Page 1 of 9

IN THE HIGH COURT OF JUDICATURE AT PATNA

(CIVIL WRIT JURISDICTION)

CWJC No. 12619 of 2021

Patna Nagar Nigam Staff Union Through its General Secretary, Mr. Nriaj Kumar

Verma

…………………… Petitioner

VERSUS

The Union of India through the Cabinet Secretary, Government of India & Others

...................... Respondents

WRITTEN NOTES OF ARGUMENTS

The Constitution (Seventy-Fourth Amendment) Act, 1992:-

The statement of object and reasons:-

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,
 Page 2 of 9

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)

(ii)……..

3. Accordingly, it is proposed to add a new part relating to the Urban Local Bodies
in the Constitution to provide for-

(a)

(b)…..

(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 institution of self-government.

Devolution of Power and Function:-

Preamble of the Bihar Municipal Act, 2007 provides that it is based on the
principles of participation in, and decentralization, autonomy and accountability
of, urban self- government.

The Hon’ble Apex Court in Civil Appeal No. 706 of 2021 (Arising out of SLP(C)
No. 24950 of 2015) {Parmar Samantsinh Umedsinh Versus State of Gujarat and
 Page 3 of 9

Others}, wherein the Hon’ble Supreme Court while discussing the powers of the
state government to frame laws for municipality as provided under the constitution
vide Article 245 and Schedule V List II and III has provided in Para 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.”

It has been confirmed by the principle as laid above that any law which is
inconsistent with the provision of Part IXA of the constitution shall be ultra vires.

The rule of inconsistency and repugnancy has been also been explained by the
Hon’ble Supreme Court in the Parmar Samantsinh Umedsinh (supra). It is
contention of the petitioner that the present amendment under challenge are
 Page 4 of 9

repugnant to Article 243W of the Constitution of India which provides for the
powers, authority and responsibilities of the Municipalities.

243W. Powers, authority and responsibilities of Municipalities, etc-

Subject to the provisions of this Constitution, the Legislature of a State may,
by law, endow

(a) the Municipalities with such powers and authority as may be necessary to

enable them to function as institutions of self government and such law may
contain provisions for the devolution of powers and responsibilities upon
Municipalities, subject to such conditions as may be specified therein, with
respect to

(i) the preparation of plans for economic development and

social justice;

(ii) the performance of functions and the implementation of

schemes as may be entrusted to them including those in relation
to the matters listed in the Twelfth Schedule;

(b) the Committees with such powers and authority as may be necessary to

enable them to carry out the responsibilities conferred upon them including
those in relation to the matters listed in the Twelfth Schedule.

From the bare perusal of Article 243W of the Constitution of India it is quite
evident that it is an enabling clause and it enables the State Government to make
laws for the Municipalities but on a careful perusal another aspect also appears that
at the very instance it is also an enabling clause for the Municipal Authorities and
 Page 5 of 9

it enables them to function as an institution of self government. It is therefore most

humbly submitted that the words envisaged in the Article requires careful
interpretation so as to fulfill the object of the 73 rd Amendment inasmuch as
according to Salmond:

“As the essence of the law lies in the spirit, not in its letter, but letters are
the only way in which intentions are expressed. The words are an external
manifestation of intention that it involves. When there is the possibility of
one or more interpretations of statute, courts have to adopt that
interpretation which reflects the ‘true intention of the legislature’ which can
also be considered legal meaning statutory provisions.”

Usage of the word “may” in Article 243W has to be read with the obligation
imparted from the object of the Article as provided through the further reading of
the section. The Hon’ble Supreme Court while discussing the usage of the word
“may” in (1977)2 SCC 166 {The Official Liquidator Vs Dharti Dhan(P)Ltd (Para-
6-10)} provided:-

……..“In fact, it is not quite accurate to say that the word “may”, by
itself, acquires the meaning of “must” or “shall” sometimes. This
word however always signifies a conferment of power. That power
may, having regard to the context in which it occurs, and the
requirements contemplated for its exercise, have annexed to it an
obligation which compels its exercise in a certain way on facts and
circumstances from which the obligation to exercise it in that way
 Page 6 of 9

arises. In other words, it is the context which can attach the obligation
to the power compelling its exercise in certain way. The context, both
legal and factual, may impart to the power that obligatoriness.”….

