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Judgment
Sudhanshu Dhulia, J. (Oral)
A common issue has been raised in the above writ petitions, hence these are being decided together by this judgment. For the sake of convenience,
however, the facts of WPMS No.1639 of 2018 (Man Mohan Singh Malla v. State of Uttarakhand & Others) would be considered.
In all these petitions, petitioners are either ex-Chairman or ex-Vice Chairman or ex-Ward Members of the different Municipalities in the State of
Uttarakhand. In WPMS 1685 of 2018, the petitioner is the ex-Chairman of the Municipal Corporation, Roorkee. Admittedly, the term of all these local
bodies has come to an end. Petitioners are aggrieved by the appointment of an Administrator by the State Government in all these
Municipalities/Municipal Corporation after the expiry of their term. Since the State Government has exercised these powers (of appointment of
Administrators) under sub-Section (4) of Section 10-A of the Uttar Pradesh Municipalities Act, 1916 as it stands amended in the State of
Uttarakhand.*
According to the petitioners, duration of a Municipality under clause (1) of the Article 243U has to be five years and no longer. The emphasis is on
the words “and no longer†in clause (1) of Article 243U of the Constitution of India and the petitioners would argue that by appointing the
Administrators who are performing all the functions of a Municipality or a Municipal Corporation (as the case might be), the State Government is
increasing the tenure of these Municipalities thereby violating the provisions of the Constitution of India and for this reason the vires of sub-Section (4)
of Section 10-A of the Uttar Pradesh Municipalities Act, 1916, as it stands amended in the State of Uttarakhand, (from hereinafter referred to as the
‘Municipalities Act’) has also been challenged.
Article 243U of the Constitution of India reads as under:
“243U. Duration of Municipalities, etc.-
(1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its
first meeting and no longer:
Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.
* The original Municipalities Act is of Uttar Pradesh which is applicable in the State of Uttarakhand under Sections 86/87 of the U.P. Reorganization
Act, 2000.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning
immediately before such amendment, till the expiration of its duration specified in clause (1).
(3) An election to constitute a Municipality shall be completed, -
(a) before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date of its dissolution:
Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be
necessary to hold any election under this clause for constituting the Municipality for such period.
(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the
period for which the dissolved Municipality would have continued under clause (1) had it not been so dissolved.â€
Section 10-A of the Municipalities Act reads as under:
“10-A. Term of municipality.- (1) Every municipality shall, unless sooner dissolved under Section 39, continue for five years from the date
appointed for its first meeting and no longer.
(2) An election to constitute a municipality shall be completed, -
(a) before the expiry of its term specified in sub-section (1); or
(b) before the expiration of a period of six months from the date of its dissolution:
Provided that where the remainder of the period for which the dissolved municipality would have continued is less than six months. It shall not be
necessary to hold any election under this sub-section for constituting the municipality for such period.
(3) A municipality constituted upon the dissolution of a municipality before the expiration of its duration shall continue only for the remainder of the
period for which the dissolved municipality would have continued under sub-section (1), had it not been so dissolved.
(4) Notwithstanding anything to the contrary contained in any other provision of this Act, where, due to unavoidable circumstances or in the public
interest, it is not practicable to hold an election to constitute a Municipal Council/Nagar Panchayat before the expiration of its duration, then until the
due constitution of such Municipal Council/Nagar Panchayat, all powers, functions and duties of Municipal Council/Nagar Panchayat, shall be
exercised, performed and discharged by the District Magistrate, or by such Gazetted Officer not below the rank of Sub-Divisional Magistrate, to be
appointed in this behalf by the District Magistrate and such District Magistrate or such Officer shall be deemed in law to be the Chairman/President or
Committee, as the occasion may require:
Provided that the term of the Administrator appointed under this section, shall not exceed six months or till the new constitution of new Board.â€
Learned Counsel for the petitioners Sri Jitendra Chaudhary has challenged the very source of power for appointment of Administrator under sub-
section (4) of Section 10-A of the Municipalities Act being ultra vires to the Constitution of India and the challenge of the petitioners to incorporation
of sub-section (4) to Section 10-A is on the ground of “legislative competenceâ€.
The petitioners would argue that the source of power to legislate on a local body or local self-government is given in Entry 5 of List II of Seventh
Schedule of the Constitution of India which reads as under:
“1. ……
 2. …….
