Appointment Of Non-Elected Member Of Corporation As Mayor: Calcutta HC Upholds Amendment To Kolkata Municipal Corporation Act [Read Judgment]

The Calcutta High Court on Friday upheld the validity of the amendment to the Kolkata Municipal Corporation Act, 1980, permitting 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.

One Belquis Begum had challenged the vires of the amendment introduced by the state, contending that such an appointment of Mayor to the corporation is neither contemplated nor authorised under Article 243R of the Constitution of India.

Justice Debangsu Basak held that the amendment is within the legislative competence of the state legislature deriving its powers from Article 246 of the Constitution of India. The court also observed that 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 months from 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," the court said.

Drawing parallels with a similar process of appointment of ministers, the court further added: "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 court finally dismissed the petition holding that the amendment is within the competence of the legislature.

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