Twelfth Schedule of Constitution of India | Article 243W Municipal Powers

Legal Summary:

The Constitution's Twelfth Schedule, one of most important part enabling specific 'Roles and Responsibilities' of the urban local bodies, primarily the municipalities, in the Constitution Part IXA, amended by Amendment 74th in the Constitution. This act mainly deals with constitutionally empowering the municipal governments with self-governance and decentralization of urban local government.

Scope of the Twelth Schedule:

Schedule 12 consists of 18 items that should be given due consideration for efficient governance of cities and towns, which include urban planning, regulation of land use and development of towns, water supply, sanitation, public health and sanitation, roads, fire services, urban forestry, development of slums, poverty alleviation in urban areas, civic amenities, cultural development, and slaughter houses.

Constitutional Position and Significance:

It’s the constitutional basis for municipalities to work as self-governing entities. This is in consonance with Art. 243W and 243S which provide for transfer of powers, authority and responsibilities from the State to the local bodies. This constitutionalizing aims at promoting democratic decentralization, local engagement and accountable urban governance in the context of rapid urbanization that has occurred since the 74th Amendment.

Opeating Model:

The Constitution provides for the constitution of the municipalities as per Art. 243Q, elections to be held as per Art. 243ZA and reservations be made in terms of Arts 243T and 243U. Generally, states use municipal laws, rules, bye-laws and executive notifications as instruments for devolution of Twelfth Schedule matters. Wherefore the legal consequences of each function depend upon the particular municipal system of the State.

Implications for Law and Policy

The Schedule recognizes the need for strong legal frameworks at the state level in order to implement its subjects. It also emphasizes the importance of fiscal decentralization (the power to tax and to receive grants) for the effective delivery of municipal functions. The Schedule is still a vital point of reference for legal disputes, urban planning and governance reforms to ensure municipal functions have their basis in constitutional authority and not just in statutory provisions.

Amendments:
The Twelth Schedule has not been amended since its enactment .

Case Laws:

1. ‘ Nagar Panchayat (Kurwai) v. Mahesh Kumar Singhal,‘

The case in 2013,

• ISSUE:  In the instant case from Madhya Pradesh, Nagar Panchayat (Kurwai) had challenged the decision of the High Court directing imposition of parking fee on the vehicles parked at the bus stand. In the present case, the appellant Nagar Panchayat was the owner of the land on which the said bus stand was constructed.
• CONCLUSION: The Apex Court in the end has ruled in favour of the appellant and upheld the right of the Nagar Panchayat to levy parking fee. This theory is justified by Article 243W(a)(i) and (ii), Entry 17 of the Twelfth Schedule, and Section 358(7)(m) on the principle that “no individual has an inherent right to use another's land without consent or compensation, if needed”.

2. ‘M.C. Mehta v. Union of India in 2004,‘

• ISSUE: The Supreme Court has given its verdict on pollution by industrial and residential establishments in Delhi.
• CONCLUSION:The Court commented that it was not tolerable on the missing action by “The State” and “the Municipality”. In the present case the Supreme Court has specifically discussed the duties of Municipal Corporation under Twelfth Schedule as well as under Article 243W.

3. ‘Shri Girish Vyas v. The State of Maharashtra in 2011,‘

• ISSUE: State Government of Maharashtra order passed regarding change in status of reserve land in Pune Municipality region (At Prabhat Road, Plot No. 110) initially restricted for public use such as playground or park etc. Also, there was 10 story building construction was done on Said land.
• CONCLUSION: The Apex Court said that the order of the State Government to change the status of the reserve land was to be ignored and the completed construction was taken as an illegal act.
  The court was concerned as to whether the Municipalities were in a position to exercise the functions conferred upon them under the Twelfth Schedule. Such work requires planning. Statutory powers cannot be contravened. The Municipal Commissioner, Ministers, Corporators and Administrators should render their duties to the Corporation.

4. ‘Kishansing Tomar v. Ahmedabad Municipal Corporation (2006)‘

• In this case the Court stressed the importance of holding municipal elections in such a manner as to guarantee self-government.

6. ‘Vellore Citizens Welfare Forum v. UOI (1996)‘

• In this case, the constitutional significance of municipal functions like sanitation was established as they could be connected with the fundamental rights of citizens. Thus it can be concluded that the municipalities have to perform the functions set forth in the Schedule in accordance with constitutional requirements.