10

State Control over Urban Local Governments

There are two antithetical views about the supervision and control of state government over municipal bodies. The advocates of populism who are staunch supporters of unbridled municipal democracy are opposed to any sort of interference by state government. They believe that the control and supervision of the municipal institutions is unwarranted, unnecessary and fraught with mischief; and that self-government would cease to be so if it is made subject to external control and supervision.¹ They further contend that decentralization implies complete autonomy without any outside restrictions and limitations, that centralization of powers would tend to transform local government into local administration; and that the strength of a central government that tries to keep local government weak is an illusive strength.²

Proponents of paternalism, on the other hand, hold the view that municipal bodies have to be regularly controlled, supervised, guided, and occasionally punished for their acts of omission and commission.

Arguments in Favour of State Control

It is argued that since, constitutionally, municipal government falls within the province of the state government, the latter has the power to determine their structure, functions, and financial resources.³ In other words, being infrasovereign bodies created by the state government, they are amenable to its control and their autonomy is limited.⁴ In their opinion, the autonomy of municipal bodies implies the degree of selfgovernment within the ambit of their functions but it does not mean their unlimited authority and freedom. They therefore hold that some measure of control of state government over the municipal institutions is not only desirable but also necessary. They contend that ‘ever since the inception of statutory institutions of local government, the state government has reserved the right to regulate their structural autonomy and has not treated decentralization as something sacrosanct but as a device to aid the achievement of the ends of government’.⁵

State control over municipal bodies is favoured for other reasons also. It enables the government to put into operation a policy which individual local institutions may find irksome or unduly restrictive of their initiative. The state government can also lay down certain minimum standards of administration below which the services of the local authorities should not be allowed to fall.⁶ State control is also needed for proper direction, unification, and coordination of the civic services and for securing consistency and continuity both in the formulation and the implementation of the national policies.⁷ The Taxation Enquiry Commission had accordingly observed, ‘The state government constituting the representative governing authority in a state has the responsibility to see that local bodies are efficiently organized; that they perform their functions properly, and that they take adequate part in the development of the country.’ ⁸

According to Prof. M.P Sharma:

The Central or State Governments are ultimately responsible for the financial solvency of the local bodies. They cannot leave a local body threatened with bankruptcy to its own fate because that would mean the cessation of certain vital services like water supply and sewerage in its area. If the central or state governments are to be responsible for the financial soundness of local bodies, they must have the power to exercise financial control in a measure sufficient enough to prevent mismanagement. The government gives grants-in-aid to the local bodies and to enable it to ensure that the grants are properly and usefully utilized local bodies must be subject to the control of higher authorities.⁹

Moreover, the local bodies, after all, form a part of the greater whole, i.e. the state, and there must be some higher authority to intervene when any local body ignores the fundamental canons of sound administration or sacrifices in any other way the interests of the people.¹⁰ It has been rightly observed by late Prof. PA. James that in the absence of any control, the local bodies are prone to work in an erratic way, defeating the very purpose for which they were set up. And complete autonomy to local bodies would spell anarchy.¹¹

Planning provides another rationale for state control over municipal bodies. According to the latest thinking on planning, the rural and urban local bodies are to be involved both in the formulation and implementation of plans for their respective areas.¹² As such, the state governments are to provide the required guidance to the local bodies in the formulation of plans, and exercise supervision and control on them in their execution.

From the foregoing discussion, it is clear that the state control over municipal bodies is justified on the grounds that it is conducive to the maintenance of a reasonable degree of efficiency; that it helps in weaning away local bodies from vested interests; that it aids in augmentation of financial resources of the local bodies which are generally reluctant to impose direct taxes; that it makes for minimizing regional imbalances and ensures stability and uniformity in administration; that it safeguards national interests in their embryonic stages and that it facilitates sounder socio-economic planning.¹³

Forms of Control

Municipal bodies are subject to the legislative, executive, and financial control of state government and also amenable to judicial control.

Legislative Control

Legislative control is exercised by the state government by virtue of its inherent right granted to it by the constitution and according to which it has the exclusive power to make laws in respect of local government institutions and decide their functions and powers.¹⁴ That is why Prof. R.K. Gooch observes, ‘Legislature is in a position theoretically and potentially to treat local government in any conceivable way.’¹⁵ C.A. Cross remarks, ‘All formal control which the government exercises stems from a specific statutory provision.’¹⁶ Accordingly, municipal bodies in a state are the creation of the respective state legislature and derive their powers from the statutes pertaining to them. The legislature can also empower the government to make rules and regulations for all municipal matters such as elections, personnel, accounts, taxation, etc.

The state legislature can also make amendments in the municipal Act from time to time and legislate separate Acts also to deal with some matters of importance instead of making minor changes in the existing Act.

Means of Legislative Control

From among the various means of legislative control such as discussions and debates and different kinds of motions like call attention, adjournment, and privilege, questions asked by the members of the legislature during the question hour constitute the most powerful means of soliciting information about different aspects of municipal administration from the minister concerned. The questions raised in the assembly generally relate to issues like municipal elections, including preparation of electoral rolls, election petitions, gazette notification of elected members, removal of members, writs filed in the High Court, supersession and abolition of municipal committees, personnel, finance, and day-to-day administration of municipal bodies.

Legislative control over municipal bodies as discussed above, is of great significance, but it cannot be exercised in an effective manner owing to paucity of time at the disposal of the legislators, technical nature of municipal administration and political considerations, biases, and prejudices of the ruling party.