 3. …….
 4. …….
 5. Local government, that is to say, the constitution and powers of municipal
corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of local self-government or
village administration.â€
Learned Counsel for the petitioners would also argue that sub-section (4) of Section 10-A of the Municipalities Act and the order dated 2.5.2018
appointing the District Magistrates of all concerned districts as Administrators of the local Municipalities or the Municipal Corporations are without
jurisdiction. Hence, the petitioners have challenged not only the order dated 2.5.2018, but they have challenged the vires of sub-Section (4) of Section
10-A of the Municipalities Act.
Learned Counsel for the petitioners would argue that there is no provision either in Entry 5 of List II of the Seventh Schedule of the Constitution of
India for appointment of Administrator in local bodies nor such provision is given in Part IXA of the Constitution of India and, therefore, violation of
Constitution of India has been made by the State Government.
Learned Counsel for the petitioners would very heavily rely upon a judgment of a Division Bench of Allahabad High Court which was rendered on
5.12.2011 in the case of Sandeep alias Sandeep Mehrotra & Another v. State of Uttar Pradesh & Others, wherein a somewhat similar provision such
as sub-Section (4) of Section 10-A of the Municipalities Act has been held to be ultra vires on the ground of legislative competence. The reasoning
given was that the State Legislature cannot go beyond the powers as given under Entry 5 of List II of the Seventh Schedule, read with the provisions
of Part IXA of the Constitution of India, and since no such power of appointment of Administrator has been given to the State Government, the same
has been held to be ultra vires to the Constitution of India.
Learned Advocate General Shri S.N. Babulkar, assisted by the learned Chief Standing Counsel Shri Paresh Tripathi and learned Additional C.S.C.
Shri Yogesh Pandey, on the other hand would argue that the same provision was earlier challenged before a Division of this Court in the case of Rajiv
Lochan Sah v. State of Uttarakhand & Others, which was dismissed on 2.7.2010 (the case which was not considered by the Allahabad High Court),
wherein similar challenge to Section 10-A of the Municipalities Act failed. The relevant portions of this judgment are reproduced as under:
“4. The pointed assertion at the hands of the learned counsel for the petitioner is based on Clause (1) of Article 243 U, wherein the emphasis at the
hands of the learned counsel for the petitioner, is to the words “ . . . shall continue for five years from the date appointed for its first meeting and
no longerâ€. According to the learned counsel for the petitioner, the tenure of municipalities can be five years and no more, and as such, any
authorization under the provisions of the Uttar Pradesh Municipalities Act, 1916, so as to authorize extension of the tenure of the Board beyond five
years, will violate the mandate of Clause (1) of Article 243 U.
In order to adjudicate upon the controversy raised by the petitioner, it is imperative to first examine sub-Section (1) of Section 10-A. A perusal of
sub-Section
(1) reveals, that the same words as have been used in Article 243 U have been reproduced therein, namely, that the tenure of the municipality would
be “ . . .for five years from the date appointed for its first meeting and no longerâ€. Sub-Section (2) of Section 10-A reiterates the aforestated
constitutional mandate contained in Article 243 U, in as much as, it requires that the election process be completed before the expiry of the tenure of
the existing members of the Municipal Boards/ Nagar Palikas, in terms of sub-Section (1) of Section 10-A.
The contention of the learned counsel for the petitioner in connection with the validity of sub-Section (4) of Section 10-A is, that the same
authorizes an extension in the tenure of the members of the Municipal Boards/Nagar Palikas beyond the period of five years. We have perused sub-
Section (4) of Section 10-A (extracted hereinabove). It is not possible for us to accept the contention of the learned counsel for the petitioner. In our
considered view, sub-Section (4) of Section 10-A does not authorize the extension of the tenure of the members of the municipality beyond the term of
five years. In fact, a closer examination of the aforesaid provision reveals, that on the completion of the tenure of five years, the existing members
would be replaced, either by the District Magistrate or by a Gazetted Officer not below the rank of Deputy Collector. In sum and substance,
therefore, the members elected to the Municipal Boards/Nagar Palikas would not continue for a period in excess of their tenure of five years. Sub-
Section (4) of Section 10-A of the Uttar Pradesh Municipalities Act, 1916, in our view, furthers the mandate of Article 243U of the Constitution of
India, by preventing the existing members of the Municipal Boards/Nagar Palikas from continuing beyond the term for which there were elected.
