The State Legislature has the power to allow the elected Councilors of a Corporation to appoint an individual as the Mayor subject to such individual getting elected within a period of six months from the date of his initial appointment, provided that such amendment does not fill up any seat of the Corporation by a non-elected person.

DEBANGSU BASAK, J.

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

2. By the impugned amendment, Section 6 of the Kolkata Municipal Corporation Act has permitted the elected Councilors 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.

3. 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 impugned amendment is a deviation from such express provisions of the Constitution. Therefore, the impugned amendment is bad in law.

4. 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 the Constitution, 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 243 R 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.

5. Referring to the provisions of the Kolkata Municipal Corporation Act 1980, learned Senior Advocate appearing for the 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