DHARAMSHALA PANCHYATI RAOD, P.S.-KOTWALI, P.O.- GAYA, TOWN AND DISTRICT-GAYA Vs. STATE OF BIHAR THROUGH THE SECRETARY, URBAN DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, NEW

JUDGEMENT

(1.) This writ petition, labelled as a public interest litigation was filed on 4th July, 1998 questioning the legal authority of Administrator, Gaya Municipal Corporation to impose any tax on and after 20.10.1993 and on that ground the subsequent revision of municipal taxes on the basis of 1993 Rules framed by the Sate Government, was also impugned. As the list of petitioners shows, the present lis is espoused by two residents of Gaya, one of Patna and by Central Bihar Chamber of Commerce. On 19.4.1999, the matter was heard by a learned single Judge as a purely municipal corporation matter and interim order was passed to the effect that until further orders, the realization of tax in question at the revised rate may not be implemented but the petitioners must go on paying tax at the pre-revised rate. On 2.8.1999, the attention of learned single Judge was drawn to paragraph 3 of the writ petition wherein the petitioners had claimed that the matter be treated as public interest litigation. In that view of the matter, the writ petition was ordered to be listed before a Division Bench. On 4.4.2001, the Division Bench noticed the issue relating to imposition of taxes and the contention on behalf of the petitioners that there should be no taxation without democratic representation in the municipal corporation of Gaya. For raising that plea, petitioners relied up on Article 265 of the Constitution which embodies a fundamental principle of democratic governance that no tax shall be levied or collected except by authority of law. The grievance of the petitioners was specific that since the establishment of the Gaya Municipal Corporation through a notification dated 18.11.1983, there had been no election held to elect representatives of the people to the municipal corporation resulting in running of the corporation through an Administrator. The Division Bench widened the issue through subsequent orders so as to remind the State Government of its obligation to hold elections for various municipal bodies and corporation throughout the State. In that process, it took notice that Administrators were functioning in the municipal bodies on the basis of 'transitory provision' of the Patna Municipal Corporation Act 1951 and such provisions needed to be reviewed in the light of 73rd and 74th Amendments to the Constitution of India leading to insertion of Part IX and Part IX A with effect from 1.6.1993. This Court noticed the inaction on the part of the State Government and its authorities in complying with the letter and spirit of the constitutional provisions relating to municipalities, particularly in Article 243U. The Division Bench also noticed provisions in Article 243ZF which permit continuance of existing laws and municipalities inconsistent with the provisions of Part IX of the Constitution only till amendment or repeal by a competent Legislature or other competent authority or until the expiration of one year, whichever is earlier.

(2.) The subsequent orders passed in this case reveal the slow and steady progress made towards holding elections for the municipal bodies in the State of Bihar ultimately took place in the year 2002. This was on account of categorical and clear stand of the Court that rule by Administrator cannot be permitted indefinitely so as to negate grassroot democracy through elected municipal bodies. In that sense, with elections in 2002, the public interest espoused through this writ petition was served. But the issue of legality and validity of the revised rate of municipal taxes remained to be decided. On 30.9.2002, nobody appeared for either of the parties, perhaps, due to strike by the lawyers as indicated in the order itself. The case was admitted for hearing. It has now been heard in detail.

(3.) On behalf of the petitioners Mr. Ram Balak Mahto, Senior Advocate has placed reliance upon the provisions in Article 243ZF of the Constitution to submit that since its enforcement the Administrator lost the legal right to continue as Administrator of the Gaya Municipality because the transitory provision in Section 545 of the Patna Municipal Corporation Act, 1951 (hereinafter referred to as 'the Act') itself lost its validity on account of being inconsistent with provisions in Part IX A of the Constitution of India. For easy reference, Article 243U and Article 243ZF and Section 545 of the Act are quoted herein below: