This article is written by Shoronya Banerjee of Amity Law School, Kolkata. This article contains a detailed overview of Uttar Pradesh Municipality Act,1916.
Table of Contents
Introduction
With the hope of decentralization of powers establishing a pluralistic political state by systemizing the interests and needs of the people in regional and provincial forums, and with the Constitution introducing two distinct governments at the centre and each state, the 73rd and 74th constitutional amendments were passed authorizing the formation of the panchayats and municipalities as the chosen local governments. But even before independence at the trial of the then British government, Municipality Acts were formulated as well, which post-independence were amended and brought in synchronization with the Constitution of India. But initially, the Charter Act of 1833 had brought in the concept of administrative powers being conferred on the Governor-General-in Council, an official body. He could possibly formulate, revoke, amend and alter laws and guidelines made for all the people. Here, with regard to this Act as well the powers are delegated and conferred upon the committees and the people which in turn also takes the form of statutory instrument and bye-laws. The system is regulated by enactments passed from time to time by State legislatures as the Municipal Acts are state-specific where the state legislature has the authority to decide upon the structure, functions and powers that could be allocated to that particular government. As put forth, the provisions of the State municipal Acts are looked over and supervised by the Urban local governments. Municipalities also have the power of articulating and devising local bye-laws as per provisions of municipal administration. Therefore the role of the Municipal Acts turns out to be that of guiding officials and representatives of the Local Governments with regard to administration.
Uttar Pradesh’s history of urban local government turned out to be a prime reason behind the enactment of legislations and superintendence over the functioning of the urban local institutions. Along with several acts being enacted right from 1856 to over the years, the U.P. Town Area Act was enacted in 1914 and the U. P. Municipalities Act published under Section 81 of the Government of India Act, 1915 came into effect in 1916.
Definition and Declaration of municipalities as per the Municipality Act, 1916
This Act considers the definition of ‘municipality’ to be synonymous to that as laid by the Constitution of India under Article 243-P clause (e) which defines it as ‘an institution of self-government constituted under Article 243 Q’. But this is not the only definition borrowed from the Constitution, few of the other definitions are ‘Municipal Area’ under section 9A which is defined under Article 243-P clause (d) as ‘territorial area of a municipality…’, Then again ‘Panchayat’ as per section 13A is similar to that as defined under 243-P clause (f) which highlights it to be that as constituted under Article 243-B.
The governor as per limits and specifications of the Act notifies the limits of the transitional area, smaller urban area and larger urban area as under clause (2) of Article 243-Q puts forth the declaration of the transitional , smaller urban and larger urban areas under section 3. The governor by a successive notification can decide upon the exclusion or inclusion of certain areas under the specified transitional, smaller urban and larger urban areas. Section 5 of this Act issues such areas to be subjected to all notifications, orders, directions, bye-laws etc, made under this Act or any other subsequent enactment in force at the time As section 3 A of the Act extends with reference to Article 243-Q clause(1) in accordance with Part IX-A of the Constitution, that every transitional area is to be known as the Nagar Panchayat, every smaller urban area to be known as the Municipal Council and larger urban area as Municipal corporation. For instance, as seen in the case of ‘Rakam Singh v. State of U.P. & Others(2015) [1]’, it was laid that “a transitional area”, “a smaller urban area” or “a larger urban area” indicated towards areas of which the Governor having regard of the population, revenue initiated for local administration, the state of employment in non-agricultural activities, and other such factors, as deemed fit by him, specified by public notification for the purposes of this Part.
According to section 3A clause (3) sub-clause (b), whichever notifies area the committee established under section 388 or constituted by the Town Area Committee with regard to the Uttar Pradesh Town Area Act, 1914, was deemed to be known as the Nagar Panchayat which stood to be immediately before or from the commencement of the Act until the first constitution of the Nagar Panchayat under it.
Composition of municipality
The composition of municipality is specified under section 9 of the Act which first of all highlights the consistent role of the president as the chairman of both, the Nagar Panchayat and Municipal Council. The elected members in case of the Nagar Panchayat cannot be less than 10 and not more than 24, while the Municipal Council cannot have members less than 25 and not more than 55. The specifications regarding the members are followed according to the Official Gazette. It mentions about the ex-officio members consisting of all the members of the House of the People and the State Legislative Assembly where all the constituencies are represented, adjusting the whole or part of the municipal area. Ex-officio members also indicate towards all members of the Council of States and the State Legislative Council, already registered as electors within the municipal area. Also as per the Official Gazette’s notification, the State government nominates from certain people having special knowledge and experience in municipal administration, members for the Nagar Panchayat and Municipal Council. But in the case of the former it should not be less than 2 and not more than 3. Taking into consideration the Municipal Council, it shouldn’t be more than 5.
