Whether Councillors can Elect a Non-member as Mayor / Chairman / President [CASE LAW]

Constitution of India - Art. 243R - Municipal Corporation Act, 1980 (Kolkata) - S. 6 - permitted the elected Councillors of the Corporation to appoint any individual as the Mayor subject to such individual getting elected within a period of six months from the date of his initial appointment - Whether Valid ?

Held:- The amendment impugned herein, is a proviso that is being added to the existing Section 6. It empowers the elected Councillors to elect an individual who is not a member of the Corporation to be the Mayor. It requires such individual so appointed to vacate the office if such individual, after appointment, is not elected to be a member of the Corporation. Therefore, the elected members can elect an individual to be a Mayor, under the impugned amendment, who is otherwise qualified to stand for an election of a Councillor and who does not suffer from any disqualification to contest an election for a Councillor. The concept that, a non-elected member is appointed to a post of governance, on the condition that, such person gets himself elected to the elected body, within a time frame specified, is ingrained in the Constitution itself. There is nothing in the Constitution to suggest that, the three tier governments as introduced by Part IX or Part IXA or Part IXB cannot accommodate such a concept. As in the case under Article 74 and 163, the appointment permitted by the impugned amendment is to a post and not to a seat. It is not diluting the requirement under Article 243R that all seats in a Municipality must be filled up by elected members. The impugned amendment, does not militate against the provisions of Part IXA of the Constitution.

Article 243R of the Constitution contemplates that, a Municipality can be composed of both elected and nominated members. Article 243(2)(a) of the Constitution contemplates four categories Constitution lays down that, the persons referred to in Paragraph (i) shall not have the right to vote in the meetings of the Municipality. The Constitution is silent as to the voting powers of the persons mentioned in Paragraphs (ii), (iii) and (iv) of Article 243R(2)(a) of the Constitution. Article 243R, therefore, prohibits a State Legislature from bestowing any voting rights to the category of persons described in Paragraph (i) of Article 243R(2)(a). The State Legislature in the instant case, by the impugned amendment, has not acted in violation of such prohibition made under Article 243R of the Constitution of India. It has not, by the impugned amendment, allowed any non-elected member to have voting rights. The impugned amendment does not fill up any seat of the Corporation by a non-elected person. Rather the person appointed as the Mayor, which is a functionary of the Corporation as defined in Section 3 of the Act of 1980, must get himself elected within 6 months of his appointment, to continue in such post, if appointed by virtue of the impugned amendment. The mandate of Article 243R that all seats of a Municipality are to be filled up by elected members is not violated by the impugned amendment. To my understanding, there is no prohibition on the State Legislature under Article 243R of the Constitution relating to the composition of Municipalities to enact the impugned amendment. The impugned amendment cannot be said to be colourable legislation as the legislature has not done something indirectly which it could not have done directly. It could not have filled up a seat in the Corporation without election. It has not done so by the impugned amendment. Since the impugned amendment is within the competence of the legislature, the motives impelling it to pass the impugned amendment becomes irrelevant. If the impugned amendment was beyond the legislative competency, motive would be again irrelevant as even if the impugned amendment was made with the best of the intentions, if it was beyond the legislative competence, it would be ultra vires the Constitution. Therefore, on the touchstone of Article 243R of the Constitution, it cannot be said that, the impugned amendment is contrary to such provisions of the Constitution of India.

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction Appellate Side

DEBANGSU BASAK, J.

Judgment on : January 04, 2019

W.P. No. 23831 (W) of 2018

Belquis Begum v. The State of West Bengal & Ors.

For the Petitioner : Mr. Bikash Ranjan Bhattacharya, Sr. Advocate Mr. Samim Ahmed, Advocate Mr. Sabyasachi Chatterjee, Advocate Mr. Firdous Samim, Advocate Mr. Arka Maiti, Advocate Mr. Utsav Dutta, Advocate For the Kolkata Municipal Corporation : Mr. Saktinath Mukherjee, Sr. Advocate Mr. Asoke Banerjee, Sr. Advocate Mr. Aloke Kumar Ghosh, Advocate Mr. Arijit Dey, Advocate For the State : Mr. Kishore Dutta, Ld. Advocate General Mr. Abhratosh Majumdar, Ld. Addl. Advocate General Mr. Jishnu Chowdhury, Advocate Mr. Sirsanya Bandopadhyay, Advocate Mr. Arka Kr. Nag, Advocate

DEBANGSU BASAK, J.:-

The petitioner has challenged the vires of the amendment to the Kolkata Municipal Corporation Act, 1980.

By the impugned amendment, Section 6 of the Kolkata Municipal Corporation Act has permitted the elected Councillors of the Corporation to appoint any individual as theMayor subject to such individual getting elected within a period of six months from the date of his initial appointment.

Learned Senior Advocate appearing for the petitioner has drawn the attention of the Court to the stand taken by the State in its affidavit. According to him, the State is justifying the impugned amendment on a plea that cannot be accepted.

The State’s contention that, the election of the person appointed as the Mayor by virtue of the impugned amendment, to a seat of the Corporation, is merely deferred, is without any basis. He has submitted that, deferent of election to the Corporation is neither contemplated nor authorised under Article 243R of the Constitution of India. Such a plea militates against the spirit of Article 243R. It militates against the concept of local self-government by elected representatives, as introduced to the Constitution by the 74th Amendment. A Municipality or a Corporation is governed by the provisions of Part IXA of the Constitution of India. Article 243R of the Constitution of India, contemplates governance of a Municipality or a Corporation, as the case may be, by Members who are directly elected to it. The impugnedamendment is a deviation from such express provisions of the Constitution. Therefore, the impugned amendment is bad in law.

