1. Since common issues are involved in these three writ petitions, a common order is being passed.
In these three writ petitions, Sub-section (ii) of Section 1 of the Jharkhand Municipal (Amendment) Act, 2006 and Sub-section (ii) of Section 1 of the Ranchi Municipal Corporation (Amendment) Act, 2006 are being challenged by the petitioners seeking for a declaration that Jharkhand Municipal Act, 2000 and Jharkhand Municipal (Amendment) Act, 2006 cannot be extended by the State to the Ranchi District including the schedule area as the Parliament alone can extend the provisions of Part IX A of the Constitution of India to the scheduled areas through legislation as contemplated under Article 243ZC of the Constitution of India.
2. Mr. M.S. Anwar, learned Senior Counsel appearing for the petitioners would urge the following contentions:
(i) Part IX of the Constitution of India relates to the Municipalities;
(ii) Under Article 243ZC, the provisions of Part IX A of the Constitution shall not apply to the Scheduled Areas and Tribal Areas and the Parliament alone can extend the provisions of that part to the Scheduled Area and Tribal Areas.
(iii) As per this Article, the State Legislature does not have the power to legislate and extend the provisions relating to Municipalities in the Scheduled Area;
(iv) Admittedly, no law has been made by the Parliament in exercise of the power under Article 243ZC of the Part IXA of the Constitution of India;
(v) Even in para 5(1) of the Vth Schedule, the Governor are being vested with the power to direct any particular Act of the Parliament or an Act of the Legislature shall not apply to the Scheduled areas or shall apply to the scheduled areas in the State subject to the such exceptions and modifications as may be specified by notification. However, in view of the specific prohibition contained in Article 243ZC, the Governor has no power even under Para 5 of the Vth Schedule since Article 243ZC prevails over the Vth Schedule.
(vi) In other words, Part IXA, being introduced later in point of time, indicates the last intention of the Constitutional power of the Union Parliament which will prevail over the para 5(1) of the Vth Schedule.
(vii) The analogous provisions like Article 243ZC is contained in Article 243M in Part IX of the Constitution. This part relates to the Panchayats. Article 243M specifically provides that it is only the Parliament which can extend the provisions of the Act in relation to the Panchayat to the Scheduled Areas and not the State.
(viii) When Bihar Panchayat Raj Act was enacted extending the provisions of Part IX to the Scheduled Areas, the Division Bench of Patna High Court by a decision as reported in 1996 (1) BLJR 425 held that in the light of Article 243M the said Act would not apply to the Scheduled Areas of the unified Bihar. This decision was rendered by the Division Bench of Patna High Court on the strength of decision of Andhra Pradesh High Court reported in AIR 1995 AP 274.
(ix) The same reasoning would apply to the present case also. The State Government, by virtue of the Jharkhand Municipal Act and Ranchi Municipal Corporation (Amendment) Act 2006 cannot extend to the Scheduled Areas which is prohibited under Article 243ZC.
(x) Further Article 243ZF allows the continuance of the existing laws relating to Municipality only till the existing Act is amended or until the expiration of one year from the commencement. This period has already lapsed. Therefore, declaration is sought to the effect that the State Act introducing the provisions extending to the Scheduled Area is not valid.
3. In reply to the above said contention, Mr. Sumeet Gadodia, representing the State would urge the following submissions:
(i) For answering the issue raised before this Court, Article 243ZC and Article 243ZF are required to be read together.
(ii) In Article 243ZC the provisions of Part IXA of the Constitution of India were not made applicable to the scheduled areas.
(iii) Article 243ZF provides for the continuance of the existing laws relating to Municipalities which were introduced and enforced even before the introduction of 74th Amendment Act.
(iv) From the conjoint reading of both the Articles, it is clear that though the Act cannot be introduced by the State Government after introduction of Part IXA of the Constitution of India through the 74th Amendment Act which came into force in the year 1993, i.e., with effect from 01.06.1993, the existing laws relating to State Municipalities covering Scheduled Areas prior to the commencement of the 74th Amendment were allowed to operate by virtue of Article 243ZF when those existing laws cannot be said to be inconsistent with the provisions of Part IXA of the Constitution.