Position of Women, Scheduled caste, Scheduled Tribes and the Other Backward Classes regarding Reservation
The Scheduled Castes, Scheduled Tribes and Other Backward Classes have seats reserved in the municipality which have to be of the same proportion to the total number of seats which is to be filled by direct election as per the ratio of the population of Scheduled Castes in the Municipal area or the Scheduled Tribes in the Municipal area to the total population of that area. Here the seats are allotted by rotation to different wards in a municipality according to the prescribed rules.
The women belonging to the Scheduled Castes, the Scheduled Tribes or the Backward Classes are entitled to not less than one-third of the seats reserved under Section 9A sub-section (3). Further, in clause (4) it is also mentioned that not less than one-third of the total number of seats in the municipality in addition to the number of seats reserved under sub-section (3) is designated to the women. Such seats too may be allotted by rotation to different wards of a municipality in such order as rendered by the prescribed rules.
Duties and discretionary function of municipalities
Taking a look at the duties of a municipality as under section 7, it has to make provisions for:
- Lighting public street and places;
- Watering public streets and places;
- Cleaning public sheets, places and drains;
- Removing noxious vegetation;
- Working towards diminishing all public nuisances;
- Regulation of offensive, dangerous or obnoxious trades and practices;
- Discarding every obstruction and projection in streets or public places on the basis of public safety, health or convenience;
- Securing or removing dangerous buildings or places;
- Acquiring, maintaining, changing, and regulating places for the disposal of the dead;
- Building, modifying and developing the public streets, drainage system, sewerage works, urinals, markets, culverts etc;
- Restoring unhealthy localities and planting trees on roads and public places. Also providing water supply for domestic and commercial purposes;
- Provision of supplying pure and wholesome water where the health of the inhabitants is questionable and endangered because of the insufficient and unwholesomeness of the existing supply of water, guarding it from water pollution as used for human consumption. It also maintains any source of water supply along with public wells, keeping it fit for human consumption;
- Registering births and deaths;
- Maintaining a system of public vaccination;
- Establishing, sustaining and supporting public hospitals, dispensaries, and also providing for public medical relief;
- Construction and maintenance of parking lots, bus stops and public conveniences;
- Promoting urban forestry and ecological aspects and protection of the environment;
- Protecting interests of weaker sections of society including the handicapped and mentally retarded;
- Constructing and maintaining cattle pounds and preventing cruelty to animals;
- Improvement and upgradation of slum areas and promoting urban poverty alleviation;
- Establishing and maintaining primary schools; and
- Rendering assistance in extinguishing fires and protecting life and property when fires occur.
Altogether these are some of the specified functions which are seen to be covering most aspects of proper administration of a place. It not only mentions provisions for constructing and establishing public roads, grounds, cattle pounds, schools, forests and so on, it also focuses upon the importance of protecting, improving, maintaining and upgrading them as well.
Section 8 further lays its discretionary functions:
1) A municipality can make provision within its limits and with authorization beyond it as well, for:
- Building new public streets. They could acquire land for constructing buildings to be adjacent to such streets;
- The establishment of libraries, museums, rescue homes for women, halls, offices, dharamshalas, dairies, wells, tanks etc;
- Having progressive educational objectives;
- Keeping account of census, and sanctioning rewards for information essential for securing correct and vital statistics; and
- Promoting or guaranteeing tramways, railroads and other means of travelling along with electric or gas lighting or electric or gas power works.
These are some of the functions laid by the Act which is followed by a sub-section 2 which further allows a municipality to make provisions for allowing extension beyond the municipality’s limits under the benefits of any municipal undertaking given that no provisions could be made to extend benefits of such an undertaking for supplying water to particular local areas consisting of the whole or a part of a cantonment without the previous sanction of the Central government.
Elections
Keeping aside the provisions under Section 31-A, the state government along with the State Election Commission could appoint dates for general election under the superintendence and control of the State Election Commission. To be a member of the municipality a person has to qualify as an elector for any of the wards constituted by the municipality. He/ she has to be twenty-one years old. This Act contains several grounds of disqualification laid under section 13D out of which few are:
- Servant of a local authority;
- Did hold an office under the Central or any of the State governments and had been dismissed for corruption or treachery unless a period of six years had elapsed since such a dismissal;
- The person could also be disqualified for being debarred from legal practice by an order from prescribed authority;
- Undischarged insolvent; or
- Convicted of a punishable offence under Section 171-E or Section 17-F of the Indian Penal Code, 1860.