Administrative Control

Administrative control over municipal bodies is the most effective type of control extending to every aspect of municipal administration. Baker Benjamin has termed it as the technical direction of municipal affairs by the state administrative authorities.¹⁷ It comprises of determination of criteria for the creation of different kinds of municipal bodies; defining, increasing or decreasing their territorial limits; fixing the number of the elected members and the seats to be reserved for the Scheduled Castes and Scheduled Tribes, conduct of free and fair elections; delimitations of wards; co-option of members of certain categories of people not represented through elections; appointment of associate members and officials advisers; extension of the term of office of members or its reduction due to supersession, disposal of election petitions, removal of members and office bearers such as president and vice-president, etc.

The state government exercises administrative control over municipal bodies as follows:

1. Power to Approve By-Laws: The state government is vested with the power to approve by-laws and rules framed by the municipal bodies; to issue memoranda, circulars, and directions containing advice, suggestions, instructions, and directives; to sanction specific schemes; to prescribe service standards; to lay down procedures and norms; to conduct enquiries and inspections; to obtain periodic reports and to require the municipal bodies to obtain prior approval of the government for undertaking certain kinds of functions or for imposing any tax; etc.

   The state government is also vested with the power to annul resolutions passed by the municipal bodies if these are felt to be in excess of the powers conferred on them by law or are contrary to the interests of the public or are likely to cause waste of municipal funds or lead to a breach of peace, or encourage lawlessness.

2. Control over Personnel: The state governments have assumed complete authority over the municipal personnel since the provincialization of municipal services from the post of an assistant and above. It is now the government which creates the posts, lays down definite qualifications for different posts and channels of promotion, makes appointment on the recommendations of a selection committee constituted by it, orders transfers from one municipality to another and determines their conditions of service, though the salary, allowances, gratuity, pension, and other payments are made by the concerned municipal body. The government is also vested with the power to take disciplinary action against the personnel of municipal services. The municipal bodies enjoy the right to employ only clerks, and class-IV employees subject to the approval of the state government. The president and the municipal committee concerned can take action against personnel employed by the municipality but an appeal against it can be made to the government, whose decision is final. The state government, on its own, can also demand punishment or dismissal of any servant of the committee who in its opinion is unfit for employment.

   Similarly in the case of municipal corporations, the commissioner, in whom the entire executive power is vested, is appointed by the state government. And since all cadres of municipal corporations drawing a prescribed minimum salary per month have been provincialized, the state government has been empowered to exercise complete control over the personnel of municipal corporations with respect to their recruitment, transfer, promotion, conditions of service, conduct and discipline, etc.

3. Power of Inspection: The state government is also vested with the power to conduct inspections of the activities performed by the municipal bodies. The inspections are conducted by the representative of the state government at the district level, and in the state where the directorates of local bodies have been set up, the local inspectors are appointed for this purpose.

   The purpose of inspection is to ensure that the municipal bodies are functioning within the framework of the Municipal Act. The state government issues suitable directions to the concerned local body in order to make it more efficient and to streamline its functioning and the inspection is intended to ensure that these directions are being observed meticulously.

4. Reports and Enquiries: The municipal bodies are obliged to send periodic reports to the state government regarding their functioning. The reports can be quarterly, half yearly or annual. These reports include information concerning financial, administrative, and statistical matters. This is a tool in the hands of the government to get acquainted with the latest state of affairs of municipal bodies. The government can i nitiate any enquiry on the basis of these reports and can also extract any kind of information from the municipal body.
5. Default Powers: A municipal body is obliged to perform its functions within a specified period. If a municipal body fails to perform a particular function within a specified period, the state government can issue directions to finish the work in the stipulated time. If the municipal body still fails to perform that function, the state government can get that work done on its own but the expenditure for that work is to be incurred by the concerned municipality.
6. Appellate Powers: There is a provision in various state municipal acts for making appeals to the state government against any municipal decision. Some of these decisions are concerned with issue of licences, refusal for construction at a particular site, demolition of a building, and disciplinary actions.
7. Powers of Dissolution and Supersession: Of all the administrative powers of control that state government exercises over municipal bodies, the power to dissolve or supersede a municipal body is the most drastic—a sledge hammer type of power.¹⁸ Dissolution connotes terminating a council and giving a chance to the electorate to elect a new council within a specified time limit. Supersession, on the other hand, means suspension of the council and placing the entire control of the municipal body in an administrator appointed by the state government. Dissolution is thus less severe than supersession. Dissolution stems from lack of confidence in the competence of the councillors and penalizes them, while supersession amounts to punishing the electorate because it deprives them of their representatives in a municipal body. The state governments have been vested with the power of suspension and supersession of municipal bodies. It is provided in municipal acts of various states:

   That if in the opinion of the state government, a committee is not competent to perform or persistently makes default in the performance of the duties imposed on it under the Act or exceeds or abuses its powers, the state government by an order published in the official gazette, together with the statement of reasons thereof can declare the committee under suspension for a period not exceeding one year. But after the expiry of the period of suspension, if the committee again acts in a similar manner, the state government by a similar order can supersede the committee. Before making an order of suspension or supersession, the state government is required to give an opportunity to the committee to show-cause why such one order should not be made, but such an opportunity is not necessary where it is not reasonably practical to do so.