Referring to Article 246 of the Constitution of India, Learned Senior Advocate appearing for the petitioner has submitted that, the power to legislate a matter relating to a Municipality or a Corporation is laid down in Article 243R. The areas within which the State Legislature can legislate in respect of the affairs of a Municipality or a Corporation are specified therein. Schedule VII List II Entry No. 5 of the Constitution of India, therefore, has to be read in such context. The 74th Amendment of the Constitution of India has brought about a paradigm shift so far as a Municipality or a Corporation is concerned. The previous regime before the 74th amendment allowed a Municipality or a Corporation to be governed by unelected persons. Such a regime has been done away with by the 74th Amendment. The 74th Amendment has prescribed a time period within which the existing laws relating to a Municipality or Corporation must be suitably modified to bring it in tune with that of the provisions of theConstitution, introduced by the 74th Amendment failing which, such provisions of the State law, contrary to the provisions of the Constitution, would stand as null and void. He has drawn the attention of the Court to the provisions to Articles 243P, 243Q and 243R of the Constitution of India. He has submitted that, Article 243R of the Constitution defines the municipal area. The Constitution of a Municipality is dealt with by Article 243R. Article 243R deals with the Constitution of a Municipality or a Corporation. It specifies that seats in a Municipality or the Corporation are required to be filled up by direct election. No other method of appointment to the body governing a Municipality or a Corporation is provided in the Constitution. It is not open to a State Legislature to provide for any other manner or method for a person to become an elected member of a Corporation other than by way of election or in the manner or method as prescribed under Article 243R.

According to him, such provision supersedes the powers under Article 246 read with Schedule VII List II Entry No. 5.

Referring to the provisions of the Kolkata Municipal Corporation Act 1980, learned Senior Advocate appearing forthe petitioner has submitted that, such provisions must be read and construed in the context of the Constitution of India.

He has drawn the attention of the Court to Sections 3 to 13, 28 and 31 of the Kolkata Municipal Corporation Act, 1980 and has submitted that, the elected Councillors of the Corporation are required to elect a person from amongst the elected members to be the Mayor. The election of the Mayor is by the elected Members of the Corporation from amongst the elected members. State Government has nothing to do in such election. Therefore, no person other than a person who is elected as a member of the Corporation can be elected by the elected Councillors to be the Mayor of the Corporation. In support of such contention, he has drawn the attention of the Court to the provisions of Sections 7, 8, 13, 28 and 31 of the Act of 1980. According to him, the impugned amendment is a piece of colourable Legislation. The State Legislature through the impugned amendment has introduced a provision to the Act of 1980 whereby the requirement of Article 243R of the Constitution, that, seats of a Corporation must be filled up by elected members, is sought to be done away with or at leastdiluted. The same is not permissible. The impugned amendment should be struck down as colourable legislation.

Learned Senior Advocate for the petitioner has submitted that, a Mayor gets to discharge various powers and functions.

If a person, who is not elected to the Corporation is appointed as a Mayor, even for a limited period, then such a person gets to discharge the powers and functions given to a Mayor under the Act of 1980. Such unelected person is not answerable to anybody. He is not answerable to the elected members of the Corporation as he is not elected thereto. The elected members of the Corporation cannot summon such person as such a person is not an elected member of the Corporation. He cannot attend the meeting of the elected members of the Corporation.

Therefore, an unelected person if appointed as a Mayor will remain unanswerable for his acts and deeds as a Mayor. The Act of 1980 gives wide powers to a Mayor. He has to discharge various functions as laid down under the Act of 1980. The actions of a Mayor, who is unelected to the Corporation, would therefore remain unchecked.Learned Senior Advocate appearing for the petitioner has submitted that, the powers given to the President under Article 74 and the Governor under Article 164 of the Constitution are different to those which are sought to be bestowed upon the elected members of the Corporation by the impugned amendment. The powers under Article 74 available to the President and powers under Article 163 available to a Governor of a State cannot and must not be equated with the powers vested with the elected members of the Corporation under the impugned amendment. He has drawn the attention of the Court to Article 74 of the Constitution of India and has submitted that, the President acts on the basis of the aid and advice of the Council of Ministers. Similarly, the Governor is also required to act on the basis of the aid and advice of the Council of Ministers of the State. He has submitted that, a Minister appointed by the Governor holds the post at the pleasure of the Governor. In the present case the impugned amendment gives unfettered powers to the elected members of the Corporation to appoint an unelected person as the Mayor.He has submitted that, the Constitution contemplates three tiers of Government. The first tier is the Central Government, the second tier is the State Government and the third tier is the Municipality and Corporation. Matters relating to the third tier were introduced by the 74th Amendment.

Learned Senior Advocate appearing for the petitioner has submitted that, even the governance of the co-operative society is done by elected Members. Therefore, there is nothing in the Constitution which permits the State Legislature to make the impugned amendment.

In support of his contentions that, there is a marked difference between elected and unelected Members, he has relied upon 2004 Volume 5 Supreme Court Cases page 409 (Ramesh Mehta v. Sanwal Chand Singhvi & Ors.). He has relied upon 2006 Volume 7 Supreme Court Cases page 1 (Kuldip Nayar & Ors. v. Union of India & Ors.) in support of his contention that, the impugned amendment should be interpreted pervasively. The Court must test the legality of the impugned amendment on the touchstone of the Constitutional provisions. He has relied upon 1975 Supp. SCC page1(Indira Neheru Gandhi v. Raj Narain) in support of his contention. Relying upon 2015 Volume 8 Supreme Court Cases 1 (Vipulbhai M. Chaudhary v. Gujarat Co-operative Milk Marketing Federation Ltd. & Ors.) learned Senior Advocate appearing for the petitioner has submitted that, it is the duty of the Constitutional Court to read a statute based on Constitutional prescription. In the present case, as the impugned amendment allows a non elected person to be a part of the governance of a Corporation, the same should be held to be against the requirement of Article 243R which prescribes that an elected body must govern a Corporation. He has relied upon 1996 Volume 6 Supreme Court Cases page 734 (S.P. Anand v. S.D. Devegowda), 2001 Volume 7 Supreme Court Cases 231 (B.R. Kapur v. State of Tamil Nadu) and 2011 Volume 8 Supreme Court Cases 737 (State of Tamil Nadu v. K. Shyam Sundar) on the powers and extent of Articles 74 and 163 of the Constitution.