Section 13 E provider for the ‘Right to Vote.’ No person except as provided by this Act, who is for the time being entered in the electoral roll of any ward shall be entitled to vote in that ward. If a person is subjected to any of the disqualifications then he/she cannot vote in the elections at any ward. No person is allowed to vote in more than one ward and if this occurs then that vote is considered to be void. Also no person shall at any election vote in the same ward more than once. Nothing in this subsection shall apply to a person subject to preventive detention under any law for that time being.
Taxation
Taxes to be imposed subject to the provisions of Article 285 of the Constitution are mentioned under Section 128 sub-section 1 of this Act. Namely, taxes on the annual value of buildings or lands or both, a water tax on the annual value of buildings or lands or both; a drainage tax on the annual value of buildings leviable on such buildings as are situated within a distance, to be fixed by rules in this behalf for each municipality from the nearest sewer line; a conservancy tax for the collection, removal and disposal of polluted matter from urinals and cesspools. It was observed in the case of ‘Gappumal Kanhaiya Lal vs Commissioner Of Income-Tax(1944)[2]’, the tax referred to in the case as house-tax was as per Section 128(1)(i), U.P. Municipalities Act, 1916, where it is mentioned as a tax on the annual value of buildings or lands or of both. The water-tax is imposed under the same section, where it is described as a water-tax on the annual value of buildings or of lands or of both. It is clear, therefore, these were statutory charges upon the property of the assessee to secure the payment of house and water-tax by it. According to the tribunal these charges were inchoate and contingent because as they might or might not have risen, if it did, it would arise out of the assessee’s own default [3].
Process of execution against property outside the municipal area
If the defaulter does not have sufficient movable property inside the premises of the municipal area then, the District Magistrate on the notice of the municipality may issue his warrant to an officer of his Court, for the distress and sale of any movable property belonging to the defaulter within the jurisdiction of the Magistrate, or within the jurisdiction of any other Magistrate exercising jurisdiction in Uttar Pradesh. As per sub-section (2), if in the case under clause (b) of sub-section (1), the other Magistrate shall approve a warrant so issued and get it executed, and any amount recovered to be remitted to the Magistrate issuing the warrant, who shall remit the same to the Municipality. Further section 173A talks of recovery of taxes as arrears of land revenue.
Outline the provisions related to the sanitation and the prevention of diseases
By section 267 a municipality can close, remove, alter, cleanse, disinfect or put in good order any latrine, urinal, water-closet, drain, cesspool, dust-bin or other receptacle for filth, sullage-water, rubbish or refuse pertaining to such land or building, or to remove or alter any door or trap-door of any such latrine, urinal or water-closet which opens on to a street or drain; also to shut off any latrine, urinal or water-closet provided for the building or land from the view of persons passing by or dwelling in the neighbourhood.
By section 276 a penalty has been imposed for discharging or allowing water of a sink, sewer or cesspool or any polluted matter to flow, drain or flood, a public street or place, or into a sewer to drain without the permission in writing or infringing prescribed conditions, the owner or occupier of that land from where it flows is liable upon conviction, to a fine which may extend to two hundred and fifty rupees. Under section 283, by notice the owner or occupier of a land can be asked to remove vegetation from their land which could be harmful, injurious and offensive to the neighborhood.
Section 279 talks of penalty for failure to give information of cholera, small-pox, etc, especially for a medical practitioner who in course of such practice becoming aware of the existence of cholera, plague, small-pox or other infectious disease dwelling in a municipal area other than a public hospital, or by default of such medical practitioner, being the owner of such dwelling, of any such infectious disease if fails to give or gives false information to the competent authority, shall be liable upon conviction to a fine which may extend to fifty rupees. While section 281 prescribes a penalty for whoever while infected with an infectious disorder, offers for food, drink medicine or drug for human consumption. If that person wilfully comes in contact with any such article which is exposed for sale and if he/she takes any part in the business of washing or carrying soiled clothes, shall be liable if convicted to pay a fine which may extend to fifty rupees. Along with these provisions there are several others to promote sanitation and prevent diseases
Rent charge
When a person has a rent due on account for a land entrusted to management of a municipality may require the Collector to retrieve such rent more like it was considered to be dues of land revenue as the Collector may deem it to be fit. Section 293 allows the municipality to charge fees fixed by bye-laws, agreement and public auction for the use of an immovable property endowed to the management of the municipality which would also include any public place that it allowed to be used. Section 294 also allows the municipality to charge a fee fixed by a bye-law for any type of requiring permission for a grant by or under the Act. With the prior assent of the State government, a municipality can also impose a fee for use of a public place to which everyone has an access and also from an aspect of which it has to provide with sanitation and other facilities to the public under section 293 A.