The state governments have been frequently resorting to supersession of municipal bodies on the grounds of incompetence, persistent default in the performance of their statutory duties and abuse of powers. The reasons usually given by the state government for their supersession have been: the sanitary conditions in the municipal area of the committee were most deplorable and no proper arrangement for the removal of garbage had been made and, as a result of that, the city was stinking; the committee did not make adequate arrangements for the supply of drinking water in the newly constructed colonies on the outskirts of the town and the constructions therein were mostly unauthorized due to non-adoption of model building bylaws by the municipality; in the matter of providing street lights, the position was highly unsatisfactory; the municipal committee had failed to take proper care of municipal roads and almost all the roads within the municipal area were in a bad shape, which was not only a cause of annoyance to the public using vehicles but also to the pedestrians; the municipal committee had resolved to stop the Public Health Department from executing sewerage works in the city which was against the public interest; the maintenance of accounts in the municipality was unsatisfactory and the committee had practically taken no action for the clearance of old requisitions and objections of the audit which were hundreds in number; the financial position of the committee was not satisfactory; it had raised loans but the amount of recoverable arrears of various taxes and fees was substantial which clearly indicated that due attention was not being paid by the committee towards realization of arrears.

These charges appear to be quite common and can be easily levelled against any municipal body. High Courts when approached quash the decisions of the state government to supersede the municipal body concerned, motivated as they are by the political and partisan considerations.

The provisions for the supersession of municipal corporations are generally similar to those for the supersession of municipal committees with the difference that the period of the supersession of the former is not to exceed two years as against the stipulation of no time limit in the case of the latter. The consequences resulting from the supersession of a corporation would also be the same as in the case of a municipal committee, viz. that all councillors shall on such date as may be specified in the order, vacate their offices without prejudice to their eligibility for election; that during the period of supersession of the corporation, all powers and duties conferred and imposed on the corporation shall be exercised and performed by such officer or authority as the government may appoint in that behalf; that all property vested in the Corporation shall, until it is reconstituted, vest in the government; and that before the expiry of the period of supersession, elections shall be held for the purpose of reconstituting the corporation.

Critical Analysis of the Power of Supersession

The provisions governing supersession of municipal bodies are questionable due to their lack of objectivity and absence of definite criteria for determining efficiency or defaults:

1. In the first instance, the words ‘in the opinion of the government’ make it clear that it is the opinion of the government that counts. It is well known that judged by the known standards opinion can never be objective. Nowhere has it been mentioned in the Act or under the rules as to how this opinion is to be formulated or arrived at.¹⁹
2. Secondly, it is no possible to define competence in precise terms and to assess it objectively. A municipal council may be very competent in performing some functions but quite inefficient in performing other functions.
3. Again, competency of a single council independently assessed will be something very different when it is assessed in relation to other councils.
4. Moreover, a council may not be able to exhibit competency in the performance of its multifarious duties in view of the fact that the finances of the municipality are not commensurate with the functions entrusted to it.
5. Further, competency is judged both by the directorate and the secretariat. Different officers are associated with this process at different levels. It cannot be denied that what is considered competent by one officer may not be considered as such by another. Subjectively assessed competence cannot therefore be a real ground justifying the supersession of a municipal body.²⁰
6. Maladministration may further be due to the lapses on the part of individual councillor, the president, the executive officer, and the council in its collective capacity. The government generally cannot pinpoint the responsibility squarely and it is unfortunate that the committee as a whole should be punished for the fault of one or the other of its constituents.
7. ‘Default’ is another ambiguous term. There have been municipal councils in default in relation to certain functions but it is highly doubtful whether all such cases come under the category of persistent default.
8. Incompetence or default in performance needs to be proved for which evidence has to be produced. What actually happens is that all of a sudden, for one reason or other, the decision to supersede is taken, and then efforts are made to collect information and evidence to lend support to the decision already taken. Hence it is commonly held that most supersession decisions are politically motivated.²¹
9. As a matter of fact, party politics has been a major factor in the supersession of municipalities. In municipal committees in which the interests of the party in power at the state level are safely looked after no such drastic action is taken even if their administration is in poor shape.²² The decision to supersede, therefore, is a political one and occasionally partisan.²³
10. Lastly, the view that if a municipal council abuses its powers or is considered incompetent to perform its functions it should be superseded is mistaken, as mankind has not yet and cannot ever contrive a foolproof legislation or, for that matter, any foolproof human organization. If that were so the judiciary would not have declared so many state and even parliamentary acts ultra vires of the Constitution. The decisions of the high courts are sometimes rescinded by the Supreme Court. Many actions of the bureaucrats who, as a class, tend to regard themselves as the acme of wisdom and uprightness, have invited the wrath of the judiciary.²⁴

Supersession of municipal bodies is therefore not a proper remedy for the maladies from which they generally suffer. It is a short-term palliative dealing with the symptoms rather than the disease itself.²⁵

This drastic action by the government has been disapproved by almost all the committees and commissions which have probed into the affairs of municipal bodies. The Simon Commission had significantly pointed out that where a spur or rein was needed the ministers were only given a poleaxe.²⁶ The aim of the government should be to rectify and remedy the evils progressively and to improve the councils from within by infusing greater enthusiasm for self-government and civic responsibility among the inhabitants of the civic community rather than to pronounce the capital sentence of them.²⁷ Every suspension is a setback to the cause of the development of responsible local government and it should be avoided so far as possible on that ground alone.²⁸ Supersession, dissolution or action in default by the state government should, therefore, be applied rarely and as a last resort after all means of advice and persuasion have been exhausted.²⁹

