
proposed to be provided by an industrial establishment
in that area and such other factors as he may deem
fit, by public notification, specify to be an in dustrial
township.
(2) In this article, “a transitional areaâ€, “a
smaller urban area†or “a larger urban areaâ€
means such area as the Governor may, having regard
to the population of the area, the density of the
population therein, the revenue generated for local
administration, the percentage of employment in non-
agricultural activities, the economic importance or
such other factors as he may deem fit, specify by
public notification for the purposes of this Part.","Section 5 of the Municipalities ActÂ
5. Establishment and incorporation of Municipality.
â€
(1) In every transitional area, there shall be
established a Municipal Board and every such
Municipal Board shall be a body corporate by the
name of the Municipal Board of the place by
reference to which the Municipality is known and shall
have perpetual succession and a common seal and
may sue or be sued in its corporate name.
(2) In every smaller urban area, there shall be
established a Municipal Council and every such
Municipal Council shall be a body corporate by the
name of the Municipal Council of the city by
reference to which the Municipality is known and shall
have perpetual succession and a common seal and
may sue and be sued in its corporate name.
(3) In every larger urban area, there shall be
established a Municipal Corporation and every such
Municipal Corporation shall be a body corporate by
the name of the Municipal Corporation of the city by
reference to which the Municipality is known and shall
have perpetual succession and a common seal and
may sue and be sued in its corporate name:
Provided that a Municipality under this Section may
not be constituted in such urban area or part thereof
as the Governor may, having regard to the size of the
area and the municipal services being provided or
proposed to be provided by an industrial establishment
in that area and such other factors as he may deem
fit, by notification, specify to be an industrial township:
Provided further that having regard to the cultural,
historic, tourist or other like importance of an urban
area, the State Government may, by notification in the
Official Gazette, exclude such area from the
Municipality and constitute, or without excluding such
area from the Municipality constitute in addition to the
Municipality, a development authority to exercise such
powers and discharge such functions in the said area
as may be prescribed and notwithstanding anything
elsewhere in this Act, may, in relation to such area,
delegate, by notification in the Official Gazette, such
municipal powers, functions and duties to the said
authority as it may think appropriate for the proper,
rapid and planned development of such area.",,
town area under Section 3 of the Act which does not require the State Government to make such declaration after giving notice of its intention so to,,,
do to the members of the public and inviting their representations regarding such action. The power of the State Government to make a declaration,,,
under Section 3 of the Act is legislative in character because the application of the rest of the provisions of the Act to the geographical area which is,,,
declared as a town area is dependent upon such declaration. Section 3 of the Act is in the nature of a conditional legislation. Dealing with the nature of,,,
functions of a non-judicial authority, Prof. S.A. De Smith in Judicial Review of Administrative Action (3rd Edn.) observes at p. 163:",,,
“However, the analytical classification of a function may be a conclusive factor in excluding the operation of the audi alteram partem rule. It is",,,
generally assumed that in English law the making of a subordinate legislative instrument need not be preceded by notice or hearing unless the parent,,,
Act so provides.â€,,,
xx xx xx,,,
9. We are, therefore, of the view that the maxim “audi alteram partem†does not become applicable to the case by necessary implication.",,,
xx xx xx,,,
17. We are, therefore, of the view that a notification issued under Section 3 of the Act which has the effect of making the Act applicable to a",,,
geographical area is in the nature of a conditional legislation and that it cannot be characterised as a piece of subordinate legislation. In view of the,,,
foregoing, we hold that the contention of the plaintiff that the declaration made by the State Government under Section 3 of the Act declaring the area",,,
in which the sugar factory of the plaintiff is situated as a part of the Tulsipur town area is invalid is not tenable.â€,,,
12. In Sundarjas Kanyalal Bhatija, a draft notification proposed the formation of a “Kalyan Corporation†by merging municipal areas of Kalyan,",,,
Ambarnath, Dombivali and Ulhasnagar. The State Government issued a notification excluding Ulhasnagar from the proposed corporation. The High",,,
Court found that the decision to exclude Ulhasnagar was taken by the Government abruptly and in an irrational manner. This Court held as under:,,,
“27. Reverting to the case, we find that the conclusion of the High Court as to the need to reconsider the proposal to form the Corporation has",,,
neither the attraction of logic nor the support of law. It must be noted that the function of the Government in establishing a Corporation under the Act,,,
is neither executive nor administrative. Counsel for the appellants was right in his submission that it is legislative process indeed. No judicial duty is laid,,,
