What is source of L-G’s power to nominate MCD aldermen?: Supreme Court

The bench was hearing a plea by the Delhi government seeking quashing of the orders and notifications dated January 1 and January 4, 2023 issued by the L-G nominating 10 persons under the Delhi Municipal Corporation (DMC) Act, 1957 as nominated members of the MCD. The plea also sought directions to the L-G to nominate members to the MCD under the DMC Act in accordance with the aid and advice of the council of ministers in the Legislative Assembly of the Government of the National Capital Territory of Delhi (GNCTD).

The Delhi government’s plea relied on the 2018 Constitution bench judgment of the SC which says the L-G is bound by the aid and advice of the Council of Ministers of GNCTD in relation to matters within the legislative scope of the territory.

Appearing for the Delhi government, senior advocate A M Singhvi said the L-G had “illegally nominated” the 10 members. “This is very sad, in last 30 years since 1993, this is the first time the L-G has directly nominated (members). It has always been on aid and advice,” he added.

Opposing the Delhi government plea, ASG Jain said, “The concept of aid and advice in the context of exercise of power by the administrator as regards MCD Act, they are two different statutory regimes.” He added that “organically, the argument is that the governance of Delhi under Article 239AA (which grants special status to Delhi) and the GNCTD Act is not at all a factor in the governance model of municipal corporations”.

The law officer referred to a counter affidavit filed by the L-G, which said “the governance of municipalities is independent of the regime of governance of the elected state governments”, adding that the exercise of powers by L-G as Administrator of MCD is distinct from that which requires him to act in accordance with the aid and advice of the council of ministers.

Tracing the origin and evolution of the law in respect of Delhi and Municipalities, he said “MCD is an institution of self- government and the role of the administrator within the meaning of MCD Act is not a mirror image of what is provided either under Article 239AA (which grants special status to Delhi) or under the GNCTD (Government of the National Capital Territory of Delhi) Act.”

The affidavit stated that Delhi Municipal Corporation Act, 1957 was amended in 1993 and the L-G was made administrator, adding the part which said “the aldermen shall be chosen by the councillors from among persons who are qualified to be councillors but are not councillors themselves” was omitted.

The Act was further amended by the Delhi Legislative Assembly in 2011 for trifurcation of MCD…” but it “did not disturb the power of Administrator to nominate alderman under section 3 (3)”, it said.

The affidavit further stated: “The LG is referred to as the Administrator in the DMC Act and has been identified as a source of authority, distinct from the central government and the GNCTD.”

The arguments, which remained inconclusive Tuesday, will continue on Wednesday.