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2001 DIGILAW 1130 (AP)

T. Sreenivasulu v. Government Of A. P.

2001-09-27

S.B.SINHA, V.V.S.RAO

body2001
S. B. SINHA, CJ, J. ( 1 ) VIRES of subsection (2) of Section 5 of the A. P. Municipalities Act, 1965, (for short the Act ), as amended by A. P. Act 17 of 1994, is challenged in these writ petitions on the ground that thereby, essentially the legislative function of the State Legislature has been delegated in favour of the Executive. ( 2 ) SRI A. Ramnarayana, the learned Counsel appearing on behalf of the petitioners has drawn our attention to Section 5 of the Act as it stood prior to amendment and submitted that by reason thereof the State Legislature itself has provided the mode and manner of composition of the Municipality, which is sought to be done away with by exercising the rule making power, which clearly goes to show that the provision is ultra vires, the Articles 14 and 63-U of the Constitution of India. The learned Counsel would further submit that the impugned provision is bad in law as neither the essential legislative function of a State Legislative can be delegated nor excessive delegation can be made. ( 3 ) DRAWING our attention to the provisions contained in Article 243-S of the Constitution of India, the learned Counsel submitted that composition of a Municipality is a matter, which is required to be determined by the State Legislature itself and not by the Executive. Such a legislative function, according to the learned Counsel, cannot be delegated in favour of the Executive, and in support of his contention, he placed strong reliance on the judgment of the apex Court in P. N. Kaushal v. Union of India, AIR 1978 SC 1456 . ( 4 ) THE learned Additional Advocate-General appearing on behalf of the State, on the other hand, would submit that the provisions contained in Part IX-A of the Constitution of India provide sufficient guidelines. He would submit that in terms of clause (2) of Article 243-R, it is for the Legislature of a State to provide for the matters specified therein, and those that are specified in clause (1) are not required to be provided for by way of legislation. He would submit that in terms of clause (2) of Article 243-R, it is for the Legislature of a State to provide for the matters specified therein, and those that are specified in clause (1) are not required to be provided for by way of legislation. ( 5 ) BEFORE we advert to the rival contentions advanced by the learned Counsel appearing on behalf of the parties, we may usefully quote the following observations from a recent judgment of this Court rendered in WA No. 1428 of 2001, dated 10-8-2001: the consideration of the issue requires a brief glance at the scheme of the Constitution in relation to municipalities. Part IX-A of the Constitution clothes the municipalities/ municipal corporations with constitutional robe. For effectually carrying out the scheme, the Legislature of the State, the Government of the State and SEC are me main constitutional functionaries recognised under Part IX-A of the Constitution. The State Legislature is assigned certain functions; for instance, under Articles 243r, 243s, 243t (1) and (6), 243u (1) (b), 243d, 243v, etc. The Government of the State and its officials are vested with the power under the Reservation Rules to specify by notification the number of seats reserved for ST/sc/bc and women. The Government is also required, when so requested by the SEC to make available such staff as may be necessary for discharging the functions conferred on the SEC in relation to conduct of elections of municipal bodies [articles 243za read with Article 243k (3)] ( 6 ) PARTS IX and IX-A were inserted in the Constitution by reason of Constitution (Seventy-third Amendment) Act, 1992 and Constitution (Seventy-fourth Amendment) Act, 1992 respectively, in order to bring gross root democracy at the level of Panchayats and Municipalities. ( 7 ) CLAUSE (e) of Article 243p defines "municipality" to mean an institution of self-government constituted under Article 243q. According to Article 243q, every State shall constitute a Nagar Panchayat for a transitional area, i. e. , an area in transition from a rural area to an urban area, a Municipal Council for a small urban area, and a Municipal Corporation for a larger urban area. According to Article 243q, every State shall constitute a Nagar Panchayat for a transitional area, i. e. , an area in transition from a rural area to an urban area, a Municipal Council for a small urban area, and a Municipal Corporation for a larger urban area. Clause (2) of Article 243q reads: in this article, "a transitional area", "a smaller urban area" or "a larger urban area" 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. ( 8 ) FROM a reading of the above, it becomes clear that various factors have been enumerated therein to specify as to what would constitute "a transitional area" "a small urban area" or "a larger urban area". ( 9 ) CLAUSE (1) of Article 243r provides that all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area, and for the said purpose each Municipality shall be divided into territorial constituencies known as "wards". In contrast to clause (1), clause (2) of Article 243r requires that the Legislature of a State may, by law, provide for matters enumerated