Rather than authorizing the extension of the tenure of the office of the existing members of the municipality, sub-Section (4), in our view, the provision
curtails their tenure in consonance with the mandate of Article 243 U of the Constitution of India. Not only sub-Section (4) of Section 10-A, but also
sub-Sections (1) and (2) of Section 10-A of the Uttar Pradesh Municipalities Act, 1916 (as discussed in the foregoing paragraph) are drawn to give
effect to Article 243 U of the Constitution of India. We are, therefore, of the considered view, that sub-Section (4) of Section 10-A of the Uttar
Pradesh Municipalities Act, 1916 (as applicable to the State of Uttarakhand) does not violate Article 243 U of the Constitution of India.
For the reasons recorded hereinabove, the instant writ petition is disposed of as having been partly rendered infructuous (in so far as holding
election to the Municipal Boards/Nagar Palikas, are concerned). The challenge of the petitioner to the constitutional validity of sub-Section (4) of
Section 10- A of the Uttar Pradesh Municipalities Act, 1916 is, however, declined.â€
Not only the decision of the Division Bench of this Court is binding upon this Court but I am also respectfully not in agreement with the reasoning
given by the Division Bench of the Allahabad High Court in the case cited by the petitioners. The reasons are given below.
Different “subjects†are given in the Seventh Schedule under the three lists. Seventh Schedule is not the source of legislative power. The
source of legislative power is primarily in Article 246 of the Constitution of India. The three lists in the Seventh Schedule merely prescribe
“subjects†on which the Parliament or the State Legislatures (as the case might be) is competent to legislate. This is being stated as relying upon
the judgment of Allahabad High Court the learned Counsel for the petitioners Sri Jitendra Chaudhary would argue that in List II of the Seventh
Schedule there is no subject such as appointment of administrator in a Municipality and therefore the appointment of an Administrator for a
Municipality, is outside the legislative competence of State Legislature.
All the same, the source of legislative competence is given in Article 246 of the Constitution of India. Entry 5 of List II of the Seventh Schedule
reads as under:-
“5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement
authorities and other local authorities for the purpose of local self - government or village administration.â€
Â
A seminal decision on this has been rendered by a 7-Judges Constitution Bench of the Hon’ble Apex Court in the case of The India Cement
Ltd. & Others v. State of Tamil Nadu & Others, AIR 1990 SC 85, wherein the Hon’ble Apex Court has elaborated the concept as under:
“Certain rules have been evolved in this regard, and it is well settled now that the various entries in the three lists are not powers but fields of
legislation. The power to legislate is given by Art. 246 and other articles of the Constitution. See the observations of this Court in Calcutta Gas Co. v.
State of West Bengal, [1962] Suppl 3 SCR 1. The entries in the three lists of the Seventh Schedule to the Constitution are legislative heads or fields of
legislation. These demarcate the area over which appropriate legislature can operate. It is well settled that widest amplitude should be given to the
language of these entries, but some of these entries in different lists or in the same list may overlap and sometimes may also appear to be in direct
conflict with each other. Then, it is the duty of the court to find out its true intent and purpose and to examine a particular legislation in its pith and
substance to determine whether it fits in one or the other of the lists. See the observations of this Court in H.R. Banthia v. Union of India, [1970] 1
SCR 479 at p. 489: and Union of India v. H.S. Dillon, [1971] 2 SCC 779 at p.792.           The lists are designed to define and
delimit the respective areas of respective competence of the Union and the States. These neither impose any implied restriction on the legislative
power conferred by Article 246 of the Constitution, nor prescribe any duty to exercise that legislative power in any particular manner. Hence, the
language of the entries should be given widest scope, D.C. Rataria v. Bhuwalka Brothers Ltd., [1955] 1 SCR 1071, to find out which of the meanings
is fairly capable because these set up machinery of the Govt. (Sic.). Each general word should be held to extend to all ancillary or subsidiary matters
which can fairly and reasonably be comprehended in it. In interpreting an entry it would not be reasonable to import any limitation by comparing or
contrasting that entry with any other one in the same List. It is in this background that one has to examine the present controversy.â€
The argument of learned Counsel for the petitioners that there is no legislative competence to appoint an Administrator is totally misconceived and
must fail. Subject is given in Entry 5 of List II of the Seventh Schedule and what is to be seen is the “pith and substance†of the Act. The doctrine