Learned Senior Advocate appearing for the petitioner submitted that, the Court should be pleased to quash theimpugned amendment. If the same is left outstanding, it will have an adverse repercussion in the whole country.

Learned Advocate General appearing for the State has submitted that, the vires of a statute can be successfully challenged, if, the statute violates any fundamental right of the petitioner or it is contrary to any constitutional provision or if, the statute is beyond the legislative competence. No other ground is available to declare a statute ultra vires the Constitution. In support of his contentions, he has relied upon 2003 Volume 4 Supreme Court Cases page 104 (Public Services Tribunal Bar Association v. State of U.P. & Anr.) He has submitted that, in the facts of the present case, the petitioner does not contend that, any fundamental rights of the petitioner stands violated by reason of the impugned amendment. Therefore, the petitioner has to substantiate that, the impugned amendment is beyond the legislative competence of the State Legislature.

Relying upon Ramesh Mehta (supra) learned Advocate General for the State has submitted that, the right to beelected and the right to elect are statutory rights. No statutory right of the petitioner stands violated.

So far as legislative competence is concerned, learned Advocate General for the State has submitted that, Article 243R contemplates two categories of members of a Municipality or a Corporation. One category is the elected members. Such elected members have a right to vote. The other category is the non-elected members. Out of the category of non-elected members, Article 243R contemplates four divisions. In respect of one of the divisions being Article 243R(2)(a)(i) the Constitution lays down that, such a category will not have voting rights. So far as the balance three divisions, that is, Article 243R(2)(a)(ii)(iii) and (iv) are concerned, the Constitution is silent as to whether the persons in such categories would enjoy voting powers or not. He has submitted that, the power of the State Legislature to legislate on matters relating to Municipality or Corporation is governed by Article 246 of the Constitution of India. The State Legislature derives powers from Article 246. Schedule VII, List II, Entry No. 5 is not the source of power. Article 243R,according to the learned Advocate General provides certain enabling provisions, which permits the State Legislature to legislate on the subject. According to him, the State Legislature has sufficient competence to legislate with regard to a Municipality or a Corporation. The impugned amendment is not beyond the legislative competence of the State Legislature.

Relying upon All India Report 1955 Supreme Court page 540 (Maharaj Umeg Singh & Ors. v. State of Bombay & Ors.), All India Report 1964 Supreme Court page 1903 (Union of India etc. v. Gwalior Rayon Silk Mfg. (Wvg.) Co.

Ltd., Birlanagar, Gwalior & Anr.), All India Report 1963 Supreme Court page 953 (Maharaja Shree Umaid Mills Ltd. v. Union of India & Ors.) and All India Report 1967 Supreme Court page 40 (Firm Bansidhar Premsukhdas v. State of Rajasthan) learned Advocate General for the State has submitted that, unless, the Constitution prohibits the State Legislature from legislating on a subject enumerated in List II Schedule VII of the Constitution, no fetter to legislate can be put upon the State Legislature.Relying upon 1995 Suppl. 1 Supreme Court Cases page 596 (Jilubhai Nanbhai Khachar & Ors. v. State of Gujarat & Anr.) and 1989 Volume 3 Supreme Court Cases page 488 (M/s. Ujagar Prints & Ors. (II) v. Union of India & Ors.), learned Advocate General appearing for the State has submitted that, widest meaning should be given to Article 246 and the power to legislate by the State Legislature. In the facts of the present case, there is nothing, to suggest that, there is any fetter on the State Legislature to make the impugned legislation.

Referring to Article 243R of the Constitution, learned Advocate General has submitted that, the same does not put any fetter on the State Legislature to legislate on the subject of Corporation or Municipality. Article 246 of the Constitution read with Schedule VII, List II, Entry No. 5 allows the State Legislature to legislate in respect of a Municipality or a Corporation. He has submitted that, two other states had provided for election of more than one member from a ward of a Municipality. The vires of such legislation was challenged unsuccessfully before the respective High Courts. In supportof such contentions, he has relied upon All India Report 2010 Gujarat page 161 (Pankajsinh Waghela v. State Election Commission through Election Commissioner & Ors.) and 2018 SCC Online (Bom.) page 3795 (Kiran Kadam v. The State of Maharashtra & Ors.).

Learned Advocate General appearing for the State has submitted that, the Court should lean in favour of presumption of constitutionality of the legislation rather than against it. He has submitted that, twin test of challenge of vires to a statute must be satisfied before the Court can pronounce the legislation to be ultra vires the Constitution of India. In this regard, he has drawn the attention of the observations made by the Court in Jilubhai Nanbhai Khachar & Ors. (supra). He has submitted that, the writ petition should be dismissed.

Learned Advocate appearing for the Corporation has adopted the submissions made by the learned Advocate General on behalf of the State.

Learned Senior Advocate appearing for the petitioner has dealt with the contentions and the authorities cited on behalfof the State. He has submitted that, the petitioner is contending that, the impugned amendment is contrary to the provisions of the Constitution. Therefore, the case of the petitioner falls within the four corners of the scope of enquiry of a Constitutional Court with regard to the vires of a statute.

He has drawn the attention of the Court to Part IXA of the Constitution and has submitted that, Part IXA provides an entire code so far as Municipalities are concerned. In particular, he has drawn the attention of the Court to Article 243W and 243R. He has submitted that, Part IXA of the Constitution for all intent and purposes makes the provisions of Schedule VII List II Entry No. 5 as redundant so far as the State Legislature is concerned, with regard to the Municipalities. He has drawn the attention of the Court to the twelfth schedule of the Constitution and submitted that, the areas in which, the State Legislature is required to legislate so far as Municipalities are concerned, are stated therein. Such provisions in Part IXA of the Constitution are empowering provisions. The State cannot make any legislation beyond the powers prescribed under Part IXA of the Constitution. The impugned amendment, is beyond the powers prescribed underPart IXA of the Constitution and is therefore ultra vires the Constitution.