therein. Articles 243s provides for constitution and composition of Ward Committees, which may consist of one or more wards, within the territorial area of a Municipality. It may be noted that a "ward Committee" is different from a "ward" inasmuch as a "ward Committee" is constituted with a cluster of "wards". ( 10 ) IN the aforementioned backdrop, we may now compare the provisions of subsection (2) of Section 5 of the Act, vis-a-vis the provisions of Section 5 thereof prior to amendment. It may be noted that a "ward Committee" is different from a "ward" inasmuch as a "ward Committee" is constituted with a cluster of "wards". ( 10 ) IN the aforementioned backdrop, we may now compare the provisions of subsection (2) of Section 5 of the Act, vis-a-vis the provisions of Section 5 thereof prior to amendment. ( 11 ) SECTION 5 of the Act prior to amendment read: constitution of Municipal Council : (1) There shall be constituted for each municipality a body of councilors to be called the municipal council having authority over the municipality and consisting of such number of councilors as may be notified in the Andhra Pradesh Gazette by the Government in accordance with the following table, excluding the ex-officio councilors specified in sub-section (2) municipalities with a population at the last census number of Councillors not less man 25,000 but not exceeding 30,000 20 exceeding 30,000 but not exceeding 40,000 24 exceeding 40,000 but not exceeding 50,000 28 exceeding 50,000 but not exceeding 1,00,000 32 exceeding 1,00,000 but not exceeding 2,00,000 36 exceeding 2,00,000 but not exceeding 3,00,000 44 exceeding 3,00,000 50 ( 12 ) SUB-SECTION (2) of Section 5 of the Act, as amended by Act 4 of 1993 and A. P. Act 17 of 1994 reads: constitution of Municipal Council: the Council shall consist of the following members, namely : (i) such number of elected members as may be notified from time to time by the Government in the Andhra Pradesh Gazette, in accordance with such principles as may be prescribed: provided that the number of members to be elected in respect of each Council existing at the commencement of the Andhra Pradesh Municipal Laws (Second Amendment) Act, 1994 shall be as it stood at such commencement until such number is revised by the Government in accordance with the principles prescribed. ( 13 ) WHAT is therefore left at the hands of the executive by reason of the rule making power as defined in Section 2 (28) of the said Act is merely the principles in terms whereof the number of members to be elected in respect of each council may be notified from time to time. ( 13 ) WHAT is therefore left at the hands of the executive by reason of the rule making power as defined in Section 2 (28) of the said Act is merely the principles in terms whereof the number of members to be elected in respect of each council may be notified from time to time. The proviso appended to the sub-section (2) of Section 5 stipulates that the number of members to be elected in respect of each council existing at the commencement of the Andhra Pradesh Municipal Laws (Second Amendment Act), 1994 shall be as it stood at such commencement until such number is revised by the Government in accordance with the principles prescribed. ( 14 ) RULE 4 of the Municipal Councils in the State - Fixation of Strength of Municipal Council - Rules framed and issued in G. O. Ms. No. 42, Municipal administration and Urban Development (Elecs. II) (M. A), dated 4-2-1995 reads: population as at last census Population not exceeding 40,000 Population exceeding 40,000 but not exceeding 1,00. 000 no. of elected members 21 The minimum number of elected members shall be 21 and for every 10,000 of the population above 40,000, there shall be one additional elected member. Population exceeding 1,00,000 but not exceeding 2,00,000 the minimum number of elected members shall be 27 and for every 15,000 of the population above 1,00,000 there shall be one additional elected member. Population exceeding 20,00,000 the minimum number of elected members shall be 22 and for every 20,000 of the population above 2,00,000 there shall be one additional elected member, so, however, the total number of elected members shall not exceed 45. ( 15 ) A bare perusal of the above table appended to Rule 4, would clearly indicate that there does not exist any difference at all between the unamended and amended Section 5 of the Act. ( 16 ) SRI Ramnarayana, the learned Counsel appearing on behalf of the petitioners, however, would suggest that although the present rule does not make any material difference, the matter should not be left at the hands of the executive as the same in future may be absurd. The submission of the learned Counsel cannot be accepted for reasons more than one. The submission of the learned Counsel cannot be accepted for reasons more than one. Firstly, the scheme and purport of Part IX-A of the Constitution of India, as referred to hereinbefore, would clearly suggests compartments, which are sub-divided and reserved for different bodies namely Legislature, Executive, Election Commission, parliament etc. The provisions of clause (2) of 243r, as noticed hereinbefore, do not indicate that the composition of a ward has to be done by way of legislation only. However, the Legislature of a State is not precluded from making any law in