Supreme Court Issues Notice On Delhi Government's Plea Against LG Appointing 10 Nominated Members To MCD

The Supreme Court on Wednesday (March 29) issued notice in Delhi Government's petition seeking the quashing of notifications through which the Lieutenant Governor (LG) of Delhi appointed ten nominated members to the Municipal Corporation of Delhi (MCD) on his own initiative, and not on the aid and advice of the Council of Ministers. The plea heard by a bench comprising CJI DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala is now listed for 10th April 2023. 

The petition argues that the nominations by the LG in his own discretion, without the aid and advice of the Council of Minister is against the constitutional scheme. As per the petition, the appointments have been made under Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, 1957 (“DMC Act”), which provides that the Municipal Corporation of Delhi shall include, apart from the elected councillors, ten persons of not less than 25 of age and who have special knowledge or experience in municipal administration, “to be nominated by the Administrator”. The petition submits that–

"It is pertinent to note that neither the section nor any other provision of law says anywhere that such nomination is to be made by the Administrator in his discretion. As such, under the scheme of Article 239AA of the Constitution, the word “Administrator” must necessarily be read as Administrator / Lieutenant Governor, acting on the aid and advice of the Council of Ministers, and the Lieutenant Governor was bound to make the nominations on the aid and advice of the Council of Ministers."

To substantiate the submission, the petition also cites the judgement of the Constitution Bench of Supreme Court in State (NCT of Delhi) v. Union of India (2018), as per which Article 239AA provides that the elected government of the NCT of Delhi has exclusive executive powers over all subjects in the State and Concurrent List, apart from the three excepted subjects of ‘public order’, ‘police’ and ‘land’. As per the petition, in the present case, the power of nominations fall under Entry 5 of the State List i.e. ‘Local Government’, which does not relate to any of the excepted subjects.

The petition further argues that the procedure followed in clearing the file for the nominations was also violative of the Transaction of Business Rules, as amended in 2021 as per which a proposal must originate from the elected Government, and be placed before the Lieutenant Governor for his opinion through the Chief Secretary/Chief Minister. Following this, the LGmust record his views on the proposal within seven days and in case of any difference of opinion between the LG and the Minister of a department, the LG "shall strive to settle the issue by way of dialogue and discussion within a period of fifteen working days." 

Thus, the petition contends that the only two courses of action open to the LG were–

1. Accept the proposed names recommended to him for nomination to MCD by the elected government or;

2. Differ with the proposal, and refer the same to the President.

"It was not open to him at all to make nominations on his own initiative, completely circumventing the elected government," states the petition.

Senior Advocate Dr Abhishek Manu Singhvi appeared for the GNCTD. The petition was filed through Advocate on Record Shadan Farasat.

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

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