Learned Senior Advocate appearing for the petitioner has submitted that, the scope of challenge to a piece of legislation is different to those obtaining prior to the pronouncement of 1973 Volume 4 Supreme Court Cases page 225 (Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr.). In support of his contentions, he has relied upon various passages from Indira Neheru Gandhi (supra).

He has relied upon ILR 1998 Volume 2 Punjab and Haryana page 370 (Raj Pal Chabra v. State of Haryana & Ors.) in support of the contention that, the Punjab and Haryana High Court had construed the provisions of Article 243R, and has held that, the Municipal Laws must conform thereto.

The issues that have arisen for consideration of the present writ petition are as follows:- (i) Is the impugned amendment beyond the legislative competence?(ii) Is the impugned amendment ultra vires the provisions of the Constitution? (iii) To what relief or reliefs are the parties entitled to? As noted above, the subject matter of challenge is the amendment to Section 6 of the Kolkata Municipal Corporation Act, 1980.

Section 6 of the Kolkata Municipal Corporation Act, 1980 before the impugned amendment was as follows:- 

“6. Election of Mayor and Chairman:- The elected members of the Corporation shall elect from amongst themselves,-- (a) at the first meeting of the Corporation after a general election,-- (i) one member to be the Mayor who shall be a whole-time functionary, and (ii) one member to be the Chairman, and (b) so often a vacancy in the office of the Mayor or the Chairman, as the case may be, occurs by reason of death, resignation, removal or otherwise and within one month of the occurrence of such vacancy, one member to be the Mayor or the Chairman, as the case may be, who shall assume office forthwith after taking such oath of secrecy as may be prescribed Provided that no elected member of the Corporation shall be eligible for election to the post of the Mayor unless he declares in writing under his hand that on being elected, he shall be the whole-timefunctionary of his office and that during the period for which he holds, or is due to hold, such office, he shall not hold any office of profit unless he has obtained leave of absence from his place of employment, or he shall not carry on or be associated with any business, profession or calling, in such manner as shall interfere or likely to interfere with due exercise of his powers or due performance of his functions or due discharge of his duties.” 

Section 6 of the Act of 1980 has been amended by the Kolkata Municipal Corporation (Second Amendment) Act, 2018. Section 2 of the Act of 2018 amends the provisions of Section 6 of the Act of 1980. Section 2 of the Act of 2018 is under challenge in the present writ petition as being ultra vires the Constitution of India. Section 2 of the Act of 2018 is as follows:- 

“2. In section 6 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the principal Act), - (i) the following proviso shall be added:- “Provided that the elected members of the Corporation may also elect an individual who is not a member of the Corporation to be the Mayor provided that he gets himself elected to be a member of the Corporation within six months from the date of the election, failing which, he shall cease to be the Mayor of the Corporation.”; (ii) in the existing proviso,-(a) for the word “Provided”, the words “Provided further” shall be substituted; (b) after the words “the Corporation” the words “or individual” shall be inserted.” 

Kolkata Municipal Corporation Act came into effect from December 28, 1981. It repealed the Kolkata Municipal Act, 1951. The Act of 1980 underwent few amendments. The Kolkata Municipal Corporation (Second Amendment) Act, 2018 particularly Section 2 thereof is the subject matter of the present writ petition. The Act of 1980 is divided into 9 parts with 38 chapters. The Second Amendment Act of 2018 incorporated an amendment to Section 6 of the Act of 1980 which is in Part II, Chapter II of the Act of 1980. Part II of the Act of 1980 deals with Constitution and Government of the Kolkata Municipal Corporation. Chapter II of the Act of 1980 deals with the Municipal authorities. Section 6 of the Act of 1980 deals with election of Mayor and Chairman. Section 3 of the Act of 1980 stipulates the Municipal authorities. Mayor is one of the Municipal authorities as identified in Section 3(c) of the Act of 1980. Section 4 of the Act of 1980 defines the Corporation. Section 5 deals with the Constitution of theCorporation. Section 6 of the Act of 1980 in its unamended version required the elected members of the Corporation to elect from amongst themselves, one member to be the Mayor.

In other words, the Mayor must be a person who is elected to the Corporation as a Councillor. The impugned amendment allows the elected councillors of the Corporation to elect an individual who is not a member of the Corporation to be the Mayor. The impugned amendment stipulates that, such a person must get himself elected to be a member of the Corporation within 6 months from the date of the election, failing which, he shall cease to be the Mayor of the Corporation.

The impugned amendment is under challenge primarily on the ground of legislative incompetence and being contrary to the provisions of the Constitution particularly Article 243R thereof.

Constitutional validity of an Act made by the legislature can be challenged only on two grounds as has been held in Public Services Tribunal Bar Association (supra). It has held in paragraphs 26 and 27 as follows:-

“26. The constitutional validity of an Act can be challenged only on two grounds, viz., (i) lack of legislative competence; and (ii) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provisions. In State of Andhra Pradesh v. McDowell & Co. & others, 1996 (3) SCC 709, this Court has opined that except the above two grounds there is no third ground on the basis of which the law made by the competent legislature can be invalidated and that the ground of invalidation must necessarily fall within the four corners of the aforementioned two grounds.

