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Judgment
Ravi S. Dhavan, C.J.—On 19 April 2001 the court had an occasion to deal with certain matters relating to the Patna Municipal Corporation (CWJC No. 1233 of 1997). The issue in that petition was a claim of employees seeking time bound promotion. The claim was being tossed between the Corporation and the State Government. The Patna Municipal Corporation is run by an Administrator. It is not functioning as local self government which if it had been these issues local to an institution which ought to self govern itself with elected representatives, could be resolved by local government. Today, in the matter under consideration the court has before it issues raised by the Central Bihar Chamber of Commerce and others, questioning the continued functioning of an Administrator over the Gaya Municipal Corporation. The issue is not so much as about collection of the local taxes or that rateable taxes are not to be paid. Primarily, the Bihar Chamber of Commerce questions the Administrator in running the municipal corporation sans local representatives. In no uncertain terms it is contended that this indefinite period of rule by an Administrator over a city corporation cannot go on and the citizens of Gaya are entitled to run the corporation through elected representatives so that it has a true personality of local self government.
On behalf of the Administrator, his functioning is being justified under law, by relying on what is known as "Transitory Provisions" of the Patna Municipal Corporation Act, 1951. The court will revert to this aspect later. One aspect needs to be noticed and the situation seems more blatant after the Constitution of India was amended by the 73rd & 74th amendments in 1992 and the Constitution saw the insertion of the chapters on the Panchayats and the Municipalities as Chapter IX & IXA. The Gaya Municipal Corporation owes it origins to the year 1983. The law under which the Gaya Municipal Corporation receives its incorporation is by borrowing the provisions of the Patna Municipal Corporation Act, 1951. There did not seem to be any ingenuinity or originality to give local government to Gaya as chapter, verse and to the letter the Patna Municipal Corporation Act, 1951 was simply made applicable to the urban limits of Gaya. Thus, Gaya as a municipality or a corporation opened its innings with an Administrator in 1983. This in itself is a very sad reflection on the erosion of local self government in Bihar.
When the Constitution was amended with insertion of chapters on Panchayats and Municipalities, no time should have been lost and within six months of the amendments taking effect local bodies should have started functioning with full attributes of self government. As a generality in a democracy local self government is the normalcy of the situation; running local bodies without elected representatives and in their place, an Administrator, is an abnormality.
The Administrator of the Gaya Municipal Corporation seems to justify his existence under the Transitory Provisions spelled out in Section 545 of the Patna Municipal Corporation Act. Rather, than reproduce the argument on the law on which he justifies to act without local representatives is best seen side by side with the provisions of the Constitution. The Court is re- producing the "Transitory Provisions" on the left hand side and as opposed to it the provision of the Constitution of India, on the duration of Municipalities etc. as spelled out under Article 243 U. 545. Transitory Prov- 2430. Duration of Munisions.-(1) The State incapacities, etc.- (1) Government may, by Every Municipality, notifications, appoint for less sooner dissolved such period not exceeds under any law for the ding six months [from time being in force, the date of the shall continue for five commencement of this years from the date ap Act as may be specified pointed for its first meein the notification, ating and no longer: person to be called the Provided that a Administrator to Municipality shall be exercise, perform orgiven a reasonable opp discharge the powers, rotundity of being heard duties and functions before its dissolution, which are conferred or (2) No amendment of imposed by or under any law for the time this Act on the Cor- being in force shall poration the Standing have the effect of Committee and the causing dissolution of a Chief Executive Officer, Municipality at any level and the Administrator which is functioning shall be deemed to be immediately before such the Corporation for all amendment,, till the or any of the purposes expiration of its duration of this Act: specified in clause (1). Provided that the period (3) An election to of appointment of the constitute a Municipality Administrator specified shall be completed- in the notification under (a) before the expiry of this sub-section may be,its duration specified in extended by the State clause (1): Government by a like (b)before the expiration notification for a period of a Period of six not exceeding three months from the date of months] [at a time but its dissolution: in any case not Provided that where the exceeding [thirty remainder of the period months] in all for which the dissolved reasons to be specified Municipality would have in the notification. continued is less than.six months, it shall not (2) The Administrator or be necessary to hold any other officer or any election