Delhi LG's Position Not Akin To That Of A State's Governor : Supreme Court In MCD Alderman Case

While holding that Delhi Lieutenant Governor can nominate members to its municipal corporation without the aid and advice of the Delhi Government, the Supreme Court recently observed that an LG's power is different from that of Governor of a State.

The bench of CJI DY Chandrachud and Justices Narasimha, JB Pardiwala drew the distinction on the basis of Articles 163 and 239AA of the Constitution.

The judgment authored by Justice PS Narasimha rejected the argument raised by Senior Advocate Dr Abhishek Manu Singhvi on behalf of the Delhi Government that the LG has to act as per the aid and advice of the council of ministers.

"In view of the distinct constitutional position as it exists for NCTD(National Capital Territory of Delhi), we cannot agree with the submissions of Dr. Singhvi that the position of Lt. Governor is akin to that of a Governor in a State under Article 163 of the Constitution. There is a clear distinction between the discretionary power of the Governor under Article 163 and that of the Lt. Governor under Article 239AA(4). While Article 163 requires Governor of a State to act on the aid and advice of the Council of Ministers, 'except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion', the exception in so far as the Lt. Governor, under Article 239AA(4) is concerned, he will act in his discretion, 'in so far as he is required by or under any law'. Article 239AA of the Constitution takes into account the unique position of NCTD and therefore adopts the mandate of 'law' as a distinct feature for exercise of discretion".

In its analysis, the Court referred to Article 239AA of the Constitution, as per which Council of Ministers is to aid and advise the LG in relation to matters where the Delhi Legislative Assembly has power to make laws. It was observed that sub-Article (4) of the same provides an exception to the rule, that is where the LG is, by or under any law, required to act in his discretion.

With regard to Delhi, reference was made to Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, which was introduced by an amendment in 1993 (post-introduction of Article 239AA in 1991). For context, Section 3 of DMC Act reads thus:

"3. ...(1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be a Corporation charged with the municipal Government of Delhi, to be known as the Municipal Corporation of Delhi.

(2) The Corporation shall be a body corporate with the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and may by the said name sue and be sued.

(3) (a) The Corporation shall be composed of the councillors;

(b) the following persons shall be represented in the Corporation, namely:—

(i) ten persons, who are not less than 25 years of age and who have special knowledge or experience in municipal administration, to be nominated by the Administrator".

It was noted that the DMC Act is a law enacted by Parliament, relating to Entry 5 of the State List. Section 3 thereof deals with establishment of the Corporation and requires the LG to nominate 10 persons for representation in the MCD.

Relying on the 2023 Constitution Bench decision in Government of NCT of Delhi v. Union of India, the Court reiterated that if the Parliament makes a law in relation to any subject in List II (State List) and List III (Concurrent List), the executive power of GNCTD shall be limited by the law enacted by the Parliament.

After examining the provisions, it was concluded:

"Having examined Section 3(3)(b)(i) of the DMC Act empowering the Lt. Governor to nominate persons having special knowledge to the DMC, we will underscore the point that it is law made by Parliament. As the law requires the Lt. Governor to exercise the power of nomination, it satisfies the exception contemplated under Article 239AA(4) to act in his discretion as he is by or under any law so required to act...The statutory regime makes it clear that the entrustment of the powers is intended to be exercised by Lt. Governor as a statutory duty."

The judgment also recorded that the power of nomination is exercised by the LG as a statutory duty. "The context in which the power is located confirms that the Lt. Governor is intended to act as per the mandate of the statute and not to be guided by the aid and advice of the Council of Ministers", it added.

Case Title: Govt of NCT of Delhi v. Office of Lieutenant Governor of Delhi, WP(C) No. 348/2023

Citation : 2024 LiveLaw (SC) 551

Click here to read the judgment