27. Power to enact a law is derived by the State Assembly from List II of the Seventh Schedule of the Constitution. Entry 41 confers upon a State Legislature the power to make State Public Services: State Public Services Commission. Under this Entry, a State Legislature has the power to constitute State Public Services and to regulate their service conditions, emoluments and provide for disciplinary matter etc. The State Legislature had enacted the U.P. Public Services Tribunals Act, 1976 in exercise of the power vested in it by Entry 41 of List II of seventh schedule. Power to enact would include the power to re-enact or validate any provision of law in the State Legislature provided the same falls in an entry of List II of the Seventh Schedule of the Constitution with the restriction that such enactment should not nullify a judgment of the competent court of law. The legislative competence of the State to enact the U.P.Public Services Tribunal has not been questioned in these appeals. The challenge put forth to various amendments made is that the same are violative of Articles 14 and 16 of the Constitution being arbitrary as they are onerous and work inequitably. In the present appeals legislative action of the State is under challenge. Judicial system has an important role to play in our body politic and has a solemnobligation to fulfil. In such circumstances it is imperative upon the courts while examining the scope of legislative action to be conscious to start with the presumption regarding the constitutional validity of the legislation. The burden of proof is upon the shoulders of the incumbent who challenges it. It is true that it is the duty of the Constitutional Courts under our Constitution to declare a law enacted by the Parliament or the State Legislature as unconstitutional when the Parliament or State Legislature had assumed to enact a law which is void, either from want of constitutional power to enact it or because the constitutional forms or conditions have not been observed or where the law infringes the fundamental rights enshrined and guaranteed in Part III of the Constitution.” 

Public Services Tribunal Bar Association (supra) has held that, it is imperative upon the Courts while examining the scope of legislative action to start with the presumption regarding the constitutional validity of the legislation. The burden of proof is on the person challenging the vires to establish it as ultra vires.

Kuldip Nayar & Ors. (supra) has considered the amendments made in the Representations of Peoples Act, 1951 through the Representation of the People (Amendment) Act, 2003 which came into effect from August 28, 2003. It has held that, the impugned amendment to the Act of 1951 did notinfringe any Constitutional provision. The impugned amendment was found not to be violative of the fundamental rights guaranteed under Part III of the Constitution. Legislative competence was not in dispute. In this regard, it has held in Paragraph 468 as follows:- 

“468. The impugned amendment does not infringe any Constitutional provision. It cannot be found to be violative of fundamental rights in Part III of the Constitution. It is not disputed that Parliament has legislative competence to enact the amending Act. In these facts and circumstances, the impugned legislation cannot be struck down as unconstitutional.” 

From the authorities noted above, it can be garnered that, challenge to the vires of a statute can be successfully sustained, if it is substantiated that, the impugned provision is, beyond the legislative competence of the legislature making the impugned provisions, or the impugned provision violates the fundamental rights guaranteed under Part III of the Constitution of India or is contrary to the provisions of the Constitution of India. When legislative competence is questioned, the Court is required to find out in which entry of which list the statute falls. In doing so, the Court is requiredto give a liberal interpretation of the entry in the concerned list. It might so happen that, the statute may fall within two or more entries of a particular list. The Court is required to find out whether the list was within the competence of the legislature enacting the statute or not. The doctrine of violation of the basic structure of the Constitution of India applies to a Constitutional Amendment. In the facts of the present case, the petitioner has contended that, the impugned amendment is beyond the legislative competence and is violative of the provisions of the Constitution of India. The petitioner has not alleged that, fundamental rights of the petitioner stands violated.

Ramesh Mehta (supra) has considered the question whether, nominated members to the Municipality under the provisions of the Rajasthan Municipalities Act, 1959 can cast their vote for the purpose of no confidence motion against the Chairman or the Vice-Chairman of the Municipality. It has held that, the right to elect and the right to be elected is a statutory right. In the facts of the present case, the petitionerhas not contended that, any fundamental right of the petitioner stands breached by the impugned amendment.

Maharaj Umeg Singh & Ors. (supra) has considered the legislative competence of the State Legislature in a petition under Article 32 of the Constitution. It has held as follows:- 

“13. ………………………..…………….

The legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the State Legislature enjoys to legislate on the topics enumerated in the Lists II & III of the Seventh Schedule to the Constitution.…………………………………..

………………………” 

Maharaj Umeg Singh & Ors. (supra), has also considered the legislative competence of the Union Legislature.

It has held that, the legislative competence of the Union Legislature or even of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself. Unless and until there is any provision in the Constitution expressly prohibiting legislation on aparticular subject or matter, the plenary powers which the Legislature enjoys to legislate on the topics enumerated in the relevant list cannot be curtailed.

Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., Birlanagar, Gwalior & Anr. (supra) has considered Maharaja Shree Umaid Mills Ltd. (supra). It has held in paragraph 27 as follows:- 

27 “………………………………………………………….

…………

We may in this connection refer to the decision in Maharaja Shree Umaid Mills Ltd. where it was held that there was nothing in Article 295 to show that it fettered for all time to come, the power of the Union Legislature to make modifications or changes in the rights, liabilities and obligations which had vested in the Government of India. The legislative competence of the Union legislature or even of the State Legislature could only be circumscribed by express prohibition contained in the Constitution itself and unless and until there was any provision in the Constitution was no fetter or limitation on the plenary powers which the legislature enjoyed to legislate on the topics enumerated in the relevant lists. There is nothing in Article 295 which expressly prohibits Parliament from enacting a law as to income tax in territories which became Part B States and which were formerly Indian States, and such a prohibition cannot be read into Article 295 by virtue of some contract that might have been made by the then Ruler of an Indian State with any person…………………………………………….

…………………………………………………………………”

Firm Bansidhar Premsukhdas (supra) has held that, Parliament or the State Legislatures are competent to enact a law altering the terms and conditions of a previous contract or of a grant under which the liability of the Government of India or of the State Governments arise. The legislative competence of Parliament or of the State Legislatures can only be circumscribed by express provision contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter legislation on the plenary powers which the legislature is endowed with for legislating on the topics enumerated in the relevant list.

Learned Senior Advocate for the petitioner has contended that, Maharaj Umeg Singh & Ors. (supra), Maharaja Shree Umaid Mills Ltd. (supra), Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., Birlanagar, Gwalior & Anr. (supra) and Firm Bansidhar Premsukhdas (supra) had been rendered prior to Kesavananda Bharati Sripadagalvaru & Ors. (supra).