under this officers appointed by clause for constituting rules made under sec-the Municipality for such ton 540 or other-wise, period by the State Government (4) A Municipality in this behalf constituted upon the shall prepare a register dissolution of a of electors and shall Municipality before the hold an election of cou-expiration of its duration cellars in accordance shall continue only for with the provisions of the remainder of the this Act in the rules period for which the made there under. dissolved Municipality(3) The Administrator would have continued shall cease to hold under clause (1) had it office on the day the not been so dissolved, notification u/s 15 is published in the official Gazette and shall from that date be deemed to be the Chief Executive Officer until a Chief Executive Officer is appointed u/s 50. (4) All municipal officers and servants in the employment of the Administrator at the commencement of :his Act shall be officers and servants employed by the Corporation under this Act as if they had been appointed under Sections 54, 55 and 56. (5) Notwithstanding anything contained in this Act or any rule or bye-law made there under, the conditions of service, pay and allowances existing in respect of all permanent officers and servants of Patna City Municipality and the Patna Administration Committee on the day immediately before the commencement of this Act shall be deemed to be their existing conditions of service, pay and allowance under this Act on the day this Act comes into force.
A unique argument has been addressed before the Court that Article 243 U could perhaps apply only to a situation where there was a local body with elected representatives whose dissolution has taken place upon the expiry of their tenure of five years, and thereafter the intervening period should not be more than six months. Thus, it is contended, an election will be held within six months. But if there is no elected body, to begin with, this part and chapter of the Constitution of India does not apply.
The argument apparently boomerangs on the Administrator on the same theme. Of the elected body not available to function as local self government, which the Municipality is, the amendments to the Constitution took effect and oblige the State of Bihar to arrange for elections within six months. This has not been done.
The Administrators to a municipality are as much transitory as the Transitory Provisions, and were not meant to stay. Thus, their continued existence cannot be justified. Further, even the Transitory Provisions which permit an Administrator to functions can at best make him a bird of passage.. For this Article 243ZF is reproduced below needs to be seen. 243ZF. Continuance of existing laws and Municipalities.-Notwithstanding anything in this Part, 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 this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier: Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Council, by each House of the Legislature of that State.
So the Court has before it a situation where the Gaya Municipal Corporation is running under a borrowed legislation, made for the Patna Municipal Corporation known as Patna Municipal Corporation Act, 1951. This was made applicable to the urban agglomeration of Gaya and from day one an Administrator was put incharge of the Corporation at Gaya, called the Gaya Municipal Corporation.
In so far as the court is concerned the question of ignoring the provisions of the Constitution of India, as the Administrator would like to and has had it submitted, does not arise. The justification to continue without local self government cannot be suffered. The time has come that the bureaucracy must give way to local self government. The rule of municipalities by Administrators must cease.
In this matter, which is one of concern, the court made a request to the Advocate General, Bihar, to appear.
Learned Advocate General, Bihar, on appearance made a statement, to the effect, that it would not be appropriate for him to make an extempore off the cuff statement without having a discussion with the State Government first. This apart the Court agrees with the Advocate General, and it would only be fair, that he receives a reasonable time to confer with the State Government. But the court did indicate to the Advocate General that on an affidavit it has been intimated to the Court, today, that the State Government is contemplating holding elections for Municipalities after November 2001. This period apparently has been stretched too much and too far. The court will record the fairness of the Advocate General in stating before the Court that elsewhere before the Court in other matters it is on record that the State Government has expressed the need to restore local self government as a measure of urgency.
At the request of the Advocate General this matter is adjourned for a fortnight.
In the meantime, the Court expects that the State Government will cause a statement to be made without any delay that an election to Municipalities will follow elections to the Panchayats.
In these cases certain members of the Bar brought to the notice of the Court the following matters, which relate to elections to local bodies. The cases indicated are L.P.A. No. 809 of 1996 and CWJC No. 943 of 1999. These matters will be listed before the Court along with the records of L.P.A. No. 809 of 1996 and CWJC No. 943 of 1999.