The incompetence of municipal bodies in performing their functions can be attributed to the weaknesses of their structure, which include the absence of a strong and independent executive, undue interference by the councillors in executive matters, inefficient and unqualified municipal personnel, inadequate resources, losses due to improper assessment, faulty collection of taxes, and wasteful expenditure. And unless these defects are removed through necessary changes, a council cannot be expected to perform its duties efficiently and effectively. It is on such changes that attention needs to be focused. Political supersessions of municipal bodies do not take the system anywhere towards achieving the objectives of municipal government.³⁰

Despite the disapproval and condemnation of supersession by various committees and commissions as discussed above, it is surprising that it is still in vogue in an unabated manner. Its continuance may be explained by reasons: first, that it may be purely conventional and hence taken for granted; second, the application of supersession as a controlling device seems to be inextricably linked with politics of one kind, or the other, councils belonging to a different political party or even of the same party but of a different or opposite groups can be superseded on one pretext or the other; third, supersession is resorted to for arresting a deteriorating situation and toning up the administration of a municipal body to a particular standard and then to hand it over to the elected representatives of the people.³¹ Finally, the mistrust entertained by the government that local bodies at any time may go wrong, in which case the government will have to assume responsibility and the notion that it is best discharged by recourse to supersession has led to its continuation.

Conclusion

Whatever the reasons prompting the government to supersede municipal bodies, it is in the fitness of things that municipal governments having been elected by the freely expressed choice of the people should be allowed to run their full course set out in the governing act itself. Suspension or dissolution of elected local government amounts to a supersession of democracy itself. And setting at naught the people’s choice by force of a mere executive fiat is adding insult to injury.³² A local government should be inflicted punitive actions such as suspension or dissolution only by the people’s representatives at a higher level. According to Prof. G. Mukherjee, ‘The statute which creates local bodies and gives them all powers is enacted by the people’s representatives in the state legislatures. Logically, therefore, it is that body alone which can decide as to whether a local body should be superseded or not.’³³

Control Mechanism: Agencies of Control

The state government exercises supervision and control over municipal bodies through state level and local agencies. The former comprise the Department of Local Government, Directorate of Local Government, and technical departments, and the latter consist of the deputy commissioner and the sub-divisional officer. In other words, three segments of administration are concerned with local bodies, viz. (a) the secretariat, (b) the department, and (c) the regional and field officers. The Secretariat is basically a policy formulating body and the field offices and subordinate offices are the regional or field agencies for policy implementation. And in between these two, comes the institution of ‘directorate’ which caters to the policy formulation needs of the secretariat and also ensures proper and effective implementation of policies by the subordinate field offices. The institution of ‘directorate’ is normally technical in nature and as such gives technical advice to the secretariat on matters falling within its jurisdiction.

Department of Local Government

The Department of Local Government exercises control over municipal bodies by laying down the major policies of local government and issuing directions and orders to municipal bodies. The department is also concerned with some major issues of local government such as delimitation of the wards of a municipal body, fixing the number of members to be elected and nominated, extension of term of a local body, and elections to municipal bodies.

Not all states have a separate department of local government. In some states the department of local government has been merged with another department. For example, Maharashtra has one department for urban development, public health and housing; in Andhra Pradesh a common department exists for public health, housing and local government. But there are also some states like Punjab, Haryana, and Rajasthan which have separate department of local government.

The Department of Local Government is headed by a cabinet minister or a minister of state holding independent charge. He lays down the major policy of the department and decides major policy issues. A senior IAS officer is the Secretary of the department. He is assisted by joint secretary, deputy secretaries, under-secretaries and the supporting staff.

The Directorate of Local Bodies in Punjab, for instance, is headed by a Joint Secretary who is the ex-officio director of Directorate of Local Government and is assisted by a joint director. The post of the joint director is held on ex-officio basis by one of the three deputy secretaries of the department. There is one deputy director (headquarters) assisted by an assistant director and other clerical staff. The directorate has its regional offices at Amritsar, Jalandhar, Ludhiana, Patiala, and Ferozepur under the charge of a deputy director to provide guidance and advice to the municipalities at their door step. The regional deputy directors exercise almost the same powers as were being exercised previously by the deputy commissioners in their respective districts.

Functions of the Directorate

1. The directorate plays an important part in the formulation of municipal policies by the state government. This is facilitated by the fact that the joint secretary and a deputy secretary of the department perform the functions of the director and the joint director, respectively. Actually the secretariat branches of the department of local government are situated within the building premises of the directorate and function under the direct supervision of the director (joint secretary) and the joint director (as the deputy secretary).
2. The directorate advises the government on all policy issues concerning municipal administration such as creation and classification of municipalities, their structure and functions, taxation, loans and financial grants, creation of state municipal services and their recruitment, training and promotion, and state-municipal relations. Besides, it also functions as a controlling agency for all municipal and urban institutions in the state. The control pertains to municipal elections, approval or repeal of municipal resolutions, appointment, promotion, and transfer of certain categories of municipal employees and disciplinary action against them and the supersession or dissolution of a municipal body.
3. The director and the joint director being preoccupied with policy making functions, the inspection work is usually taken up by the deputy director (headquarters) and the five regional deputy directors as also by the deputy commissioner. Sometimes enquiries are also conducted by the directorate into the affairs of the municipal bodies either on public demand or on its own.
4. The directorate formulates rules and regulations and communicates these to the municipal bodies. It also issues circulars with a view to explaining government orders, tenders advice on specific cases and elaborated procedural matters. Many a time, municipal bodies approach the directorate to help them in specific cases such as asking a functional department for the expeditious sanction of their cases.
5. The directorate, sometimes, also undertakes the execution of specific services under extraordinary circumstances.
6. Besides performing the above functions, the directorate ensures inter-departmental coordination, interprets and relaxes, if necessary, existing rules and orders of the government, examines the municipal inspection reports, conducts research on local government problems, etc.