Thereafter, there has been a paradigm shift in theinterpretation of the Constitution as noted in Indira Neheru Gandhi (supra). The ratio laid down in the four authorities therefore dealing with the legislative competence, are no yardstick for the purpose of considering the impugned amendment.

Kesavananda Bharati Sripadagalvaru & Ors. (supra) has inter alia held that, a Constitutional amendment cannot destroy the basic structure of the Constitution. The doctrine of basic structure of the Constitution applies to a consideration of a Constitutional Amendment. Public Services Tribunal Bar Association (supra) and Kuldip Nayar & Ors. (supra) are pronouncements subsequent to Kesavananda Bharati Sripadagalvaru & Ors. (supra). The twin tests for a challenge to a constitutional validity of an Act were followed and applied therein to arrive at the finding as whether the law which was the subject matter of challenge, failed any of the twin tests or not.

K. Shyam Sundar (supra) has dealt with the right to education. It has held that, the constitutionality of a statute depends upon legislative competence and not legislativemotive. The doctrine of mala fides is not applicable to a legislature.

Jilubhai Nanbhai Khachar (supra) has held that, the Legislature derives its powers from Article 246 of the Constitution to legislate and not from the respective entries in the respective lists of the Seventh Schedule. It has also held that, a Court must give a broad and liberal meaning to the entries while deciding whether the impugned Act is relatable to any entry in the relevant list or not. It has held in Paragraph 7 as follows:- 

“7. It is settled law of interpretation that entries in the Seventh Schedule are not powers but fields of legislation. The legislature derives its power from Article 246 and other related Articles of the Constitution. Therefore, the power to make the Amendment Act is derived not from the respective entries but under Article 246 of the Constitution. The language of the respective entries should be given the widest scope of their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. When the vires of an enactment is impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible in favour of the legislature putting the most liberal construction upon the legislative entry so that it may have the widest amplitude. Burden is on theappellants to prove affirmatively of its invalidity. It must be remembered that we are interpreting the Constitution and when the court is called upon to interpret the Constitution, it must not be construed in any narrow or pedantic sense and adopt such construction which must be beneficial to the amplitude of legislative powers. The broad and liberal spirit should inspire those whose duty is to interpret the Constitution to find whether the impugned Act is relatable to any entry in the relevant List.” 

Dealing with legislative power M/s. Ujagar Prints & Ors. (II) (supra) has held as follows:- 

“48. Entries to the legislative lists, it must be recalled, are not sources of the legislative power but are merely topics or fields of legislation and must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense.

The expression "with respect to" in Article 246 brings in the doctrine of "Pith and Substance" in the understanding of the exertion of the legislative power and wherever the question of legislative competence is raised the test is whether the legislation, looked at as a whole, is substantially 'with respect to' the particular topic of legislation. If the legislation has a substantial and not merely a remote connection with the entry, the matter may well be taken to be legislation on the topic.” 

Raj Pal Chabra (supra) has considered the provisions of Part IXA of the Constitution in relation to the Haryana Municipal Act, 1993 as amended in 1995. It has considered the issue whether, non-elected members to a Municipality established under the provisions of the Act of 1993 has a right to vote in a motion of no confidence against a President or a Vice President. Pankajsinh Waghela (supra) has considered the constitutional validity of the notification of the State Government of Bombay allowing three persons to be elected from one constituency of a Municipality. The constitutional validity of the policy of having multi members wards in a Municipality was under challenge there. It had discussed the scheme, the statutory provisions, the Constitutional provisions for conducting of elections to the Municipality and did not find any illegality in having a multi member ward.

Kiran Kadam (supra) has considered the constitutional validity of Ordinance no. IX of 2016 and subsequently Act No. IX of 2016 of the State of Maharashtra. By such Ordinance and Act an amendment was sought to be effected to Section 5 of the Maharashtra Municipal Corporation Act by inserting a proviso to sub-Section (3) thereby permitting election of four councillors, as far as possible, but not less than three and not more than 5 councillors in the general election to the Corporation and enabling each voter to caste same number ofvotes as the number of councillors to be elected from one ward. The statutory as also the constitutional provisions relating to Municipalities were considered. It has held that the contention that, powers of a State Legislature to legislate after the 74th Amendment has to be enumerated in Part IXA of the Constitution of India is misconceived. It has also held that, the power to legislate however has to be exercised subject to the provisions of the Constitution and that, the statute has to necessarily fall in line with Part IXA of the Constitution.

Vipulbhai M. Chaudhary (supra) has considered the issue as to whether, in absence of any specific provision for removal by no confidence in the Act, Rules or even by-laws of a cooperative society, a Chairperson/ elected member can be removed by a motion of no confidence or not. It has noticed various provisions of Part IXB of the Constitution and has held that, a right to elect is not a fundamental right nor a common law right. It is a statutory right and any question relating to the election has to be resolved within the four corners of the Act. It has also held that, a cooperative society registered under the Central or the State Act is bound to function as ademocratic institution and conduct its affairs based on democratic principles. Democratic functioning on democratic principles is to be reflected in the respective acts or rules or by-laws both on principle and procedure. If not, it is for the Court to read democratic principles into the Act or Rules or by-laws. It has held that, if, there is no specific provision under the Act or Rules or by-laws for removal of an office bearer such officer bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to office.

Power of the Parliament and the State Legislatures to enact laws emanate out of Article 246 of the Constitution of India. Article 246 of the Constitution appears in Part XI of the Constitution. Article 246 of the Constitution of India is as follows:- 

“246. Subject matter of laws made by Parliament and by the Legislatures of States (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List)(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List) (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List.” 

The original Part IX was amended by insertion of a new Part IX by virtue of the 73rd Constitutional Amendment. The 73rd Constitutional Amendment was introduced in order to bring about democracy at the grass root level. Part IX of the Constitution as amended and introduced to the Constitution under the 73rd Amendment, deals with the Panchayats. Part IXA of the Constitution was introduced by the 74th Amendment. Part IXA deals with the Municipalities.