of pith and substance is to be looked into whenever legislative competence of a statute is under challenge. The principle of pith and substance was
mentioned by the Hon’ble Apex Court in the above noted judgment (AIR 1990 SC 85). Additionally it may also be worthwhile to mention an
earlier Constitution Bench judgment on this, where the principle of pith and substance has been emphasized. The reference would be to a Constitution
Bench of Hon’ble Apex Court in case of State of Rajasthan v. G. Chawla & Another, AIR 1959 SC 544 (V 46 C 71), where a law enacted by
the State Legislature by which certain restrictions were imposed on the use of sound amplifier on the ground of public health was challenged on the
ground of legislative competence. The State Legislature had passed this law under Entry No. 6 of List II of the Seventh Schedule of the Constitution
of India which reads as under:
“6. Public health and sanitation; hospitals and dispensaries.â€
It was challenged on the ground that the legislation which restricted the use of sound amplifier actually comes under Entry No. 31 of the Union
List i.e. List I of the Seventh Schedule and only the Union of India can legislate under this entry. Entry No. 31 of the Union List reads as under:
“31. Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication.â€
The Constitution Bench was of the opinion that while examining the legislative competence what is to be seen is the “pith and substance†of
the concerned legislation. The pith and substance of the legislation there was “public healthâ€, which comes under Entry No. 6 of the State List i.e.
List II. That being the case, even if the legislation somehow moves in an area which is ancillary and forms part of another List i.e. List I, that would
not matter. Constitution Bench held that power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which
can be said to be reasonably included in the power given. The Constitution Bench further observed as under:
“The power to legislate in relation to public health includes the power to regulate the use of amplifiers as producers of loud noises when the right of
such user, by the disregard of the comfort of and obligation to others, emerges as a manifest nuisance to them.â€
Thereafter it said as under:
“The pith and substance of the impugned Act is the control of the use of amplifiers in the interests of health and also tranquility, and thus falls
substantially (if not wholly) within the powers conferred to preserve, regulate and promote them and does not so fall within the Entry in the Union List,
even though the amplifier, the use of which is regulated and controlled is an apparatus for broadcasting or communication.â€
In view of the above, the argument of the petitioner on legislative competence fails, as Entry No. 5 of List II of the Seventh Schedule covers the
field.
Section 10-A of the Uttar Pradesh Municipalities Act, 1916 as it is applicable in the State of Uttarakhand, in its pith and substance is well within
the sphere of the above subject.
I am also of the considered view that the prohibition under clause (1) of Article 243U of the Constitution of India is on the “term†or the
period of a Municipality. The term of a Municipality cannot be extended beyond five years and that is the limit set in the Constitution itself. Under
Section 10-A of the Municipalities Act, however, it is not a Municipality which is functioning. It is on the other hand an administrative officer who is
performing the duties of a Municipality. Moreover, this arrangement cannot go beyond a period of six months and can only be resorted in
extraordinary situations.
“Municipality†has been defined under Article 243P(e) of the Constitution of India as under:
“243P. Definitions.â€" In this Part, unless the context otherwise requires,-
(a) …..
(b) …..
(c) …..
(d) …..
 (e) “Municipality†means an institution of self government constituted under Article 243Qâ€
A Municipality is an institution of self-government constituted under Article 243Q of the Constitution of India. The term of a self-governing
institution, which would mean an elected body, cannot be extended beyond a period of five years. This is the mandate and this is the reasoning given
by the Division Bench of this Court, while rejecting the argument of the petitioner earlier, to the constitutional validity of sub-Section (4) of Section 10-
A of the Municipalities Act.
What has happened in the present case is not the extension of term of a Municipality, as a Municipality is an institution of self-government,
meaning thereby that it is an elected body. Under sub-section (4) of Section 10-A only if for unavoidable circumstances and in “public interestâ€,
when elections have not taken place to constitute the elected local body can an “administrator†be appointed, who is deemed in law to be only the
“Chairman/President or Committeeâ€, as the occasion may require. This arrangement has an outer life of six months.
In view of the above discussion, I find no force in these writ petitions. All the writ petitions are hereby dismissed. Interim order dated 01.6.2018
passed in WPMS No. 1285 of 2018 stands vacated.