Technical Departments

Due to financial constraints, most of the municipal bodies, especially the small ones, cannot afford to engage technical experts to advise them on technical aspects of their schemes of water supply, sanitation, health, roads, public works, etc. They have to depend on the state technical departments for preparation, scrutiny, technical sanction, and even sometimes for the execution of their schemes. Their dependence on the technical departments thus naturally establishes a relationship between the municipal bodies and the technical departments. The municipal bodies submit their schemes to the respective technical departments through the regional directors or the director of the Directorate of Local Government. The technical departments concerned examine the proposals and accord their technical sanction. The Director of Local Government works as a link between the municipal bodies and the technical departments.

Under this arrangement, municipal schemes are often held up because of delay in securing technical sanction from the department concerned. It has, therefore, been suggested that the Directorate of Local Government should have an engineering cell to render assistance and advice to the municipalities in purely technical³⁴ matters and the cost of the cell be met from what municipalities are now required to pay to the technical departments for investigation work, preparation, and implementation of schemes. Alternatively, a purposeful coordination among the different state functional departments can be achieved by a coordination committee, consisting of nominees of various functional departments, with the Director of Local Government as the chairman. This committee would serve as a technical staff agency for advice and if any problem is beyond the solution of this committee, the Department of Local Government can take it to the sister secretariat departments for necessary consultation and decisions.

Local Level Agencies

Role of Deputy Commissioner in Municipal Administration

Once the divisional commissioners and deputy commissioners enjoyed vast powers of supervision and control over municipal bodies. And though the powers of the commissioner have been curtailed, the deputy commissioners continue to exercise substantial powers in respect of civic bodies even after the establishment of the Directorate of Local Government. Deputy commissioner can enter and inspect any immovable property occupied by a municipal committee, inspect any work in progress, call for any document, return, statement, account, report, and proceedings of the committee. He has also the power to suspend in writing the execution of any resolution or order of a committee if it is contrary to the interest of the public or is likely to cause waste or damage of municipal funds or property or is likely to lead to a breach of peace or encourage lawlessness. In case of an emergency, he may provide for the execution of any work that is considered to be necessary for the service and safety of the public and may direct that the expenses of the execution of the work be paid by the committee. He has the power to order performance of duties in case of default.

He is the in-charge of municipal elections starting from preparation of voters lists, receiving nomination papers and conducting elections of councillors, chairman, and vice-chairman. Election petitions must be presented to him within 14 days of the result of an election. He can extend this period also on the basis of sufficient grounds for such extension.

He approves the budgets of municipal committees of Class-II and Class-III. He is empowered to prevent extravagance in municipal establishments. If, in his opinion, the number of persons employed by a committee in services other than those in respect of which a municipal service has been instituted, or the remuneration assigned to them is excessive, he may require the committee to reduce the number of persons or the remunerations as the case may be.

He also hears appeals against the assessment or levy of any tax or against the refusal of refund of any tax under the Act. He also decides the appeals against compensation awarded by a municipality in certain cases. The sites for slaughter houses can be fixed only with his approval.

The sub-divisional officer, who is the in-charge of a sub-division in a district, enjoys the same powers in a sub-division as the deputy commissioner does in a district, the only difference is that of jurisdiction. The deputy commissioner is supervising and controlling authority of all municipalities in the district, whereas a sub-divisional officer is authorized to supervise and control only the municipalities situated in his area. Another distinction is that a sub-divisional officer has not been delegated the powers in emergency or in case of default.

The description of the powers of the deputy commissioner as given above clearly brings out his role in supervision and control of municipal bodies. The state government still finds in him an expedient and effective instrument to exercise control over municipal administration. Those who subscribe to the view that he cannot be relieved of the supervisory and controlling powers over municipal bodies hold that the municipal authorities do not have the expert knowledge even to frame their budgets properly and manage their finances and administration efficiently and therefore the district machinery has to be utilized to tone up municipal administration;³⁵ that the directorate has not appointed field officers at the district and tehsil levels; that the deputy commissioner carries enormous influence in the public on the one hand and with the functional departments of the government on the other, and therefore, he alone, not the chairman of the municipal board, can ensure smooth and efficient functioning of municipal administration with the support and cooperation of district officers.³⁶

Those who disapprove of the deputy commissioner being entrusted with supervising and controlling powers over municipal bodies aver that the Directorate of Local Government should have separate field agencies of its own, as the deputy commissioner—revenue and general administrative officer as he is—does not possess any special knowledge or training in municipal administration. Second, he is on all accounts an overworked official, more than that, he is the most harassed official.³⁷ Such an official can hardly be expected to devote the requisite time and attention to municipal affairs. He, therefore, entrusts this work to the sub-divisional officer for whom, this is an additional responsibility and he, in turn, perforce leaves it to be handled by a senior clerk who again does it in addition to his duties. Thus at the district headquarters, there is not even a single senior clerk whose whole time business is to manage this aspect of deputy commissioner’s work.³⁸ The Punjab Local Government (Urban) Enquiry Committee had rightly observed that ‘Deputy Commissioners owing to their multifarious duties do not find sufficient time to guide the municipal officers or help them in the formulation of their programmes and their implementation’. It had therefore underlined the need for an experienced and expert field agency directing, guiding and supervising the affairs of the local bodies.³⁹