Municipalities are another branch of local bodies apart from Panchayats. Part IXA of the Constitution is part of a process of democratic decentralization of powers. It seeks to empower the local bodies with self-governance so that, a more inclusive society is brought about. It facilitates all parts of the society to have a representation in a local body as that of a Municipality.The marginalized section of the society also gets to have a representation in a local body such as a Municipality. There are 18 Articles in Part IXA dealing with the Municipalities.

Article 243P provides the definitions of the words used in Part IXA. It defines a Municipality to mean an institution of selfgovernment constituted under Article 243Q. The essential condition of a self-government is that, members elected by the electorate govern such body. Article 243Q mandates the Constitution of a Nagar Panchayat for a transitional area, a Municipal Council for a smaller urban area and a Municipal Corporation for a larger urban area. Article 243Q deals with Constitution of the Municipalities. The composition of Municipalities is provided for in Article 243R. The Constitution and composition of ward committees and other committees are dealt with in Article 243S. Article 243T provides for reservation of seats for schedule-caste and schedule-tribe in every Municipality. Article 243V specifies the disqualification of membership for being chosen as or for being a member of a Municipality. Article 243W empowers a Legislature of a State to make provisions, by law, relating to the powers, authority and responsibilities of a Municipality. Article 243X empowersthe State Legislature to authorise a Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits as may be prescribed, by law. Article 243Y to Article 243ZG deals with various other aspects of a Municipality. Chapter IXA of the Constitution, therefore, lays down a complete code so far as a Municipality is concerned.

Part IXA of the Constitution, as noted above was inserted by the 74th Amendment. Part IXA came into effect from June 1, 1993. As on that date, Article 246 of the Constitution was in vogue. The 74th Amendment inserting Part IXA to the Constitution did not amend Article 246 of the Constitution.

Article 246 of the Constitution empowers the Parliament and the State Legislature to promulgate laws in respect of any of the matters enumerated in the respective lists. The matters in respect of which, the State Legislature can enact a law are enumerated in List II of the Seventh Schedule. Entry No. 5 List II of the Seventh Schedule is as follows:- 

“5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlementauthorities and other local authorities for the purpose of local self-government or village administration.” 

Such entry relates to a local government, that is to say, the constitution and powers of Municipal Corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. In the instant case, election of a Mayor to the Kolkata Municipal Corporation is in issue. The State Legislature promulgated the impugned amendment acting in exercise of powers under Article 246, Entry No. 5 List II of the Seventh Schedule.

Part IXA of the Constitution while dealing with Municipalities provides for the composition of Municipalities and its governance. The various provisions of Part IXA of the Constitution empowers a State Legislature to promulgate laws within the matters specified in Part IXA. Such enabling powers are in addition to and not in derogation of the power of the State Legislature to legislate on List II, under Article 246 of the Constitution. The origin of power to legislate is Article 246.

Part IXA of the Constitution delineates the parameters which,a State Legislature must adhere to while legislating on the subject of a Municipality. Power to legislate under Article 246 is not impervious to the provisions of Part IXA of the Constitution. Such power is also not impervious to Part III of the Constitution. If the statute concerned is seen to infringe upon any fundamental right guaranteed in the Constitution then the Court needs to find out whether such legislation can be termed as reasonable restriction or not. In the present case, the Court is not required to undertake an exercise to find out whether the impugned amendment violates the fundamental rights guaranteed in Part III or not, as such is not the contention of the petitioner.

In the event, any law promulgated by a State Legislature, contravenes any of the provisions of the Constitution including those in Part IXA, then, the same is required to be held to be ultra vires the Constitution. The impugned amendment relates to the Kolkata Municipal Corporation. It seeks to add a proviso to the existing Section 6 of the Act of 1980. The impugned amendment is within the legislative competence of the State Legislature deriving its powers from Article 246 of theConstitution of India. It cannot be said to be in derogation of any of the parameters laid down in Part IXA of the Constitution of India. Therefore, the first issue is answered in the negative and against the petitioner.

Article 243R of the Constitution is as follows:- 

“243-R. Composition of Municipalities.- (1) Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards.

(2) The Legislature of a State may, by law, provide- (a) for the representation in a Municipality of- (i) persons having special knowledge or experience in Municipal administration; (ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area; (iii) the members of the Council of States and the members of the Legislative Council of the State registered electors within tile Municipal area; (iv) the Chairpersons of the Committees constituted under clause (5) of article 243S: Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality;(b) the manner of election of the Chairperson of a Municipality.” 

As noted above, Article 243R of the Constitution appears under Part IXA of the Constitution. Part IXA of the Constitution of India deals with Municipalities. It makes various provisions for the composition and governance of a Municipality. It empowers the State Legislature to legislate in respect of all spheres of a Municipality. There are few criteria laid down in Part IXA of the Constitution relating to Municipalities which a State Legislature must adhere to while legislating any law. In particular, one of such instances is Article 243D which requires reservation of seats to a Municipality for schedule-castes and schedule-tribes. One other instance that can be garnered from Part IXA of the Constitution is the requirement that, the seats of a Municipality must be filled up by elected members. Such requirement is prescribed in Article 243R of the Constitution.

Such a requirement is subject to the provision of Article 243T mandating reservation for schedule-castes and scheduletribes.

There are other requirements laid down in Part IXA of the Constitution which a State Legislature must adhere to. Forthe purpose of the instant matter all of such requirements need not be discussed at length.

The requirement in Article 243R that, the seats of a Municipality must be filled up by persons chosen by direct election from the territorial constituency in the Municipal area, is not infringed by the impugned amendment. The impugned amendment does not propose to empower any person to fill up any seat of the Corporation by a person who is not chosen by direct election. The impugned amendment allows the elected councillors of the Corporation to elect an individual who is not a member of the Corporation to be the Mayor. Prior to the impugned amendment, the elected councillors, elected from amongst themselves, the Mayor. The additional power given to the elected councillors, to elect any individual who is not a member of the Corporation to be the Mayor, cannot be said to infringe the Article 243R of the Constitution. It is not filling up any seat of the Corporation in any manner. Rather, the person who is not elected as a councillor, when elected to be a Mayor, by the elected councillors, will have to get himself elected within 6 monthsfrom the date of his election as a Mayor, to be a member of the Corporation, failing which, such person will cease to be the Mayor of the Corporation.

