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IN A setback to the Arvind Kejriwal government, the Supreme Court ruled on Monday that the Delhi Lieutenant Governor has the power to nominate persons with expert knowledge to the Municipal Corporation of Delhi (MCD), and is not dependent on the aid and advice of the Council of Ministers.
A bench of Chief Justice of India D Y Chandrachud and Justices P S Narasimha and J B Pardiwala, which had reserved its verdict in the matter on May 17, said in its order, “The statutory power under Section 3(3)(b)(i) to nominate persons of special knowledge was vested in the Lt Governor for the first time by the 1993 amendment to the Delhi Municipal Corporation Act, 1957 to incorporate the Constitutional changes through Articles 239AA, 239AB and introduction of Part IX-A relating to municipalities. The power to nominate is therefore not a vestige of the past or a power of the Administrator that is continued by default. It is made to incorporate change in the Constitutional structure of NCTD.”
The judgment came on the plea of the AAP government challenging Lieutenant Governor V K Saxena’s move to nominate 10 aldermen to the MCD without the aid and advice of the Council of Ministers.
Reading out the operative part of the judgment, Justice Narasimha referred to Section 3(3)(b)(i) of the DMC Act, which provides that the Lieutenant Governor shall nominate 10 persons, who are not less than 25 years of age and who have special knowledge or experience in municipal administration, to the MCD and “the question for our consideration is whether the L-G carries the power of nomination as statutory duty attached to the office or is bound by the aid and advice of the Council of Ministers”.
The court then went on to cite the judgment of the Supreme Court Constitution bench in the matter of control of services wherein it was said that if Parliament makes law in relation to any subject in state or concurrent list, the executive power of the Government of the National Capital Territory of Delhi shall be limited to the law enacted by Parliament.
The court pointed out that Senior Advocate A M Singhvi, appearing for the Delhi government, had argued that vesting power in the name of the administrator under Section 3(3)(b)(i) “is nothing but a semantic lottery as the word administrator has been used in many pre-1991 legislation which relate to subjects that now fall within the purview of the legislative assembly”.
The ruling said: “It is… incorrect to suggest that the power vesting in the L-G, constituted by default or semantic lottery.”
“The text of Section 3(3)(b) of the Act as amended in 1993 expressly enabled the L-G to nominate persons having special knowledge to the corporation…,” the court said. “The context in which the power is located, confirms that the L-G 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 ruling said the power to nominate is brought into the statute for the first time with the introduction of the 1993 amendment.
In its plea, the Delhi government sought quashing of the orders and notifications dated January 1, 2023, and January 4, 2023, issued by the L-G, naming 10 persons as nominated members of MCD under the DMC Act, 1957. It also sought directions to the L-G to nominate members “in accordance with the aid and advice” of the Council of Ministers.
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