'Can A Govt Sue Through Ministers?' : Supreme Court On Delhi Govt's Plea Against LG's Appointment As SWM Committee Head

A bench of Justices Sanjay Kishan Kaul, Sudhanshu Dhulia, and Prashant Kumar Mishra was hearing a special leave petition filed by the Aam Aadmi Party-led government of the National Capital Territory of Delhi (NCTD) against a National Green Tribunal (NGT) order forming a high-level committee on solid waste management headed by the lieutenant-governor. The petition has been filed through the government’s urban development minister.

On the last occasion, Senior Advocate Abhishek Manu Singhvi, representing the Delhi government, stressed the limited role of the lieutenant governor, except in matters of public order, police, and land, drawing support from the 2018 and 2023 constitution bench judgments that affirmed GNCTD’s legislative and executive authority over administrative services, excluding specific matters. The senior counsel also mentioned that the recent amendment to the Government of National Capital Territory of Delhi Act did not touch upon the aspect of ‘solid waste management’. However, the proceedings were deferred to allow the respondents to be represented in court.

The hearing today was adjourned as well after time was sought on behalf of the respondents to file a counter-affidavit. “We will file a counter-affidavit. There's a larger issue at play than beyond what seems to the eye,” the counsel told the bench.

During the brief courtroom exchange, Justice Mishra also expressed surprise that the petition had been filed through a minister. The judge said, “I have never seen this kind of…through minister…Can a government sue or be sued through a minister? Cannot be. No government can sue or be sued through its ministers.”

The respondents’ counsel chimed in at this juncture, “As a matter of fact, in the case pending before the constitution bench, we have taken this objection.”

Ultimately, adjourning the hearing, Justice Kaul pronounced –

“Learned counsel for the lieutenant governor and the Union of India states that there is more than meets the eye and therefore, a counter-affidavit will have to be filed. Counter-affidavit to be filed within two weeks. Rejoinder, if any, is to be filed within two weeks thereafter. List after six weeks.”

Background

The Delhi government and the lieutenant governor have been engaged in a protracted war of attrition over the division of authority and sharing of power in the national capital. In February this year, the National Green Tribunal appointed Lieutenant Governor VK Saxena as the head of a solid waste monitoring committee to oversee solid waste management in Delhi, further intensifying the face-off between the ruling Aam Aadmi Party (AAP) and Raj Niwas.

Aggrieved by the tribunal’s decision, the Delhi government approached the Supreme Court, arguing that the LG’s appointment as the head of the committee infringed upon the constitutional provisions that limited the role of the lieutenant-governor in the state’s local governance matters, as well as the principle of federalism. It was also argued that this decision encroached on an elected government’s authority, particularly in the realm of making budgetary allocations, with reference to Entry 6 (public health, sanitation and solid waste management) of the Twelfth Schedule of the Constitution that outlined the powers, authority, and responsibilities of the municipalities. The petition states:

“The executive power for matters relating to local governance lies exclusively with the state government under the Constitution, except to the extent limited by an express parliamentary law. The LG is only a nominal figurehead except in areas of police, order and land where they exercise their powers in lieu of the power designated by the Constitution…The remedial steps as suggested by the NGT such as setting up new waste processing facilities, augmenting existing waste processing facilities and remediation of legacy waste sites are all which require budgetary allocations that are authorised by the Delhi government. Hence, the role of the elected government becomes extremely necessary in this regard.”

Case Details

Government of NCT of Delhi v. Office of the Lieutenant Governor of Delhi & Anr. | Civil Appeal No. 5388 of 2023