(v) In this case even before the 74th Amendment of the Constitution, the Bihar Municipal Act, 1922 which was introduced in the entire erstwhile State of Bihar including the areas which now fall within the State of Jharkhand covering the Scheduled Areas was existing.
(vi) After the creation of the State of Jharkhand, the said Bihar Municipal Act 1922 was adopted by the State of Jharkhand in exercise of the powers under section 85 of the re-organisation act through notification dated 14.02.2002.
(vii) In view of the existence of the above Act, covering scheduled areas, prior to the introduction of Part IXA of the Constitution, the Jharkhand Municipal Act, 2000 or Ranchi Municipal Corporation Act 2006 which are introduced only for increasing the penalty and to rationalize the upper limit of reservation by the original Act, cannot be said' to be inconsistent with the provisions of the Constitution of India, and, as such, the prayer of the petitioners in challenging the Section 1(ii) of the Jharkhand Municipal Act or Ranchi Municipal Corporation (Amendment) Act, 2006 is misconceived.
(viii) Further Vth Schedule empowers the Governor to direct any particular Act of the Parliament or Legislature of the State may or may not apply to the scheduled area.
(ix) The provisions of the Bihar Municipal Act, 1922, which was adopted and amended by the State of Jharkhand were made applicable even before the 74th Amendment to the Constitution of India.
(x) Admittedly, the Governor has not made any amendment or passed any direction that the provisions of the said Act will not be applicable in the scheduled areas of the State of Jharkhand. Therefore, the earlier Municipal Act, 1922 which is applicable in the scheduled area of State of Jharkhand, which are existing even prior to the 74th Amendment of the Constitution, will continue to apply in the scheduled area, In view of the fact that the same is not inconsistent with any of the provisions of the Constitution of India. The decision cited by the counsel for the petitioner in AIR 1995 AP 274 and 1996 (1) BLJR 425 would not apply to the facts of the present case as those decisions have not dealt with article 243zc and article 243zf of the constitution. Therefore, the prayer of the petitioners is to be rejected.
In elaboration of these submissions, counsel for both the parties argued at length. We have carefully considered the same.
4. Having considered the submissions made by the counsel for the parties and having gone through the relevant records as well as the provisions under the Acts and the relevant articles of the constitution, we are of the view that the submissions made by the counsel for the petitioners seeking for the declaration questioning the vires of the provisions of the Jharkhand Municipal Amendment Act, 2006 and Ranchi Municipal Corporation Amendment Act, 2006 cannot be accepted and the same is liable to be rejected on the following reasons:
(i) The main ground on the basis of which the learned Senior Counsel for the petitioners has based his arguments is that Article 243ZC provides that the provisions relating to Part IX A of the Constitution relating to Municipalities can be extended only by the Parliament to the Scheduled Areas and the State cannot do that in view of the prohibition contained in the said Article and, therefore, the Act passed by the State, which extends the provisions of Municipality to Scheduled Areas is unconstitutional and beyond its legislative competence; This argument looks on the face of it as unacceptable in the light of the wordings contained in Article 243ZC and Article 243ZF. The conjoint reading of both the Articles would give the answer to the effect that the above said submissions made by the counsel for the petitioners has no substance. Let us quote Article 243ZC:
Article 243ZC. Part not to apply to certain areas-
(1) Nothing in this Part shall apply to the Scheduled Areas referred to in Clause (1), and the tribal areas referred to in Clause (2), of Article 244.
(2) Nothing in this part shall be construed to affect the functions and powers of the Darjeeling Gorkha Hill Council constituted under any law for the time being in force for the hill areas of the district of Darjeeling in the State of West Bengal.
(3) Notwithstanding anything in this Constitution, Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the Tribal Areas referred to in Clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purposes of Article 368.
(ii) It is clearly provided in this article that this will not apply to Scheduled Areas and the Tribal Areas and the Parliament alone can extend the provisions of this part to the Scheduled Areas and Tribal Areas.