Therefore the use of word “may” although enables the State to make laws but the
following part of the article makes is obligatory upon the State to enable the
Municipality through such law to function as Institution of Self-Government.
Therefore, the State Government in no manner can enact legislation to disable the
municipality in functioning as an institution of Self Government.

The word self government has been defined as

 AIR 1998 AP 142 (Velpur Gram Panchayat and another Vs Asst.

Director of Marketing, Guntur & Others) –

“……..The expression “self-Government” although incorporated under

Article 243(d) of the Constitution, is not defined in any of the enactments in
question. Therefore it becomes a political expression, understood in
administrative law to be a Government which can rule itself and it is beyond
the meaning of autonomy.

16. The expression ‘self Government’ from the latin gubernaculum means
“The system of polity in a State; that form of fundamental rules and
principles by which a nation or State is governed, or by which individual
members of a body politic are to regulate their social actions. A constitution
either written or unwritten, by which the rights and duties of citizens and
public officers are prescribed and defined, as a monarchical Government, a
 Page 7 of 9

republican Government, etc. The sovereign or supreme power in a state

expresses its will and exercises its functions; or the framework of political
institutions, departments, and offices, by means of which the executive,
legislature and administrative business of the State is carried on” (under the
word ‘GOVERNMENT’ at page 695 of Black’ Law Dictionary, sixth edition,
1990). The expression ‘self-Government’ understood in that context is a
soveriegn Government to rule by Page: 153 itself. Self-Government as a
noun means control of one's own (political) affairs, and self-Government as
an adjective means having control over oneself, specifically having self-
Government (page 842, Penguins English Dictionary). ‘Self-Government’
means “self-rule, self-determination, home rule, heteronomy, dominion rule,
colonial Government, colonialism, neo colonialism, provisional
Government, coalition Government” (Item 612, page 475 of the Original
Roget's Roget's International Thesaurus, fifth edition). The Supreme Court
in Valjibhai Muljibhai Soneji v. State of Bombay, AIR 1963 SC 1890 was
considering the meaning of the expression ‘local authority’, and it held that
a State Transport Corporation was not a local authority although it could
acquire the land by virtue of the provisions of the Land Acquisition Act.
Reliance was taken from Section 3(17) of the General Clauses Act, for the
purpose of knowing the meaning of the expression ‘local authority’.
Therefore, the meaning of local authority is restricted and exclusive of the
meaning of self-Government. A local authority and local self-Government
are different in form, intent and the Governments. A local authority like the
muncipality or as in the present case Agricultural Market Committee will be
statutory authorities, whereas a Gram Panchayat as in the present case by
 Page 8 of 9

virtue of Article 243(d) would be a self-Government or may be a local

selfGovernment, but not a local authority. In that view of the matter, to put it
in substance, a Gram Panchayat as a self-Government is a sovereign body
having both constitutional and a statutory status, to not only govern itself
but to govern its subjects within its territory. The meaning of Panchayat Raj
is akin to a territorial kingdom, however within the democratic intent and
subject to the provisions of the Panchayat Raj Act and the Constitution.
Therefore, it is difficult to think that a market committee constituted under
the Agricultural Markets Act has any jurisdiction over the Gram Panchayat
or for the purposes of having the markets as in the present case.”

The Amendment Act, vide section ………….. takes away the power of
Municipality to appoint staff on Group C posts it further deletes the provision for
appointment of municipal workers in the municipality meaning thereby that the
municipality shall create schedule of post for group D workers by virtue of section
…… but the Act after the amendment is completely silent on the point of
appointment of those employees. Therefore in the given scenario, created by the
2021 amendment read alongwith the provisio envisaged in Section 67 of the Act by
the 2020 Amendment and the order of the State Government vide …………. Dated
…………….. whereby the state government has ordered the municipalities to
outsource their work to private agencies employees, only one conclusion can be
drawn i.e. the work of the municipalities shall be conducted by the private
companies to which the work shall be outsourced through e-tender process. It is
therefore most humbly submitted that Article 240W of the Constitution of India
 Page 9 of 9

does not allows the state government to divert the function of the municipality
towards private firm.