JUDGMENT A.H. Saikia, J. 1. Whether with the incorporation of Part-IXA, especially Article 243ZF, in the Constitution of India by virtue of the Constitution (Seventy-Fourth Amendment) Act, 1992 (for short, 'the Amendment') given effect from 1.6.93 providing for continuance of the existing laws relating to Municipalities unless those are inconsistent with any provision of the Amendment, the proviso to Section 171(1) of the Assam Municipal Act, 1956 (for short, 'the Act') wherein Development Authority, a creation of the Assam Town and Country Planning Act, 1959, has been empowered solely to grant sanction for erection of building within the municipal area prevailing upon the Municipal Board constituted under the Act, shall cease to operate automatically on the expiration of one year of time frame as stipulated in provision of law mentioned hereinabove from the date of commencement of the Amendment i.e. from 30.5.94, is the fundamental question raised in the instant writ petition. 2. It would be expedient to notice Section 171(1) of the Act which reads as follows: Prohibition of building without sanction. (1) No person shall erect, materially alter, or re-erect or commence to erect, materially alter, or re-erect or commence to erect, materially alter or re-erect any building without sanction of the Board: Provided that in an area in respect of which an authority has been constituted under the Assam Town and Country Planning Act, 1959, the power of giving sanction to erect, materially alter or re-erect or commence to erect, materially alter or re-erect any building shall vest in that authority and the sanction given by that authority shall be deemed to be a sanction of the Board. 3. The Petitioner, the Silchar Development Authority (for short, 'the Authority') has challenged the notification dated 27.12.1999 issued by the Chairman, Silchar Municipal Board (for short, 'the Board') (Annexure-B to the writ petition) on the ground that this Notification cannot be sustained in terms of the Amendment by which a new provision as Part-IX a under Chapter VI of the Constitution of India has been inserted with the heading of 'the municipalities' incorporating Articles from 243P to 243SG, as the provisions of the Amendment especially Articles 243W and 243ZF was misinterpreted and misconstrued by the Board. 4. For the sake of convenience and ready reference, the impugned Notification may be reproduced as under: ...Notice The Constitution (Seventy-fourth Amendment) Act, 1992 has been duly enacted. 4. For the sake of convenience and ready reference, the impugned Notification may be reproduced as under: ...Notice The Constitution (Seventy-fourth Amendment) Act, 1992 has been duly enacted. As per twelfth schedule of this amendment certain rights have been conferred on the municipalities and ward committees of which the power of granting permission for purchase and sale of land and creation (sic) of building within the municipal are is worth mentioning. Through the 74th Constitution Amendment Act, Part IX-A of the Constitution came into force from 1st July, 1993 and the old law would remain in force for one year from that date and thereafter the function would be governed by this constitution Amendment Act. Although the Silchar Municipal Board is authorized to function as per this Amendment after the expiry of year's period yet inspite of repeated requests from the Silchar Municipal Board to the Assam Government, no law having been enacted the Silchar Municipal Board on 8.12.1999 requested the Assam Government to make proper legislation in exercise of power under Article243W of the constitution of India. Despite that no steps have been taken by the Government of Assam. The Silchar Municipal Board is of the opinion that as per Article 243-ZF of the 74th Constitution Amendment Act in the Silchar, Municipal Area, it has sole power to grant permission for purchase and sale of land and for erection of building. Thus it has been unanimously decided in the meeting of the Silchar Municipal Board held on 22.12.99 that from 1.1.2000 the permission for sale and purchase of land and for erection of building would be granted by Silchar Municipal Board. It may be mentioned hat it any authority or person does not obtain the said permission in this regard the sale of land and creation of building could be treated illegal under this Constitution Amendment Act. The Silchar Municipal Board is the only authority to grant permission for purchase and sale of land and erection of building in the municipal area as the 74th Constitution Amendment Act. Sd/- Chairman Silchar Municipal Board Date: 27.12.99 5. The Silchar Municipal Board is the only authority to grant permission for purchase and sale of land and erection of building in the municipal area as the 74th Constitution Amendment Act. Sd/- Chairman Silchar Municipal Board Date: 27.12.99 5. From the tone and tenor of the language of the Notification above mentioned, it would explicitly show that the Board opined that in terms of Article 243W of the Constitution of India, immediately after the commencement of the Amendment, all the powers of granting permission for sale and purchase of land as well as construction of building within the Municipal area had been vested with the Board and as such the proviso to Section 171(1) of the Act was inconsistent with Article 243W and accordingly the proviso to Section 171 of the Act should cease to operate as an existing law, being inconsistent with Article 243W after the expiry of one year from the date of commencement of the Amendment and the same became automatically non-cast in terms of Article 243ZF of the Constitution of India. 