Name: Akshata. S. Rane
Roll No: 160026
Rules of drafting of
Municipal Bye-laws

Introduction
 Traditional theory of the separation of powers – law-making is
primarily the function of the legislature.
 But a strict adherence to this has become impossible in a modern
Welfare State due to :
 Volume of work – unable to cope up with
 Complexity of the subject matter of legislation
 Therefore the legislature was compelled to delegate part of the law-
making functions to the executive.
 The legislature does not abdicate its essential function but only
authorizes a delegate to perform some subsidiary part of that
function.
 The fact that the executive when making a law is acting as a delegate
of the legislature has given rise to the term ‘delegated legislation’ ,
and the thought that such legislation is subordinate to the laws made
by the legislature has resulted in another term “subordinate
legislation”.

 The term delegated legislation may be used in two senses :
 1. Exercise of the legislative power delegated to a subordinate
authority by the legislature ; or
 2. The subsidiary rules that are made by the subsidiary authority in
pursuance of the power delegated to it by the legislature.
 Reasons for development –
 Pressure upon parliamentary time.
 The subject matter of modern legislation is very often of a technical
nature.
 Impossible to foresee all contingencies and local conditions for which
provisions must eventually be made.
 Is valuable because it provides for a power of constant adaptation to
unknown future conditions without the necessity of amending
legislation.
 This practice permits the utilization of lessons learnt from
experience.
 In a modern State , there are many occasions when there is a sudden
need of a legislative action . For many such needs , delegated
legislation is the only convenient or even possible remedy.
 It is vital for the Parliament to arm the executive Government to
meet occasions of emergency which affect the whole nation.

What is a bye-law?
 A bye-law is a law made by a local authority to regulate
itself, in accordance with the powers conferred by or
delegated to it under a statute. Bye-laws may be
established by entities such as a business corporation, a
neighborhood association, or depending on the
jurisdiction, a municipality.
 Origin - Old Norse - Swedish word by, meaning village –
town laws.
 Common bye-laws include vehicle parking and stopping
regulations, animal control, licensing, noise, business
regulation, and management of public recreation areas.

What are municipal bye-laws?
 Municipal bye-laws are public regulatory laws which apply in
a certain area.
 The main difference between a bye-law and a law passed by a
national/federal or regional/state body is that a bye-law is
made by a non-sovereign body, which derives its authority
from another governing body, and can only be made on a
limited range of matters.
 A local council or municipal government derives its power to
pass laws through a law of the national or regional
government which specifies what things the town or city may
regulate through by-laws.
 A municipal bye-law is no different than any other law of the
land, and can be enforced with penalties, challenged in court
and must comply with higher levels of law. Municipal bye-
laws are often enforceable through the public justice system,
and offenders can be charged with a criminal offence for
breach of a bye-law.
 A municipality has a general power to pass any bye-laws for
the purposes of the municipality that it considers expedient
in relation to the [municipality’s spheres of jurisdiction.

Drafting bye-laws
• There are 3 types of bye-laws: main byelaws; amending bye-
laws which are used when changes materially affect the
bylaw in principle or substance; and revision bye-laws which
can be used when a municipality needs to make limited
types of changes to a bylaw.
 Drafting bye-laws is usually the responsibility of the Chief
Administrative Officer (CAO) or a person delegated that
function.
 Bye-laws should be drafted in plain and simple language to
ensure that they are easily understood and enforceable.
 bye-laws require preliminary analysis:
 Background –What problem is being addressed?
 Objective –What does the proposed bylaw intend to do
about the issue?
 Options –How can the problem be fixed?

Parts of a Bylaw
 Title - Use the full title of the municipality on the bylaw.
 Bylaw Number - It is a best practice to use a logical sequence
when numbering bye-laws and include the year that the
bylaw was written and a consistent and uniform numbering
and/or lettering system for sections, subsections, paragraphs,
and sub-paragraphs in the bye-laws.
 Sub-Title to Describe Purpose – brief statement of the
bylaw’s purpose. A purpose clause is intended to provide a
better understanding of the legislative intent of the council
and resolve any possible ambiguities in the bylaw.
 Example:
 WHEREAS, under the provisions of the Municipal
Government Act, a council may pass bye-laws respecting
Business, Business activities, and persons engaged in Business,
and provide for a system of licensing including any or all of
the matters listed therein;

 Enactment
 Definitions - Terms that are particular to the bylaw must be
defined.
 Consider the WHIB questions:
 W–who, what, where, when
 For example, "The bylaw applies to all persons who is a cat
owner in the Town of Anywhere."
 H–how, how much
 I–if, if not
 B–but
 General Rules and Special Provisions - These should be
drafted carefully, being well organized, clear and complete.
There must be authority in legislation or regulation for each
provision in the bylaw. Each statement should be clear and
precise enough that everyone is able to determine what they
must or must not do in order to comply with it. Try to keep
sentences short, simple and concise, using plain language
and clear formatting.

 For example, “No person shall engage in or operate a
Business in the City unless the person holds a Business
License authorizing them to engage in or operate that
Business.“
 Penalty Clause
 Example: “Any person who is in contravention of this
Bylaw is guilty of an offence and is subject to receive a
fine of amount $300.00 for the first offence.”
 “Where a Business License has expired and the Business
is still in operation, the person is guilty of an offence
under this bye-laws.”

Points of substance
 The matter of the bye-laws should be strictly within the
scope of the section of the Parent Act which confers
powers to make bye-laws.
 The manner of making and publication of bye-laws as
prescribed by the Parent Act should be strictly adhered
to.
 Bye-laws should be certain.
 Bye-laws should not be repugnant to the Act under which
they are made, or to the provisions of any other statute
or the general principals of law.
 Bye-laws should not be unreasonable.

Grounds of challenge
 Ultra-vires;
 Discrimination;
 Bad faith;
 Vagueness;
 Infringement of fundamental rights;
 Repugnancy
 Fairness.
 Procedural formalities – certain bye-laws require
approval or confirmation by an authority superior to the
municipality and provisions which purport to protect the
bye-laws.

1. Exceeding the municipality’s statutory jurisdiction;
 Conflicting with regional legislation;
 Conflicting with national legislation.
2. if the legislation expressly provides that the municipality may
do so; or
 where the authorization to discriminate is a necessary
implication by exercising the municipal power.
3. Passing bylaws with inordinate speed;
 Dispensing with normal practices and procedures;
 Withholding information from affected parties.
4. inadequate notice of prohibitions; or
 indistinct standards.
5. Freedom of conscience and religion
 Freedom of expression
 Right to trade
 Life, liberty and security of the person
 Equality rights

Buddhu vs Municipal Board And
Ors
AIR 1952 All 753
 It is nowhere laid down in the Act that the inhabitants of
the Municipality shall have the right to slaughter such
cattle or that the Municipal Board cannot prohibit the
inhabitants to slaughter such cattle. The question really
is whether the Municipal Board has been given the
power to prohibit the slaughter of cattle. It can be in the
exercise of such a power that rules or bye-laws can be
framed. No such power has been specifically conferred
on the Municipal Board under any section of the Act.

 Nagpur Kshatriya Khattik Samaj
vs
Corporation Of The City Of Nagpur
 AIR 1959 Bom 112