Article 74 and Article 163 of the Constitution contemplate situations where, the President or the Governor, as the case may be, may appoint any person either as the Minister of the Central Government or as the Minister of the State Government, upon such person becoming a member of the Parliament or the State Legislature as the case may be within a period of 6 months from the date of his appointment.

S.D. Devegowda (supra) has held that, Ministers of the Central Government including Prime Minister can be appointed even if such person is not a member of either House of Parliament. However, he continues to remain answerable to the House and would function on the basis of principle of collective responsibility. In the present case, if a Mayor is appointed through the mechanism of the impugned amendment, he continues to remain answerable to the Board of Councillors as he would have been, had he been appointedthrough the mechanism of the unamended Section 6 of the Act of 1980. The term of a Mayor is prescribed in Section 7 of the Act of 1980. A Mayor can be removed from by a resolution conferred by a majority of the total number of elected members of the Corporation under Section 7(c). Section 7 applies to appointees under the impugned amendment. Therefore, it cannot be said that, an appointee through the impugned amendment would be unanswerable to any person while acting as a Mayor.

B.R. Kapur (supra) has held that, a non-legislator can be appointed as the Chief Minister or a Minister. However, for such appointment, he must possess the qualifications under Article 173 and must not suffer from the disqualifications under Article 191 for membership of the legislature. The amendment impugned herein, is a proviso that is being added to the existing Section 6. It empowers the elected Councillors to elect an individual who is not a member of the Corporation to be the Mayor. It requires such individual so appointed to vacate the office if such individual, after appointment, is not elected to be a member of the Corporation. Therefore, the elected members can elect an individual to be a Mayor, under the impugned amendment, who is otherwise qualified to stand for an election of a Councillor and who does not suffer from any disqualification to contest an election for a Councillor.

The concept that, a non-elected member is appointed to a post of governance, on the condition that, such person gets himself elected to the elected body, within a time frame specified, is ingrained in the Constitution itself. There is nothing in the Constitution to suggest that, the three tier governments as introduced by Part IX or Part IXA or Part IXB cannot accommodate such a concept. As in the case under Article 74 and 163, the appointment permitted by the impugned amendment is to a post and not to a seat. It is not diluting the requirement under Article 243R that all seats in a Municipality must be filled up by elected members. The impugned amendment, does not militate against the provisions of Part IXA of the Constitution.

A person elected as a Mayor under the mechanism provided by the impugned amendment remains answerable to the elected councillors by virtue of Section 7 of the Act of1980, as is the case of a Mayor elected by the elected councillors from amongst the elected members. Section 7 of the Act of 1980 specifies the terms of office of a Mayor and the Chairman. Section 7(1)(c) of the Act of 1980 allows a Mayor to be removed from office by a resolution carried by a majority of the total member of elected members of the Corporation at a Special meeting of the Corporation called for such purpose upon a requisition made in writing by not less than one-third of the elected members of the Corporation. A person elected as a Mayor, by the mechanism of the impugned amendment holds such office till he enjoys the confidence of the majority of the elected members of the Corporation, or a period of 6 months from the date of his election as Mayor if he is not elected to a seat in the interregnum, whichever is earlier.

Article 243R of the Constitution contemplates that, a Municipality can be composed of both elected and nominated members. Article 243(2)(a) of the Constitution contemplates four categories of non-elected members to compose a Municipality. So far as Article 243R(2)(a)(i) of the Constitution is concerned, the proviso to Article 243R(2)(a) of theConstitution lays down that, the persons referred to in Paragraph (i) shall not have the right to vote in the meetings of the Municipality. The Constitution is silent as to the voting powers of the persons mentioned in Paragraphs (ii), (iii) and (iv) of Article 243R(2)(a) of the Constitution. Article 243R, therefore, prohibits a State Legislature from bestowing any voting rights to the category of persons described in Paragraph (i) of Article 243R(2)(a). The State Legislature in the instant case, by the impugned amendment, has not acted in violation of such prohibition made under Article 243R of the Constitution of India. It has not, by the impugned amendment, allowed any non-elected member to have voting rights. The impugned amendment does not fill up any seat of the Corporation by a non-elected person. Rather the person appointed as the Mayor, which is a functionary of the Corporation as defined in Section 3 of the Act of 1980, must get himself elected within 6 months of his appointment, to continue in such post, if appointed by virtue of the impugned amendment. The mandate of Article 243R that all seats of a Municipality are to be filled up by elected members is not violated by the impugned amendment. To my understanding,there is no prohibition on the State Legislature under Article 243R of the Constitution relating to the composition of Municipalities to enact the impugned amendment. The impugned amendment cannot be said to be colourable legislation as the legislature has not done something indirectly which it could not have done directly. It could not have filled up a seat in the Corporation without election. It has not done so by the impugned amendment. Since the impugned amendment is within the competence of the legislature, the motives impelling it to pass the impugned amendment becomes irrelevant. If the impugned amendment was beyond the legislative competency, motive would be again irrelevant as even if the impugned amendment was made with the best of the intentions, if it was beyond the legislative competence, it would be ultra vires the Constitution.

Therefore, on the touchstone of Article 243R of the Constitution, it cannot be said that, the impugned amendment is contrary to such provisions of the Constitution of India. The second issue is also answered in the negative and against the petitioner.The first two issues being answered in the negative and against the petitioner, no relief can be granted to the petitioner. The third is answered accordingly.

W.P. No. 23831(W) of 2018 is dismissed. No order as to costs.

Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.