6. For better appreciation and understanding of the question involved herein, both the provisions of Articles 243W and 243ZF of the Constitution may be quoted as under: 243W: Powers, authority and responsibilities of Municipalities, etc. Subject to the provisions of the 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 implementations 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 Twelfth Schedule. 243 ZF: 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. 7. Heard Mr. B.C. Das, learned Sr. Counsel assisted by Mr. D. Mazumdar and Mr. R.C. Pal, learned Counsel for the Petitioner and Mr. S. Dutta, learned Counsel appearing for the Respondents the Board. 8. Impugning the Notification dated 27.12.99 as noted above, Mr. Das, learned Sr. Counsel, has submitted that Article 243W is itself an enabling clause endowing powers to the State Legislature to make law giving more powers, functions and responsibilities to the Municipalities to achieve the mandate of the Amendment. His stand is that this provision of Article 243W is not a substantive law so as to attract the proviso to Section 171(1) of the Act to make itself inconsistent with Article243W. 9. Drawing attention of this Court to Article 243ZF, as mentioned above, Mr. Das has contended that the expression "inconsistent with the provisions of this Part" appearing in this Article will be only effective against any law enacted as substantive in nature under this Part i.e. Part IX-A. In the case at hand there is no law as such framed under the Amendment to make the proviso of Section 171(1)inoperative by way of inconsistency with this Part. 10. Referring to the Assam Panchayat Act, 1994 (for short, 'the Act of 1994') by way of an example, Mr. Das has submitted that this piece of legislation was enacted by the State Legislature only after commencement of Constitution (Seventy-third Amendment) Act, 1992 commencing from 1.6.93 by which Part-IX was incorporated under the heading of 'the panchayats' by exercising enabling clause contained in Article 243G--which is pari materia with Article 243ZW. Das has submitted that this piece of legislation was enacted by the State Legislature only after commencement of Constitution (Seventy-third Amendment) Act, 1992 commencing from 1.6.93 by which Part-IX was incorporated under the heading of 'the panchayats' by exercising enabling clause contained in Article 243G--which is pari materia with Article 243ZW. According to him, though there was an earlier law to be known the Assam Panchayati Raj Act, 1989, the same was repealed by the Act of 1994 and in the legislative wisdom, the Act of 1994 was enacted by regulating and consolidating the entire law relating to the Panchayats under the provision of Article 243G by which the State legislature has endowed the Panchayats, by enacting the Act of 1994, with such powers, authority and responsibilities that may be necessary to enable them to function as institution of self-government. It is contended that despite such endowment under Article 243W, till date the State Legislature has not enacted any such law in its consolidated form empowering the Municipalities with more powers as envisaged under the provision of Article 243W. 11. Learned Sr. Counsel, inviting attention of this Court to the Gauhati Municipal Corporation Act, 1971 (for short 'the GMC Act') has contended that in the light of Article 243W, the said Act was amended by the State Legislature in the year 1994 calling it to be the Gauhati Municipal (Amendment Act) 1994. In the said amendment, the State legislature visibly incorporated some items mentioned in Twelfth Schedule in terms of Article 243W(b) and those are, according to Mr. Das, urban planning including town planning, regulation of land used and construction of buildings, planning for economic and social development, slum improvement and upgradation and urban poverty allevation, i.e. items No. 1, 2, 3, 10 and 11 respectively therein. 12. In the light of such amendment in the GMC Act, it is submitted that in order to implement the intention of the legislature envisaged under Article 243W, there must be a substantive law to be incorporated by the State Legislature and unless a law is made or incorporated or framed, the question of inconsistency appearing in Article 243ZF of the Constitution cannot be raised. In the case in hand, since there is no such law enacted under Article 243W, the proviso of Section 171(1) of the Act cannot be allowed to cease, after the expiry of one year period as mentioned under Article 243ZFautomatically. This proviso in question must appear in such a manner against any law enacted under Part-IXA that the same is inconsistent with the said provision of law. Significantly this proviso of Section 171(1) of