Constitution of Municipalities — Boards, Corporations

A municipality is not a self-existing entity; it is called into being by an act of the State acting under statute and, since 1993, under a constitutional command. Under the Uttar Pradesh Municipalities Act, 1916 the smaller tiers of urban government — the nagar panchayat and the municipal council — are constituted by notification, given a defined composition, a fixed term, and a regime for dissolution and reconstitution. The largest cities sit outside this Act, governed instead by the U.P. Municipal Corporation Act, 1959. This note traces how each kind of body is constituted, how Part IXA of the Constitution disciplines that process, and how courts have policed the State's power to create and to destroy these elected bodies.

The constitutional mandate: Part IXA and Article 243Q

Before 1992 the constitution of urban local bodies was purely a creature of State statute, alterable at legislative whim. The Constitution (Seventy-fourth Amendment) Act, 1992, which inserted Part IXA (Articles 243P to 243ZG) and came into force on 1 June 1993, changed this fundamentally. Article 243Q now obliges every State to constitute three categories of municipalities: a Nagar Panchayat for an area in transition from rural to urban, a Municipal Council for a smaller urban area, and a Municipal Corporation for a larger urban area. The Governor, by public notification, classifies an area into one of these categories having regard to its population, the density of population, the revenue generated for local administration, the percentage of employment in non-agricultural activities, and economic importance. The result is that the existence of municipalities is no longer optional: the State must constitute them, and the U.P. Municipalities Act, 1916 had to be substantially amended (by the U.P. Act 12 of 1994) to conform. There is a narrow exception. The proviso to Article 243Q(1) permits the Governor, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment, to specify an area as an industrial township, in which case a municipality need not be constituted for that area. Subject only to that exception, the constitutional command is mandatory, and a State's failure to constitute or to maintain elected municipalities is itself open to challenge. For the constitutional and historical foundations, see our note on the introduction, object and constitutional background of the Act.

Two statutes, one urban system: where the 1916 Act stops

A point of constant confusion in examinations deserves clarity at the outset. The U.P. Municipalities Act, 1916 governs only the two smaller tiers — nagar panchayats and municipal councils. It does not constitute municipal corporations. Larger urban areas are governed by a separate enactment, the U.P. Municipal Corporation Act, 1959 (originally the U.P. Nagar Mahapalika Adhiniyam, 1959, and later renamed the U.P. Nagar Nigam Adhiniyam), under which cities such as Lucknow, Kanpur and Varanasi are constituted as Nagar Nigams headed by a Mayor. Both statutes were retro-fitted after 1993 to track Article 243Q's three-fold scheme, so the constitutional vocabulary is common even though the operative statute differs by tier. The 1916 Act's machinery for constituting a body — notification, composition, term and dissolution — therefore applies to the nagar panchayat and the municipal council, while the corporation's parallel machinery lives in the 1959 Act.

Constituting the body: notification and classification of area (Sections 3 to 5)

Under the 1916 Act the life of a municipality begins with a notification. Section 3 empowers the State Government to declare, by notification, any area to be a transitional area or a smaller urban area, applying the Article 243Q(2) criteria of population, density, revenue and non-agricultural employment. Section 3A then provides that there shall be a municipality for every such area — a nagar panchayat for a transitional area and a municipal council for a smaller urban area. Because the decision to constitute or to alter limits affects substantial public interest, Section 4 prescribes a preliminary procedure: the proposal must be published and an opportunity to object given before the final notification issues. Section 5 spells out the effect of including an area within a municipality — the existing notifications, rules, bye-laws and taxes attach to the included territory. This notification-driven scheme means that the very existence of a board is a matter of record traceable to a gazette entry, a feature courts rely on when adjudicating jurisdictional disputes over a body's territorial competence. The same Sections also govern the converse acts of alteration, inclusion and exclusion of territory and the conversion of one class of body into another as an area grows — a transitional area's nagar panchayat may be re-notified as a municipal council when the area matures into a smaller urban area, and ultimately may pass out of the 1916 Act altogether into a corporation under the 1959 Act. Because each such step alters the rights, taxes and obligations attaching to residents and ratepayers, the Section 4 requirement of prior publication and consideration of objections is not a mere formality; an alteration made without following it is liable to be set aside, and the classificatory criteria of Article 243Q(2) must genuinely be applied rather than recited.

Composition of the board (Section 9)

Section 9 fixes the composition of a municipality. Every municipality consists of a President as its chairperson, together with four classes of members. First, elected members directly chosen from territorial wards — not fewer than 10 and not more than 24 for a nagar panchayat, and not fewer than 25 and not more than 55 for a municipal council, the exact strength being fixed by the State Government according to population. Secondly, ex-officio members: members of the House of the People and of the State Legislative Assembly who represent constituencies comprising the whole or part of the municipal area, and members of the Council of States and the State Legislative Council registered as electors within it. Thirdly, nominated members — persons having special knowledge or experience of municipal administration, nominated by the State Government, two to three for a nagar panchayat and three to five for a municipal council. Critically, conforming to Article 243R, nominated members have no right to vote in the meetings of the municipality, so the deliberative core remains the directly elected body. The wider scheme of powers exercisable by this constituted body is treated in our note on the powers, functions and duties of municipalities.