Rationale for the Establishment of Directorate of Local Government

The need for the establishment of a Directorate of Local Government was emphasized by the Punjab Local Government (Urban) Enquiry Committee (1957). It had observed:

The directorate is needed to exercise control and supervision over the municipal bodies, and to help and guide them in the performance of their activities and to undertake inspections to ensure that their performance is bettered.⁴⁰

The Committee on Augmentation of Financial Resources of Urban Local Bodies (Zakaria Committee) had also recommended the setting up of municipal directorates. It stated:

Every state should have a directorate of municipal committee under the charge of a senior officer with considerable knowledge of and experience in local administration. The directorate would exercise close supervision over the working of the chief executive officers and also give necessary guidance to the local bodies. It will also function as the Inspectorate of Local Bodies and by frequent inspections ensure that the performance of the local bodies is upto the mark.⁴¹

The Central Council of Local Self-Government, in its meeting held in February 1965, also urged the state governments to establish the directorates to keep a watch on the implementation of its resolutions and those of the conferences of mayors of municipal corporations, and to ensure the execution of the local government schemes. The executive committee of the Central Council, too, endorsed these recommendations and suggested the formations of planning cells to help and guide the urban local bodies in the preparation of five year plans.⁴² The Rura—Urban Relationship Committee was also of the opinion that a well organized directorate at the state level with effective regional inspecting staff should go a long way towards improving the system of direction, supervision, and control of local bodies. It should guide and advise local authorities in the solution of their current and future problems and advocate their cause with the relevant departments.⁴³ The study team on district administration of the Administrative Reforms Commission also advocated the setting up of a directorate at the state headquarters along with the inspectorate attached to it.⁴⁴

The Punjab Government had set up a directorate of municipal inspection and Guidance in 1962. It had appointed divisional inspectors at Patiala, Ludhiana, and Jalandhar. But it was realized that the system of divisional inspectors for the supervision and guidance of local bodies was not sufficiently effective, and that the establishment of a directorate of urban local bodies was the only way out to achieve the desired objectives. It was felt that:

1. At present the activities of the local government, by and large, were restricted to what may be called ‘police functions’, that is, prevention of misuse of powers by local bodies through audit and inspection by the divisional inspectors and deputy commissioners in the form of removal of members, supersession of incompetent local bodies, etc.
2. The local government department greatly felt handicapped without a field organization on the pattern of the directorates of other departments.
3. The department was overburdened with their workload, much of which could be processed and dealt with at the directorate level, thereby ensuring speedy disposal of cases.
4. There were only three divisional inspectors and the work of control, supervision, and guidance at the district and sub-divisional levels was left with the busy collectors and sub-divisional officers whose hands were already full with multifarious duties pertaining to revenue, development, and general administration and who could not therefore deal with the problems of urban local bodies effectively.
5. The majority of the members of municipal bodies were ignorant of the laws and rules governing municipal administration, and therefore there was an urgent need to have an organization for educating them in civic responsibilities and duties, and that only a properly organized directorate could undertake this job.

Major arguments in favour of setting up the directorate thus have been a general dissatisfaction with the existing state machinery for municipal supervision and control, the need for reducing the congestion of work at the secretariat level, the need for a field organization on the pattern of the directorates of other departments, and the utility of a well-equipped state machinery which could act as a bridge between the municipalities and the state-level institutions.

The Punjab Government prompted by these considerations had established the Directorate of Local Government in 1966.

Appraisal

The directorate was established with the express purpose of making the supervision and control over local bodies more effective by reducing the scope of powers and control exercised by the district authorities in relation to municipal administration. That is why more and more powers have been delegated to the regional deputy directors. Despite this, a comparison of the powers of the regional deputy directors and the deputy commissioners shows that the former have been assigned much less authority and they do not enjoy any appellate, emergency or special powers. Besides, the delegation of powers to the director/regional deputy directors does not deprive the deputy commissioner of the original jurisdiction under the Act. Two sets of officers operating in the same area, empowered with the same authority, may cause confusion and create problems due to conflicting opinions about their jurisdiction and powers. It appears that the directorate has not clearly defined the role of its own regional officers and that of the traditional state field administration. To cite an example of this ambiguity, the power of suspension of municipal resolution or orders were, to begin with, delegated to the regional deputy directors, but these have since been withdrawn and are exercised by the deputy commissioner. Again, the director has been delegated some important financial powers of sanctioning of budgets, re-appropriation from one hand to another and regulation of expenditure in the case of Class-I municipalities but similar powers in respect of Class-II and Class-III municipalities have not been delegated to the regional deputy directors and these are still exercised by the deputy commissioner.

Because of the overlapping jurisdiction of the directorate and the deputy commissioner, an element of competitiveness between the two is bound to erupt which may result in belittling the importance of the directorate, discouraging its expansion, and its abolition altogether. It would be improper to replace the directorate by the district administration, for it involves a comparison between incomparable agencies. The directorate is a state level agency with statewide jurisdiction, functions, and responsibilities while district administration is purely a field level organization.⁴⁵ It is the director and not the deputy commissioners in the different districts who can ensure uniformity in state supervision and control over the municipal bodies. If at all a comparison is to be made, it should be between the district administration and the regional offices of the directorate,⁴⁶ who constitute as much a field agency as the latter. From the municipal administration point of view, the relationship between the directorate and the deputy commissioner is of vital significance; coordination, and cooperation between the two is therefore very essential as any conflict between them will jeopardize the development and smooth functioning of municipal administration in general.

