BREAKING| LG Can Nominate Members To Delhi Municipal Corporation Without Delhi Govt's Consent : Supreme Court

In a significant development, the Supreme Court today held that the Lieutenant Governor (LG) of Delhi has the power to nominate aldermen to the Municipal Corporation of Delhi without the aid and advice of the Delhi Government.

The Court ruled that the power was a statutory power flowing from the Delhi Municipal Corporation Act and hence the Governor need not act as per the aid and advice of the Delhi Government. Since it was a statutory power given to the LG and not an executive power of the Government, the LG was expected to act as per the statutory mandate and not as per the aid and advice of the Delhi Government.

"The power to be exercised is a statutory duty of the LG and not the executive power of the State," the Court held.

The judgment was delivered on the Delhi Government's petition seeking quashing of notifications through which the Delhi LG appointed 10 members to MCD on his own initiative, instead of on the aid and advice of the Council of Ministers.

A bench comprising CJI DY Chandrachud and Justices Narasimha, JB Pardiwala had heard the case and reserved its decision on May 17, 2023. Justice PS Narasimha pronounced the verdict today.

The judgment states that the verdict in the second GNCTD case clarified that if the Parliament makes law in relation to a subject in List 2(State List) or List 3(concurrent list), the executive power of the GNCTD will be limited to that extent.

It further observes that Section 3(3)(b)(1) of the DMC Act provides that the LG can nominate ten persons with special knowledge in municipal administration to the DMC. This power was introduced as per the amendment introduced in 1993.

Law requires the Governor to act as per his discretion

The Court has underscored that the law enacted by the Parliament (DMC Act) required the Governor to exercise the power to nominate. Hence, it satisfied the exceptions contemplated under Article 239AA(4) of the Constitution whereby the Governor can act on his discretion.

The Court has rejected the argument that this power was a "semantic lottery" since it was specifically conferred by the 1993 amendment.

Justice Narasimha read out the conclusion of the judgment as follows :

"The statutory power under Section 3(3)(b)(i) to nominate persons of special knowledge was vested in the Lieutenant Governor for the first time by the 1993 amendment of the DMC Act 1957 to incorporate Constitutional changes brought through Article 239AA and the introduction of Part IX related to Municipalities. The power to nominate is therefore not a vestige of the past or the power of administrator that is continuing by default. It is made to incorporate the changes in the Constitutional structure.

The text of Section 3(3)(b) of the Act as amended in 1993 expressly enables the LG to nominate persons having special knowledge to the corporation. The power expressed by the statute in the name of LG, also seen in the context of other provisions, demonstrates the statutory scheme in which the power and duties are distributed amongst authorities under the Act. The context in which the power is located confirms that the LG is intended to act as per the mandate of the statute and not guided by the aid and advice of the council of ministers. The power to be exercised is a statutory duty of the LG and not the executive power of the State."

Background

Through its petition, the Delhi government claimed that the LG could not circumvent the elected government and make appointments to MCD on his own initiative. It contended that the word "Administrator" contained in Article 239AA of the Constitution (Special Provisions with respect to Delhi) had to be read as Administrator/LG "acting on the aid and advice of the Council of Ministers".

It was further the GNCTD's case that the LG had two options - (i) To accept the proposed names recommended to him for nomination to MCD by the elected government or (ii) To differ with the proposal and refer the same to the President.

Senior Advocate Dr AM Singhvi (appearing for the Delhi Government) argued that since 30 years, the practice was that the LG never appointed without the aid and advice of ministers. Further, he placed reliance on the Constitution Bench decision of the Supreme Court in State (NCT of Delhi) v. Union of India (2018) as per which, Article 239AA provides that the elected government of NCT of Delhi has exclusive executive powers over all subjects in the State and Concurrent List, apart from the 3 excepted subjects of 'public order', 'police' and 'land'. It was argued that the power of nominations fell under Entry 5 of the State List i.e. 'Local Government', which does not relate to any of the excepted subjects.

On the other hand, the then Additional Solicitor General Sanjay Jain (appearing for the LG) sought to draw distinction between the role of the LG under Article 239AA vis-a-vis his role as an Administrator when it came to local body nominations as per the Delhi Municipal Corporation (DMC) Act. It was submitted that "aid and advice" of the Delhi Government was not necessary for exercising the statutory power specifically conferred on the Administrator/LG under the DMC Act.

While hearing the case, CJI Chandrachud orally remarked that with a power to nominate members to MCD, the LG can effectively destabilize the democratically elected MCD. This was in light of the fact that the aldermen get appointed to Standing Committees and have voting power.

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