(iii) Now, let us quote Article 243ZF:
Article 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 Assembly of that State, or in the case of a State having a Legislative Council, by each House of the Legislature of that State.
(iv) This Article 243ZF provides for the continuance of the existing laws relating to Municipality, which were introduced and enforced even before the introduction of the 74th Amendment of the Constitution of India, which were inconsistent with the provisions in Part IXA for a specified period.
(v) The reading of both the articles would make it obvious that the provisions relating to the Part IX A cannot be extended to Scheduled Area, but the existing laws relating to State Municipalities which were in existence prior to the commencement of 74th Amendment in the Constitution of India, which were not consistent, were allowed to operate for a specified period by virtue of Article 243ZF.
(vi) Thus, it is clear that the proviso to Article 243ZF clearly provides existing laws relating to Municipalities which were available before the commencement of the 74th Amendment will continue to be in force until it is amended or until expiration of one year from such commencement whichever is earlier, but this condition would be for existing laws which are inconsistent with the provisions of this part. This means even though existing laws, which are inconsistent with the provisions of this part, are permitted to continue until it is amended or repealed by the legislature or after the expiration of one year.
(vii) But, this condition relating to continuance for the specific period of existing laws would apply only to the existing laws which are inconsistent with the provisions of this part and not to the existing law which are consistent with the provisions of this part.
(viii) In other words, there is no specific bar for the continuance of the existing laws if they are not inconsistent with the provisions of this part, i.e., if they are consistent with the provisions of this part.
(ix) It is pointed out by the counsel for the respondents that even before the 74th Amendment was introduced, the Bihar Municipal Act, 1922 came into force. This Act was applicable in the entire erstwhile State of Bihar including the areas, which now fell within the State of Jharkhand.
(x) Let us quote Bihar Municipal Act, 1922, which prescribes the short, title and commencement of the said Act:
1. Short title, and commencement - (1) This Act may be called the Bihar Municipal Act, 1922.
(2) It extends to the whole of the State of Bihar.
(3) It shall come into force on such date as the State Government may by notification direct.
(4) Notwithstanding any thing in Sub-section (2), it shall not take effect in any cantonment or part of a cantonment without the consent of Central Government previously obtained.
(xi) There is no dispute in the fact that after creation of the State of Jharkhand, the Bihar Municipal Act, 1922 was adopted by the State of Jharkhand in exercise of the powers under Section 85 of the Re-Organisation Act, 2000 vide Notification issued under memo No. 2755 dated 14.11.2002.
(xii) In other words, the provisions relating to Municipality were in existence even prior to the 74th Amendment, namely, Part IXA of the Constitution of India and the same is applicable in the State of Jharkhand including the districts identified as Scheduled Areas.
(xiii) As indicated above, neither in the writ applications nor in the oral arguments, anything was pointed out by the counsel for the petitioners that any provision of Bihar Municipal Act, 1922 (now Jharkhand Municipal Act, 2000) or Ranchi Municipal Corporation Act is inconsistent with any of the provisions of Part IXA of the Constitution of India. In such a situation, we are to uphold the argument of the counsel for the respondents to the effect that earlier Municipal Act shall continue to operate in the Scheduled Areas though Part IXA is not applicable to Scheduled Areas since the said Act was introduced even before commencement of Part IXA which is consistent with that part.
(xiv) It is also noted that from perusal of the preamble of the Amendment Act introduced by the State, that the said amendment was made only for increasing the penalty and to rationalize the upper limit of reservation. There is no other addition to the earlier Act, which is inconsistent with the provisions of Part IX A.
(xv) Similarly, from perusal of Ranchi Municipal Corporation Act, 2006 it would be obvious that the said amendment was made with a view to increase the penalty in order to rationalize it with the devaluation of Indian currency over the period of time since enactment of Municipal Act and also to rationalize and/or fix the upper limit of reservation to the extent of 50 per cent for Ward Commissioners of Scheduled Caste, Scheduled Tribe and Backward Classes. The said amendment Act which increases the penalty and/or prescribes the limit of reservation is in no manner can be said to be inconsistent with the provisions of the Constitution of India.