the Act is not inconsistent with any provision of this Part and accordingly the impugned, order is wholly unauthorized, bad in law and is not permitted under the provision of Article243ZF. 13. In support of his submission, Mr. Das relying on a decision of the Apex Court in a case of Shanti G. Patel and Ors. v. State of Maharashtra and Ors. reported in AIR 2006 SC 1104 , has urged that unless a law is enacted by the State under the enabling clause of Article243W, the existing provision of Section 171 of the Act would continue to operate in its field and the same can not be struck down by applying Article 243ZF. 14. In paragraph 9 of the above cited case, the Apex Court observed as under: 9. Article 243W whereupon great emphasis has been laid by the Petitioners herein provides for an enabling clause so as to enable the State to endow by law the Municipality with such powers and authority, as may be necessary, to enable the State to make by law by endowing the municipalities to function as institutions of self-government which may contain provision of the devolution of powers and responsibilities subject to the conditions which may be specified in the Twelfth Schedule. The Twelfth Schedule of the Constitution referable to Article 243W, inter alia, provides for Urban planning including town planning regulation of land-use and construction of buildings. Thus, Article 243Wcontains merely an enabling provision and it does not mean that the State is obliged to provide for such a statue. The Constitution (Seventy-fourth Amendment) Act, in any event, does not envisage that the existing laws would become non-operative or a vacuum would be created in the matter of enforcement of existing laws relating to urban planning and/or regulation of land use and construction of buildings etc. 15. Learned Sr. The Constitution (Seventy-fourth Amendment) Act, in any event, does not envisage that the existing laws would become non-operative or a vacuum would be created in the matter of enforcement of existing laws relating to urban planning and/or regulation of land use and construction of buildings etc. 15. Learned Sr. Counsel has submitted that the Amendment has not intended to make the existing law inoperative since the Apex Court has observed that Article 243W is only an enabling provision and it is the duty of the State Legislature to provide any such statute. According to him, until and unless any statute is created by the State Legislature, the existing law would continue to operate. If the State Legislature in its wisdom perceives that any provision, for example provision of law under Section 171 of the Act in the instant case is required to be withdrawn from the statute book, it can make such law for such purpose. It is not the case herein and hence this proviso of Section 171(1)of the Act cannot be allowed to cease automatically by virtue of expiation of one year time frame stipulated under Article 243ZF. 16. Per contra, supporting the impugned order, Mr. Dutta, learned Counsel for the Board has contended that since the Part-IX A, on being incorporated by the Amendment, provides all the powers and responsibilities to the Municipalities in the form of institutions of self-government, the Board has rightly acted upon by passing the impugned Notification taking away the power of the Authority under the proviso to Section 171(1) in term of Articles 243W and 243ZF of the Constitution. 17. His emphatic argument is that no law by way of separate enactment is necessary to be enacted by the State Legislature due to the fact that the existing law i.e. the Act which is in force has detailed all the functions, powers and responsibilities of the Municipality Board. Since the proviso of Section171(1) of the Act is in direct conflict with this Part IXA after the Amendment especially Article 243ZF of the Constitution, no separate statute, inspite of request from the Board to the State Government, has been legislated in this context as per Article 243W and hence after expiry of one year from the date of commencement of the Amendment, the proviso shall be deemed to be automatically inoperative. That being so, the Board has rightly and justifiably directed the Authority not to interfere with their working by the impugned Notification. 18. The extensive arguments advanced by the learned Counsel for the rival parties have been considered carefully. Also perused the materials available on record including the pleadings exchanged by and between the contesting parties. 19. As has already been noticed, the language of Article 243W is clear and unambiguous. It envisages only an enabling clause endowing the State Legislature to make law introducing and vesting more powers, responsibilities and functions to the Municipalities. It cannot be said to be a substantive law. It is also affirmed by the Apex Court in Shanti G. Patel's case (supra) holding that Article 243Wcontains only an enabling clause. 