Reservation of seats and offices (Section 9A and Article 243T)

The composition is shaped further by mandatory reservation, the statutory expression of Article 243T. Section 9A of the 1916 Act reserves seats for the Scheduled Castes and Scheduled Tribes in every municipality in proportion to their share of the area's population, and reserves seats for the backward classes subject to the statutory ceiling. Cutting across these categories, not less than one-third of the total number of seats — including those reserved for SCs, STs and backward classes — must be reserved for women, and not less than one-third of the seats reserved for each of those categories must go to women of that category. Reserved seats and the office of President are allotted by rotation to different wards in the order prescribed by rules, so that no single ward is permanently advantaged or disadvantaged. The Supreme Court in K. Krishna Murthy v. Union of India, (2010) 7 SCC 202, upheld reservation of seats and chairperson offices for backward classes in local bodies as constitutionally permissible, while cautioning that political reservation stands on a different footing from educational and employment reservation and should be supported by contemporaneous empirical data.

The President and office-bearers

The President is the constitutional and executive head of the board. Under the 1916 Act the President of a nagar panchayat and of a municipal council is directly elected by the electors of the municipal area, while the corporation's counterpart, the Mayor, is elected under the 1959 Act. The directly elected President gives the U.P. model a strong, personally accountable executive, in contrast to States where the chairperson is elected indirectly by the councillors. The President's tenure is co-terminous with the board, and the office is subject to reservation and rotation under Section 9A. The accountability of this office — through a motion of no-confidence carried by the prescribed special majority of elected members, and through removal for misconduct — is the principal internal check within the constituted body, and it operates alongside the external check of State supervision discussed below. The President is supported by a Vice-President and by the executive officer or municipal staff, but it is the President in whom the law vests the responsibility for convening meetings, for the lawful conduct of the body's business, and for the financial propriety of the municipal fund. The directly elected character of the office in U.P. is significant for the doctrine of accountability: a President answerable directly to the electorate cannot be displaced merely by shifting alliances among councillors except through the constitutionally and statutorily prescribed routes, which protects the stability of the constituted body during its five-year term.

Duration of the body and timely reconstitution (Article 243U)

Once constituted, a municipality enjoys a constitutionally protected term. Article 243U fixes the duration of every municipality at five years from the date appointed for its first meeting, and the 1916 Act's term provision conforms. Two safeguards in Article 243U are of practical importance. First, an election to constitute a municipality must be completed before the expiry of its five-year term. Secondly, where a municipality is dissolved before the expiry of its term, the election to reconstitute it must be completed within six months of dissolution, and the reconstituted body holds office only for the remainder of the original five-year term. The Supreme Court treats the holding of timely elections as a non-negotiable constitutional duty: in Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad, (2006) 8 SCC 352, it held that the State Election Commission and the State Government are bound to ensure elections are completed before the term expires, and that the obligation cannot be defeated by administrative convenience, financial difficulty or even ordinary delimitation delays. This jurisprudence makes the postponement of municipal elections justiciable.

Destroying the body: dissolution and supersession (Sections 30 and 31A)

The power that creates can also dismantle, but it is heavily fettered. Section 30 of the 1916 Act empowers the State Government to dissolve a municipality where it is satisfied, after the body has been given an opportunity to show cause, that the municipality is not competent to perform, or persistently makes default in performing, the duties imposed on it, or exceeds or abuses its powers. Section 31A sets out the consequences: on dissolution all members vacate office and an administrator is appointed to run the body until it is reconstituted within the six-month constitutional window. Because dissolution extinguishes an elected office and carries civil consequences, the courts insist on strict compliance with natural justice. The landmark authority is S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379 (AIR 1981 SC 136), where the Supreme Court quashed the supersession of the New Delhi Municipal Committee under the Punjab Municipal Act, 1911, holding that the loss of office on supersession entails civil consequences and that the rule of audi alteram partem must be observed even where the statute is silent — and even, the Court emphasised, where a hearing might not have altered the outcome. The principle applies with full force to dissolution under Section 30, so a show-cause notice and a real opportunity to be heard are jurisdictional pre-conditions, not formalities.

Judicial review of constitution and dissolution

The State's twin powers — to bring a board into being and to dissolve it — are administrative powers subject to judicial review on the settled grounds of mala fides, irrelevant considerations, non-application of mind and breach of natural justice. An order of dissolution driven by political motive rather than genuine satisfaction of incompetence or persistent default is liable to be struck down, and the burden of demonstrating the statutory satisfaction lies on the State. Reviewing courts also scrutinise whether the show-cause procedure was genuine or a sham, following the rigour of S.L. Kapoor. Equally, a notification constituting or altering a municipality may be challenged if the Section 4 objection procedure was bypassed or the Article 243Q criteria were ignored. The cumulative effect of Part IXA and this jurisprudence is to convert what was once a discretionary administrative act into a structured, reviewable and time-bound exercise — the constitution of a municipality must follow the gazette procedure, and its destruction must clear the hurdles of cause shown, hearing given, and reconstitution within six months.

Consequences of constitution: corporate personality, property and funds

Constitution under the Act is not merely formal; it clothes the municipality with corporate attributes. Once notified and composed, the body becomes a body corporate with perpetual succession and a common seal, capable of suing and being sued, acquiring and holding property, and entering into contracts in its own name. This corporate personality is what allows the body to own the municipal fund into which its revenues flow and from which its functions are discharged — a regime examined in our note on the property and funds of municipalities. The same act of constitution vests in the body the functional and taxing competence that the Twelfth Schedule and the Act distribute to it, so the seemingly procedural step of notification is the legal foundation for the body's entire fiscal and administrative existence. For a fuller treatment of the urban governance scheme and the hub of related topics, see the UP Municipalities Act notes hub.