this regard having regard to its legislative competence as contained in List II, entry 5 of the VII Schedule to the Constitution of India. The State has done so. The matter as regards the composition of a ward vis-a-vis the population may be a matter of details. It may vary from time to time. So long as the executive in exercise of its rule making power does not contravene the provisions of the Act as also the Constitution of India, the same cannot be held to be ultra vires. Secondly, the law is well settled that a rule made validly becomes part of the Act. In any event, as noticed hereinbefore the purpose and object of the principles which are required to be adopted for the transitory period, as provided for in terms of the proviso appended to sub-section (2) of Section 5 of the Act have been retained by the aforementioned Rules. ( 17 ) THE learned Counsel for the petitioners in support of his submissions relied upon the decision of the apex Court in P. N. Kaushal. In P. N. Kaushal, the apex Court was considering the constitutional validity of Rule 37 (9) of the Punjab Excise Liquor Licence Rules, 1956, as amended in Punjab in 1978. ( 18 ) THE apex Court held in para 57 of the said judgement observed:. . . Counsel argued that the power to make rules fixing the days and hours for closing or keeping open liquor shops was wholly unguided. Three invalidatory vices flowed from this single flaw viz. (i) excessive delegation of legislative power, (ii) unreasonable restriction on the fundamental right to trade in intoxicants under Article 19 (l) (g), and (iii) arbitrary power to pick and choose, inherently violative of Article 14. Three invalidatory vices flowed from this single flaw viz. (i) excessive delegation of legislative power, (ii) unreasonable restriction on the fundamental right to trade in intoxicants under Article 19 (l) (g), and (iii) arbitrary power to pick and choose, inherently violative of Article 14. ( 19 ) NO exception can be taken to the aforementioned proposition of law and the principles laid down. However, as indicated by us, the matter relating to composition of wards having not been made a prerequisite to be specified by the Legislature in terms of Article 243r. the decision of the apex Court in P. N. Kaushal, cannot be said to have any application to the facts and circumstances of the present case. In the instant case, the legislative policy has been laid down. Only the details within the framework of the policy are to be laid down by the rule making powers. Further, in the instant case, amendment has been carried out in view of the Constitutional scheme. In Kishan Prakash Shartma v. Union of India, 2001 SCC (Lands) 805, the apex Court in para 18 laid down the law as under: so far as the delegated legislation is concerned, the case law will throw light as to the manner in which the same has to be understood and in each given case we have to understand the scope of the provisions and no uniform rule could be laid down. The legislatures in India have been held to possess wide power of legislation subject, however, to certain limitations such as the legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. The Legislature cannot delegate uncanalised and uncontrolled power. The Legislature must set the limits of the power delegated by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. Thus the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the Legislature. Thus the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the Legislature. The Legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the frame work of the policy. When the constitution entrusts the duty of law making to Parliament and the Legislatures of States, it impliedly prohibits them to throw away that responsibility on the shoulders of some other authority. An area of compromise is struck that Parliament cannot work in detail the various requirements of giving effect to the enactment and, therefore, that area will be left to be fitted in by the delegatee. Thus, the question is whether any particular legislation suffers from excessive delegation and in ascertaining the same, the scheme, the provisions of the statute, including its preamble, and the facts and circumstances in the background of which the statute is enacted, the history of the legislation, the complexity of the problems which a modern State has to face, will have to be taken note of and if, on a liberal construction given to a statute, a legislative policy and guidelines for its execution are brought out, the statute, even if skeletal, will be upheld to be valid but this rule of liberal construction should not be carried by the Court to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on the executive. These very tests were adopted in Ajoy Kumar Banerjee v. Union of India, (1984) 3 SCC 228, also to examine whether there is excessive delegation in framing schemes and reading the preamble, the scheme and the other provisions of the enactment taking note of the general economic situation in the country, the authorities concerned had to frame appropriate schemes. Therefore, it is not open to the petitioners to contend that there is excessive delegation in relation to the enactment to frame schemes. ( 20 ) FOR the reasons aforementioned, we find no merit in the writ petitions, and they are accordingly dismissed. No costs.