20. Now coming to Article 243ZF, an ordinary and plain reading of the said provision would go to show that this mandate of the constitution will be applicable in case of any existing laws which are in force and if such law is inconsistent or is not in conformity with the provisions of Part IXA, there shall be two options to make it inoperative after the date of commencement of the amended provision i.e. 1.6.93; namely (i) the State Legislature makes such law so as to amend or repeal that part of the provision of law in the said existing law which is being inconsistent with Part-IX A and/or (ii) the provision of that particular existing law ceases to operate to the extent of its inconsistency from the expiry of one year time frame from the date of commencement of the Amendment provision which came into force on 1.6.93 i.e. on 31.5.94. 21. Situated thus, it can be unhesitatingly said that in order to make an existing law inoperative, the same must be inconsistent with any provision of law but substantive in nature under Part-IXA. Non-operation of the existing law, as the proviso to Section 171(1) of the Act in the present case, is not automatic. One must show the existing provision is inconsistent with any provision of this Part. On an organic reading of the entire provision of Part IX A from Article 243P to 243ZG, this Court finds no such law to attract the proviso of Section 171(1) of the Act with the inconsistency. 22. Though emphasis has been placed by Mr. One must show the existing provision is inconsistent with any provision of this Part. On an organic reading of the entire provision of Part IX A from Article 243P to 243ZG, this Court finds no such law to attract the proviso of Section 171(1) of the Act with the inconsistency. 22. Though emphasis has been placed by Mr. Dutta that this proviso is in direct conflict with 243W, this Court does not find that Article 243W gives any specific law so as to be in conflict with the proviso to Section 171(1) of the Act. How can a provision of law be taken away from the statute book without the intervention of the Legislature? The provision to Section 171(1) of the Act with the proviso in question thereto has been enacted by the State Legislature in its own wisdom and in a similar manner the provision of Section 13 has also been incorporated in the Town and Country Planning Act, 1959. If the submission of Mr. Dutta, for the sake of argument, is to be accepted, then both these provisions should go from the Statute Book though those have been enacted by the Legislature with a definite intention to give more powers to both the authorities created under both these enactments and taking way of all such power by Part IXA of the Constitution is not the purport and intent of the Amendment. 23. The aim and object of having the Amendment is to entrust the Municipalities with such powers and authority to enable them to function as institutions of self-government by authorizing the State Legislature by making law to endow all such powers authority and responsibilities upon the Municipalities. In the light of Apex Court decision in Shanti G. Patel's case (supra), it is safely opined that the Amendment does not prescribe any mode or manner to take way such existing enacted provision from the Statute book. 24. In the light of Apex Court decision in Shanti G. Patel's case (supra), it is safely opined that the Amendment does not prescribe any mode or manner to take way such existing enacted provision from the Statute book. 24. Considering all the facts and circumstances of the case in its entirety and also upon hearing the learned Counsel for the parties, this Court approves the submissions canvassed on behalf of the Authority and accordingly this Court is of the view that until and unless any law is enacted or framed by the State legislature, this proviso to Section 171(1) of the Act cannot be allowed to make itself inoperative and there is no inconsistency of this particular clause with any provision of law under Part-IXA. 25. Pertinent it to mention herein that the existing law in so far as it is inconsistent with the provision of this Part IXA can be made operative if the such proviso to the extent of inconsistency is amended or a repealed by the State Legislature, for instance, from perusal of the provision of Section 15 of the Act, it appears that by Amendment of Assam Act No. III, 1997, the following proviso to Clause (ix) of Section 15 has been inserted: Provided that no person shall be disqualified on the ground that he is less than 25 years of age if he has attained the age of 21 years. 26. This provision has been enacted exactly in terms of provision of Article 243V of the Constitution as the said provision has been prescribed as a substantive law in the said Article. Had there been any such specific provision of law substantive in nature contemplated in Part-IX A and the existing law, being not in consonance with such provision of Part IX A, then only the question of inconsistency of the existing law with the Amendment would have arisen. 27. For the foregoing reasons, observations and discussions, this Court is of the view that the impugned Notification issued by the Board is itself inconsistent with and contrary to the provisions of law envisaged under Articles 243W and 243ZF of the Constitution of India. Accordingly the same stands quashed and set aside. 28. In the result, writ petition stands allowed. However, there shall be no order as to costs. Petition allowed