(xvi) Part B Section 5 of the 5th Schedule empowers the Governor to direct that any particular Act of Parliament or the Legislature of the State may apply or may not apply to the Scheduled Areas.
(xvii) In the 5th Schedule of the Constitution of India, special provisions have been made with regard to the administration and control of Scheduled Areas and Scheduled Tribes. In Part B of Section 5 of the 5th Schedule of the Constitution it gives power to the Governor of a particular State to direct that any particular Act of Parliament or of the Legislature of the State may apply or may not apply to a Scheduled Area. The said provisions are quoted hereinbelow for ready reference:
5. Law applicable to Scheduled Areas. - (1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Ana or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect.
(2) The Governor may make regulations for the peace and good government of any area in the State which is for the time being a Scheduled Area.
In particular and without prejudice to the generality of the foregoing power, such regulations may -
(a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;
(b) regulate the allotment of land to members of the Scheduled Tribes in such area;
(c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area.
(3) In making any such regulation as is referred to in sub-paragraph (2) of this paragraph, the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question.
(4) All regulations made under this paragraph shall be submitted forthwith to the President and, until assented to by him, shall have no effect.
(5) No regulation shall be made under this paragraph unless the Governor making the regulation has, in the case where there is a Tribes Advisory Council for the State, consulted such Council.
(xviii) Under this provision, it is clear that notwithstanding anything in Constitution, the Governor by public notification may direct that any Act of Parliament or Legislature of the State shall not apply to the Scheduled Area. Even though these powers are conferred to the Governor, the same have not been exercised by the Governor to direct that this Act of 1922 not to be applied for the Scheduled Areas.
(xix) As indicated above, the provisions of Bihar Municipal Act, 1922, at adopted and amended by the State of Jharkhand were made applicable to the entire State of Jharkhand even prior to the 74th Amendment of the Constitution of India. Only the Governor of Jharkhand being vested with the powers under 5th Schedule is empowered to restrain the applicability of the said Act from any other Scheduled Area, who did not chose to pass any orders or give any direction that the provisions of the said Act, namely Bihar Municipal Act, 1922 will not be applicable to the Scheduled Areas of the State of Jharkhand.
(xx) Learned Counsel for the petitioners would mainly rely upon the decision of Division Bench of Patna High Court reported in 1996 (1) BLJR 425 and AIR 1995 AP 274 and contend that the finding given by the said judgment was while dealing with the analogous Article, i.e., Article 243M of the Constitution of India which deals with the Constitution of Panchayats, that the Act cannot be passed by the State Government in respect of Panchayats would apply to the present case also.
(xxi) These two judgments, in our view, would not apply to the present facts of this writ petitions. In both the cases a new Act was enacted by the State Legislature extending the provisions of Part IX relating to Panchayats in the respective States. The said Acts were new Acts which were formulated in terms of Part IX of the Constitution of India for extending the provisions for the entire State.
(xxii) It is in that background the said judgment was delivered by the Andhra Pradesh High Court and Patna High Court holding that the State Government cannot enact a law extending its application to the entire State in violation of Article 243M of the Constitution.
(xxiii) Moreover these judgments have not dealt with the existing laws which are allowed to be continued, which were introduced prior to the 74th amendment. Further, the provisions relating to Article 243M which are part materia to Article 243ZF which deals with the aspect of continuance of existing laws have not been taken into consideration. Therefore, those judgments would not be of any help to the petitioners.
(xxiv) The learned senior counsel for the petitioners would refer to various authorities to show that the 74th Amendment is a later one and, as such, the same would prevail. We need not refer to those decisions as that is not the relevant issue before this Court, since in this case, as indicated above, Governor has not chosen to exercise those powers either this way or that way.
5. In view of the various reasonings given in earlier paragraphs, we do not find any merit in these writ petitions. Hence these writ petitions are dismissed as not sustainable. There is no order as to costs.
Amareshwar Sahay, J.
6. I agree.
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