In the case of ‘Mohd. Yasin v. Town Area Committee, Jalalabad (1952)[4]’, the respondent had framed bye-laws which conferred all rights to charge a commission on the petitioner, a wholesale vegetables and fruit seller’s sale within the limits of the town. The Committee, respondent, by auction, gave the contract of collecting commission to Bhishamber, who had never dealt with vegetables and fruits. The bye-laws which required the wholesale dealers to pay the fee to the contractor who had a monopoly would result in prohibition of business. The petitioner challenged this action of the respondent. The Apex Court in the judgment had held that under Article 19(1)(g), citizens had the right to carry on any occupation and business. It was held that if the license fee could not be justified on the basis of a valid law then no one could question the reasonableness of it. The Apex Court also held that Section 293 and Section 298 of the U.P. Municipality Act, 1916 did not confer any power on the Town Area Committee for making bye-laws authorizing the charging of fees other than that used for or vested in Town Area Committee’s management. The decision was for the petitioner and Mohd. Yasin was entitled to succeed.
Provisions of making bye-laws
Section 298 signifies the power of the municipality under special resolution if required by the state government to make bye-laws applicable to the whole or part of the area to maintain health and safety of the inhabitants and also to look after the municipal administration. This Act lays two lists of bye-laws with regards to broader heads like for example buildings, markets, slaughter houses, public safety etc. As specified under section 298 sub-section (2), the municipality may have the power of making bye-laws mentioned under list I and could further exercise the power and make bye-laws as mentioned under list II as well.
Breach of bye-laws made with the sanction of the state government shall incur a punishment of paying a fine which may extend to one thousand rupees. Continuation of breach may add up to a fine extending to twenty five rupees for everyday after the first conviction. Bye-laws are also subjected to the prerequisite of bye-laws being made after previous publication, put forth by section 301. Section 301 A equips the state government with the power of modifying or repealing bye-laws, wholly or partly subjected to the condition of the state government having to highlight their reasons for such an opinion and communicating it to the municipality and giving them reasonable time to come up with representation with regard to this as deemed fit by them.
In the case of ‘Doctors’ Jan Kalyan Society, … v. State Of U.P. And Others(1999)[5]’, the petitioners were for an association of several Allopathic, Homoeopathic, Ayurvedic and Unani doctors. It had filed a writ petition challenging the bye-laws formulated by the Nagar Palika Parishad of Mirzapur under the Uttar Pradesh Municipalities Act, 1916. The Bye-laws provided license fees on Nursing Homes, Private Clinics, Pathology Centres, Dental Clinics, X-Ray Clinics and Maternity wards. The state government on 27th September, 1994, promulgated a direction of increasing license fee and also imposing license fee where it hasn’t been imposed on the matters mentioned therein. A similar direction was issued on 23rd December, 1994 and a reminder was sent on 21st March,1995. The administrator passed a special resolution on 28th August, 1995 to frame the bye-laws. The proposed bye-laws were published in The Newspaper “Jai Prakash” on 25th September, 1995. It divulged all the recommended bye-laws and also issued a provision of objections being invited within fifteen days. But no objections were received. The impugned bye-laws were questioned to be whether beyond the power of the Nagar Palika 298. The prospect of an alternate remedy was looked into and whether section 94(6) could apply in this case.
Giving significance to section 298(1) of the Act, it was held that the bye-laws were framed as per the order of the state government. The debate between the change of language between ‘may’ to ‘shall’ under section 298 was held to be indicating the use of the word ‘shall’ in a mandatory position. It was seen that the Nagar Palika was accountable for framing bye-laws’ and therefore in its meeting on 27th February, 1996, could not reject it. In this situation even if section 94 (6) of the Act is applied, then also it cannot be said that some illegality was committed. The Nagar Palika was not authorized to reject the bye-laws. It was observed that the resolution approving the bye-laws couldn’t be quashed. The writ jurisdiction was discretionary and could not exercise power to restore an illegal situation. The writ petition was dismissed with costs to the Nagar Palika.