on the Government in discharge of the statutory duties. The only question to be examined is whether the statutory provisions have been complied with.,,,
If they are complied with, then, the court could say no more. In the present case the Government did publish the proposal by a draft notification and",,,
also considered the representations received. It was only thereafter, a decision was taken to exclude Ulhasnagar for the time being. That decision",,,
became final when it was notified under Section 3(2). The court cannot sit in judgment over such decision. It cannot lay down norms for the exercise,,,
of that power. It cannot substitute even “its juster will for theirsâ€.â€,,,
13. In Champa Lal, this Court had struck down a notification issued by the Governor of the State of Rajasthan holding that in the absence of",,,
notification which meets the requirement of Article 243Q(2), the entire exercise undertaken by the State of Rajasthan in upgrading the Napasar",,,
Village Gram Panchayat to be a Nagarpalika is inconsistent with the requirements provided thereof under the Constitution.,,,
14. We find that such judgment is not in tune with the scheme of the Constitution and is contrary to a three-Judge Bench judgment of this Court,,,
reported as Parmar Samantsinh Umedsinh v. State of Gujarat & Ors. 2021 SCC OnLine SC 138 wherein the vires of the Gujarat Provincial Municipal,,,
Corporation Act, 1949 were subject matter of challenge on the ground that the State law has provided more than one representative from a single",,,
Ward and, thus, this provision is inconsistent with the provisions of Article 243R and Article 243S of the Constitution. This Court held as under:",,,
“19. The power of competent Legislature, i.e., State Legislature in the light of enabling provisions provided in the Constitution with regard to",,,
framing of laws concerning Legislature cannot be whittled down by way of restrictive interpretation as contended by the appellants. The State,,,
Legislature in federal set up specially in the matter of local Government are to enable enough seats to adopt the reservation based on local body.,,,
xxx xxx xxx,,,
35. The ratio which can be culled out from the above judgment is that power of the State to legislate within its legislative competence is plenary and,,,
the same cannot be curtailed in the absence of an express limitation placed on such power in the Constitution itself.,,,
36. Article 243ZF provides that any 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 Part IXA, shall not continue beyond expiration of one year from",,,
commencement of the constitutional amendment. Thus, Part IXA of the Constitution categorically contemplated that any law made by State",,,
Legislature, which is inconsistent with the provisions of Part IXA shall cease to operate on the expiration of one year or till amended or repealed by a",,,
competent Legislature, whichever is earlier. The Constitution provisions, thus, mandates that any law of the State, which is inconsistent, cannot",,,
continue. Thus, this limitation shall also govern any law made after enforcement of Constitution (Seventyfourth Amendment) Act. Thus, a law, which",,,
is inconsistent with Part IXA cannot be framed by the State Legislature.,,,
xxx xxx xxx,,,
38. One of the meanings of expression “inconsistent†as approved by this Court is mutually repugnant or contradictory. Article 254 of the,,,
Constitution contains a heading “inconsistency between laws made by the Parliament and the laws made by the Legislature of the State†whereas,,,
under Article 254(1) and Article 254(2) the words used are repugnant. The Constitution itself, thus, has used the words inconsistency and repugnancy",,,
interchangeably. To find out as to whether a law made by State Legislature is inconsistent with provisions of Part IXA of the Constitution, the",,,
principles which have been laid down by this Court to determine the repugnancy between the law made by the Legislature of a State and law made by,,,
Parliament can be profitably relied on. We, thus, need to notice the principles on which the repugnancy of law made by State and law made by the",,,
Parliament is found out.,,,
xxx xxx xxx,,,
50. Thus, the Legislature of a State may by law has to provide all matters relating to or in connection with election to the Municipalities, which includes",,,
filling of the seats in the Municipality by person chosen by direct election. Articles 243R and 243ZA does not give any indication as to whether from,,,
territorial constituency, i.e., the Wards, whether only one member has to be elected in the Municipality or it can be multiple member constituency. The",,,
constitutional provisions of Article 243R, which provides for composition of Municipalities and that of Article 243ZA does not give any indication to the",,,
above. The provisions of Article 243ZG, which deals with bar to interference by courts in electoral matters throws some light…",,,
( 1 ) Greater Urbanized area
(Municipal Corporation)",-,Urbanized area of population of 5 lacs,
( 2 ) Small urbanized area
 (Municipal Council)",-,"All urbanized area and all district headquarters (except Municipal
Corporation) having population of more than 1 lac and less than 5
lacs.",
(3) Transitional area (Municipality
Board)",-,Urbanized area of 1 lac population,
S. No.,District,Name of Gram Panchayat,"Newly constituted forth
class Municipal Councils
1.,Bharatpur,Roopbas,Municipal Board Roopbas
