MCD Mayor Polls : Nominated Members Can't Vote, Holds Supreme Court; Election To Be Notified In 24 Hours

Ending a major controversy over the election of Mayor of Municipal Corporation of Delhi, the Supreme Court on Friday held that nominated members of the municipal corporation cannot vote in the elections for mayor.

The Court also held that nominated members cannot vote either in the elections for Deputy Mayor and Standing Committees. Also, the election of the Mayor has to precede the election of Deputy Mayor. The Court held so while deciding a petition filed by AAP leader Shelly Oberoi. Although the MCD elections were held in December 2022, the mayoral elections were stalled after the dispute between the AAP and BJP over allowing nominated members to vote.

A bench comprising Chief Justice of India DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala relied on Article 243R of the Constitution and Section 3(3) of Delhi Municipal Corporation Act, 1957 to hold that persons nominated by administrator do not have the right to vote.

"The prohibition on nominated members exercising the right to vote in terms of S 3(3)(b)(1) shall apply to the first meeting where the mayor and the deputy mayor are to be elected", the bench ordered.  The bench rejected the arguments of the Lieutenant Governor of Delhi and the Municipal Corporation of Delhi that nominated members are entitled to vote.

The bench issued the following directions :

• At the first meeting of the MCD, an election shall be initially held for the post of Mayor and in that election members who are nominated shall not have the right to vote
• Upon the election of the Mayor, the Mayor shall act as Presiding Authority for conducting the election of Deputy Mayor and members of Standing Committee, at which also the prohibition on the nominated members to vote shall continue.
• Notice convening the first meeting of the Municipal Corporation shall be issued within 24 hours. The notice shall indicate the first meeting of the Municipal Corporation at which the election of the Mayor should be held.

Senior Advocate Dr AM Singhvi, assisted by Advocate Shadan Farasat, appearing for the petitioner, submitted that as per Article 243R of the Indian Constitution, as well as its mirroring provision- Section 3(3) of the DMC Act of 1957,  nominated persons cannot vote. He added that as per Regulation 7 of the DMC (Procedure & Conduct of Business) Regulations, the mayor had to preside over the elections for the deputy mayor and the members of the Standing Committee. Thus, he argued that the mayor had to be elected first and then elections for deputy mayor as well as standing committee members could be held. Accordingly, the elections for these posts could not be held simultaneously.

Additional Solicitor General Sanjay Jain, appearing on behalf of the MCD, drew a distinction between meetings and the first meeting of the municipal corporation. He stated– "The first meeting is the foundational meeting which is held to bring into existence the corporation itself- the entire corporation, not just the councillors. And in the first meeting everyone can vote. Once the mayor is elected, only then corporation kicks in." This argument was also forwarded by Solicitor General Tushar Mehta, who was appearing for the LG who submitted that as per Section 33 of the DMC Act, 1957, all members could vote in the first meeting.

Senior Advocate Ranjit Kumar, appearing for the opposition Mayor candidate, also supported the arguments of LG and MCD.

Case Title : Shelly Oberoi and other vs Office of Lieutenant Governor of Delhi

Citation : 2023 LiveLaw (SC) 119

For Petitioner(s) Dr. A M Singhvi, Sr. Adv. Mr. Shadan Farasat, AOR Mr. Amit Bhandari, Adv. Ms. Hrishika Jain, Adv. Mr. Shourya Dasgupta, Adv. Ms. Mreganka Kukreja, Adv. Mr. Aman Naqvi, Adv.

For Respondent(s) Mr. Tushar Mehta, SG Mr. Kanu Agrawal, Adv. Mr. Padmesh Mishra, Adv. Mr. Sanjay Kr.Tyagi, Adv. Mr. Arkaj Kumar, Adv. Mr. Shreekant Neelappa Terdal, AOR Mr. Sanjay Kumar Jain, A.S.G. Mrs. Garima Prashad, Sr. Adv. Mr. Nishit Agrawal, AOR Ms. Kanishka Mittal, Adv. Ms. Vanya Agrawal, Adv. Mr. Maninder Singh, Sr. Adv. Mr. Gaurav Sharma, AOR Mr. Dhawal Mohan, Adv. Mr. Prateek Bhatia, Adv. Mr. Prabhas Bajaj, Adv. Mr. Paranjay Thripathi, Adv. 2 Mr. Ranjit Kumar, Sr. Adv. Mr. Neeraj, Adv. Mr. Amit Tiwari, Adv. Mr. Aman Jha, Adv. Mr. Surender Gupta, Adv. Mr. Rishi Tutu, Adv. Ms. Megha Sharma, Adv. Ms. Akanksha Gupta, Adv. Mr. Shoumendu Mukherji, AOR

Summary - Supreme Court holds that nominated members cannot vote in the election of Mayor of Municipal Corporation of Delhi

Constitution of India - Article 243R-The Constitution has imposed a restriction in terms of which nominated members who are brought in on account of their special knowledge or experience in Municipal administration do not have the right to vote- The same restriction finds statutory recognition in Section 3(3)(b)(i) of the Delhi Municipal Corporation Act. The above provisions indicate that persons who are nominated under the sub-clause shall not have the right to vote in the meetings of the Corporation. The Constitution and the Act place value on their experience but the right to vote is not granted to them at meetings of the Corporation - Para 11

Delhi Municipal Corporation Act- Delhi Municipal Corporation (Procedure and Conduct of Business) Regulations- These provisions make it abundantly clear that the election of the Mayor has to be held first. The elected Mayor is then required to preside over the election of the Deputy Mayor as the presiding authority. Consequently, with this clarification, it must be noted that the election of the Mayor shall be conducted first in the first meeting of the Municipal Corporation of Delhi. Once the Mayor is elected, the elected Mayor shall be the presiding authority for the purpose of the election of the Deputy Mayor - Para 12.

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