In the case of ‘Kanhaiyya Lal And Others vs State Of U.P. & Ors. (2010)[5]’, the petitioners, small businessmen and traders of Nagar Panchayat Raya in Mathura had challenged the constitutionality of bye-laws through their writ petition. They contended that the population of their Nagar Panchayat was not more than 30,000. the businesses in general merchandise, building materials, provisional stores, cloths etc were being carried out. The Tahsildar on 16th June, had issued recovery of license fee as arrears of land revenue against the petitioners. The Petitioners’ contended that this procedure prescribed under the U.P. Municipalities Act, 1916 for framing of bye-laws hadn’t been followed; it had not been put to effect and no license was issued to any traders. The demand for license fee and their rates were considered to be illegal with no relation to trade and calling of the persons.
The decision here was in support of the petitioner. Thus, Tahsildar’s writ petition for recovery of license fee as arrears of land revenue had to be set aside. Although the impugned bye-laws dated 13th August, 2001 were held to be constitutional and the prayer on behalf of the petitioner to quash it was refused. The writ petition partly was allowed to quash the petition issued by the Tahsildar for recovery of the license fee. It was held to be open for the municipal board to recover the license fee in accordance with the procedure as prescribed under Sections 166-173 of the Act.
Conclusion
Through years, subordinate legislation has proved to be an extremely crucial part of lessening the burden of the legislature and facilitating a well planned and efficiently functioning welfare state. Democratic decentralization has allowed the augmentation of local autonomy by delegating functions, powers and authority from the central government to the regional councils and local authorities.
During the colonial era whereas Lord Mayo’s resolution till today is held to be the first step of the British government towards initiating a system of local self-government. Lord Ripon’s resolution of 1882 is truly the Magna Carta of local self-government in India. It prescribed representatives of the Urban Municipal local bodies of non-bureaucrat members having the strength of two for a period of two years. The resolution also recommended a two-tier local government system. Ripon’s resolution led to several provinces enacting the two-tier local body between 1883 and 1885 period.
Uttar Pradesh over the years has seen several Acts being enacted and along with time every Act has been amended to suit the flow of the current changing scenarios. The U.P Nagar Palika (Municipalities) Act, 1916 had been renamed as U.P. Nagar Palika Act, 1916 whereas the U.P. Town Area Act, 1914 got repealed. With the U.P. Municipal Corporation Act, 1959, U.P. Nagar Nigam Act, 1959. The Uttar Pradesh Municipalities (Amendment) Act, 1964 and so on, every Act came up with new provisions or amended the older ones to suit and cope up with changing times to effectuate better working of the urban local self-government. For instance, the U.P. Planning and Development Act, 1973 introduced the setting up of Development authorities whereas, the U.P. Water Supply and Sewer System Act, 1975, created Jal Sansthans. The Uttar Pradesh (Amendment) Act, 1964 further laid a detailed study of the Act substituting the definitions with detailed study to cover any sort of loopholes and provide efficient administration. The Uttar Pradesh Local Self Government Laws (Amendment) Act, 1994 has considerable importance as it was renamed the U.P. Nagar Mahapalika Act, 1959 and U.P. Nagar Palika Municipalities Act, 1916 to U.P. Nagar Nigam Act, 1959 and U.P. Nagar Palika Act, 1916 respectively, it made elections necessary, substituted 5 categories of urban local bodies to just 3, gave the government the power to dissolve a municipality for misconduct, introduced reservations and gave a considerable position to women[6].
References
- https://indiankanoon.org/doc/167478225/
- AIR 1945 All 147
- https://indiankanoon.org/doc/1305194/
- 1952 AIR 115
- 1999 (3) AWC 2328
- https://indiankanoon.org/doc/102117419/
- Capital City Lucknow and Cultural City Allahabad: Understanding their Origin and Civic Life in Historic Frame,
- https://shodhganga.inflibnet.ac.in/bitstream/10603/186549/6/09_chapter%204.pdf.pdf, Last seen on 29. 04. 20.
- Origin and Development of Decentralisation Process: An Overview, https://shodhganga.inflibnet.ac.in/bitstream/10603/102193/3/12_chapter4.pdf, . Last seen on 29. 04. 20.
- The Uttar Pradesh Municipalities Act, 1916, No. 2, Acts of Parliament, 1916 (India).
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