In addition to the inherent structural and operational defects in the directorate organization vis-a-vis the position and role of deputy commissioner in municipal administration, the functioning of the directorate has been further criticized on the ground that it has acted more in an autocratic and authoritarian manner in exercising supervision and control over municipal bodies, not in any way different from what the municipal bodies had been subjected to prior to its establishment, and less as an agency for providing advice, guidance and help to them, which was precisely the major role expected of it.

It is also alleged that the directorate has been a source of delays in disposal of cases of municipal bodies. For example, the budgets of 24 class ‘A’ civic bodies for 1987–88 had not been approved by the directorate before 31 March 1986 and the plea given by it was that its officers had been busy, overworked and hard pressed for time due to their preoccupation with the session of the Assembly since 11 March 1987.

Another inadequacy of the directorate has been that its directors have not had a fixed tenure. They have been transferred too frequently. These have been instances when the directors have held the office for a few days or months only. This is detrimental not only to the overall efficiency of the directorate, but also to its routine functioning, as an officer with short tenure cannot be expected to formulate any policy, much less to implement it and to be committed to the objectives of an organization.

The directorate has thus not been able to produce the desired impact. It is rather felt that it has proved to be superfluous and the earlier arrangement, when the deputy commissioner had a direct control over the civic bodies and the remaining work could be properly managed from the secretariat itself, was a better one. The Haryana Unit of the BJP had demanded abolition of the directorate in a memorandum submitted by its five-member committee with Mr Ram Lal Wadhawa as Convener, to the Local Self Government Minister, Mr Sampat Singh on 8 September 1988. It may be mentioned that the Directorate of Local Bodies, Haryana, which was bifurcated from Punjab at the time of the reorganization of the states was wound up on 31 December 1968. It was set up again on 1 April 1983 after a lapse of 15 years. In between there had been no directorate to coordinate and control the working of the municipal committees. It would therefore be no surprise if it is abolished again and a demand for the abolition of directorate is put forth in Punjab also sometime.

Financial Control

As discussed earlier, urban local bodies are always at the mercy of the state government in regard to their finances. This financial dependency of local bodies on state government provides an opportunity to the latter to exercise control over the former. The state government also lays down various rules and regulations for the audit and maintenance of accounts. Therefore, it becomes obvious for the funding agency (state government) to ensure that the funds are not misutilized and the guidance regarding audit and accounts are properly followed. All of this necessitates the state control over municipal finance.

Financial control manifests itself in (a) regulation of municipal income derived from taxes, fees, loans, and grants; (b) regulation of expenditure; (c) budget; (d) accounting; and (e) auditing.

Regulation of Municipal Income

A municipal body can levy taxes, modify and abolish them only with the approval of the state government. The state government can also require a municipal body to levy a tax, rate or fee or exempt a particular class of tax payers from their payment. During emergency, the state government has the power to impose tax at rates to be determined by it even when a municipal body does not want it and does not need it.⁴⁷ The Punjab Municipal Corporation Act, 1976, gives a list of taxes which it is obligatory for the corporation to levy and at such rates as may from time to time be specified by the government by notification.⁴⁸ And if the corporation fails to impose tax so ordered by the state government, the government is authorized to impose the tax and the order so passed shall operate as if the tax has been duly imposed by the corporation.⁴⁹

The state government awards grants-in-aid to the municipal bodies to enable them to meet their ever growing needs and therefore exercises control over them to ensure that the grants are properly utilized and not misappropriated or diverted to functions other than those for which they were sanctioned. The state government also advances loans to them or allows them to raise these from other financial institutions and stands surety for them. It also determines the rate of interest on loans.⁵⁰ The state government ensures that the loans are utilized for the purpose for which they are received, the unspent amount is refunded and these are paid back along with interest as per agreed time schedule.

Regulation of Expenditure

The state government regulates municipal expenditure by fixing limits on expenditure to be incurred on various items, laying down regulations and procedures for incurring expenditures, for example, of inviting tenders or quotations to avail the benefit of market competitive rates on the purchases to be made, requiring the local bodies to obtain administrative and technical sanction from the competent authorities if the work involved exceeds a particular limit of expenditure.

Municipal Budget

Municipal bodies are required to prepare their budgets in the forms prescribed by the state government and get the same approved by it. Sanction of the state government is also required for re-appropriation from one head to another head of the budget. The state government, while approving the budget, has to see that the concerned municipal body has a minimum closing balance and necessary provision for the repayment of loans.

Accounting

Accounting constitutes the main ingredients of a sound financial administration. Mere imposition of taxes does not improve the financial position of the municipal bodies if taxes are not fully realized, the account books are not properly maintained and supervision over collection and expenditure is not exercised. In Punjab, the municipal bodies are required to follow the Punjab Municipal Accounts Code, 1930, which lays down detailed procedures for all sorts of financial transactions. The form and manner in which the accounts are to be maintained are generally prescribed by the Accountant General and any departure from these can be made only with the sanction of the state government.

Auditing

Municipal accounts are subject to annual audit conducted by the Examiner of the Local Fund Accounts to ensure that financial transactions are properly carried out, that amounts to be collected are duly realized and credited and that no amounts are paid without proper authority and provisions of funds in the budget. The audit reports point out irregularities pertaining to non-regularization of expenditure in excess of budgetary provision, non-adjustment of loans raised, non-recovery of taxes, irregular and wasteful expenditure, embezzlement and misappropriation of municipal funds, non-observance of works rules, and the like.

Judicial Control

Judicial control is intended to safeguard the rights of individuals against their encroachment by municipal authorities and those of municipal bodies against infringement by the state government. Judicial control is not only limited to the right of an aggrieved individual to sue a local authority for damages, there are, in addition, remedies available to secure the performance by local authorities of their statutory duties or to restrain them from acting outside their jurisdiction. The remedies available are in the form of various kinds of writs such as injunction, certiorari, prohibition, mandamus, and quo-warranto:

1. Injunction is a writ issued by a court requiring a person or a party to refrain from doing a thing, e.g. the Municipal Committee of Ludhiana was stopped from demolition of a part of building (Municipal Committee Ludhiana v. M/s S.R. Saini Brothers. Court Regular appeal No. 1254 of 1968, decided on 22 January 1980).
2. Certiorari enables a superior court to send for the record of the proceedings and orders of a lower court to enquire into its legality and to quash the order if found beyond its jurisdiction.
3. Prohibition is issued by a superior court to an inferior court and also to an authority exercising judicial or quasi-judicial functions for the purpose of preventing it from usurping jurisdiction with which it is not vested.
4. The writ of mandamus is in the nature of a command issued by a court to any person or public body to do something which is a part of their official duty.
5. The writ of quo-warranto can be applied for by any member of the public to challenge the rights of a person to hold a public office and to get him ousted if he has unlawfully usurped or intruded into such office.

Judiciary has the power to interpret laws governing the local government, by-laws and rules made thereunder and declare them ultra vires if they contravene the constitution or some provisions of other laws. The courts, however, do not interfere in municipal administration on their own. They intervene only on the initiative of the aggrieved party and when they are satisfied that errors of law, fact finding, jurisdiction and procedure have been committed.

The courts have entertained and decided hundreds of cases relating to the constitution of municipal committees or municipal corporations, election and removal of their members and office bearers, conduct of business, delegation of powers, punishment and dismissal of officers and servants, taxation, supersession, etc.

The judiciary thus plays an important role in providing justice to the aggrieved parties against the arbitrary and unlawful actions of the municipal bodies and the state government. But judicial control is not very effective because, first, the judiciary never takes the initiative, but intervenes only on being approached by the aggrieved citizen or by some one interested in the case, consequently many cases are never brought to the notice of the courts; second, litigation is a very expensive affair which a private citizen of moderate means can ill-afford; third, the judicial process is very lengthy, dilatory, and time consuming and is therefore very discouraging and frustrating for the persons concerned to take recourse to court of law; fourth, municipal acts and the municipal corporation acts of some states bar the jurisdiction of the courts in certain cases.

In order to make the judicial control more effective, necessary reforms need to be brought about in the prevalent judicial system, which is confined to the redress of wrongs already committed and does not provide for preventive justice, which should authorize the courts to define or declare disputed rights and duties before any suit involving them is contested in the courts. Second, the courts have no power to enforce their decisions and they have to depend upon the executive branch of the government to carry them out. Hence, there is need for ensuring complete cooperation of the executive in the execution of the decisions of the courts. Third, special municipal courts exclusively dealing with municipal laws need to be established for speedy disposal of suits. Some municipal bodies have experimented with the institution of municipal magistracy for quick disposal of cases successfully. It is desirable that other big municipal committees and corporations should revive or introduce this system to render speedy justice to the public.

Conclusion

The mechanism of control has been inherited from the British Government, which for obvious reasons favoured a restrictive local government in India and therefore had imposed a system of checks resulting in an exceptionally high degree of regulation, control, and interference in the affairs of local government, thereby rendering the local government impoverished and emasculated. But in free India the role of the state government towards grassroots democracy is to be essentially different from what was designed by the alien government. Now the local government is to be recognized as a part of the responsible governmental system of the country and is allowed to play its role as such in the development of the lives of people and the promotion of their welfare. In the words of Ursula Hicks:

The kind of relationship between central [which means state] and local governments that has to be aimed at, is neither control of local government by central government nor such concurrent powers as would be appropriate for the units of a federation. Rather, the optimal relationship would be a partnership of the active and co-operative members, but with the central government definitely the senior partner.⁵¹

Similarly, the Taxation Enquiry Commission had observed:

The state government constituting the representative governing authority in a state has a vital role to play in ensuring the proper functioning of local bodies. It is its responsibility to see that local bodies are efficiently organized, that they perform their functions properly and that they take adequate part in the development of the country. The role of the state government is therefore not merely of a negative aspect viz. the prevention of the misuse of powers by local bodies through audit and periodical examination but a positive one, viz. active encouragement and development of local bodies. Government control and help should, however, not be so meticulous or minute as to destroy the autonomy or selfreliance of local bodies. The goal of state efforts as well as the purpose of state control should be the development of local self governing institutions into efficient instruments of administration, capable alike of formulating policies and of execution them.⁵²

The Punjab Local Government (Urban) Enquiry Committee (1957) had also emphasized that ‘the conception of government role must change from that of a controller to that of an adviser, guide and help’.⁵³ In fact, control should be so designed as to generate respect in the people for their local government and to sustain and enhance the pride of city fathers.⁵⁴ In other words, if municipal institutions have to be retained and promoted at the grassroots level, state control has to change from restriction to facilitation.⁵⁵