Row over nomination of MCD members: SC to hear plea of Delhi govt on May 8

New Delhi: The Supreme Court on Tuesday said it will hear on May 8 a plea of the Delhi government challenging the power of the Lieutenant Governor to nominate 10 members to the Municipal Corporation of Delhi and sought the quashing of their nomination.

A bench comprising Chief Justice D Y Chandrachud and J B Pardiwala took note of the fact that a letter seeking adjournment of proceedings before it has been moved by the counsel representing the office of the LG.

“We will then list it for hearing on Monday that is May 8,” the bench said.

Solicitor General Tushar Mehta and senior advocate A M Singhvi appeared for the office of the LG and the Delhi government respectively.

The top court earlier had orally observed as to how the Lieutenant Governor (LG) can act “without aid and advice” of the council of ministers in nominating 10 members to the MCD. Prior to this, it had issued notice on the plea of the Delhi government seeking quashing of the nomination of the 10 members.

The office of the LG had said an amendment to Section 44 of the GNCTD Act (the Government of National Capital Territory Act) was made after the 2018 judgement of a constitution bench of the top court.

“In view of the amendment, a notification, which is under challenge in a separate petition, was issued,” the law officer, appearing for the LG, had said, adding the response by way of an affidavit will be filed.

Singhvi, representing the Delhi government, had opposed the submissions saying they were “patently wrong” and the constitutional interpretation of Article 239AA (which deals with Delhi) by the Supreme Court cannot be negated by amending a statute.

He had alleged the Delhi government officers were “emboldened” as they were sending the files directly to the office of the LG without first sharing them with the Delhi government.

“This way, every time we have to come to the court for relief and they are enjoying the power. The statute cannot change the constitutional interpretation,” he had said, adding strictures be passed against the Delhi government officers.

In the petition filed through lawyer Shadan Farasat, the Arvind Kejriwal government has challenged the decision of the LG to nominate the members allegedly without the “aid and advice” of the council of ministers.

Besides seeking quashing of the nominations, the plea has sought a direction to the LG's office to “nominate members to the MCD under Section 3(3)(b)(i) of the Delhi Municipal Corporation Act..., in accordance with the aid and advice of the Council of Ministers”.

“This petition has been filed by the elected government of the NCT of Delhi seeking inter alia quashing of orders dated..., and consequent gazette notifications ..., whereby the Lieutenant Governor has illegally appointed 10 (ten) nominated members to the MCD on his own initiative, and not on the aid and advice of the Council of Ministers,” the plea said.

It said neither the DMC (Delhi Municipal Commission) Act nor any other provision of law says anywhere that such nomination is to be made by the administrator in his discretion.

“This is the first time such a nomination has been made by the LG completely bypassing the elected government, thereby arrogating to an un-elected office a power that belongs to the duly elected government,” it said.

Referring to the constitutional scheme pertaining to Delhi, it said the word ‘administrator’ must necessarily be read as the administrator, who is LG here, acting on the aid and advice of the council of ministers.

The petition underlined that according to the provision of the Delhi Municipal Corporation Act, apart from the elected councillors, the MCD also had to include 10 people, above 25 years of age, having special knowledge or experience in municipal administration, which were to be nominated by the administrator.

“It is pertinent to note that neither the section (of the MCD Act) nor any other provision of law says anywhere that such nomination is to be made by the Administrator in his discretion,” the petition claimed.

It said it was a settled position of constitutional law for the last 50 years that the powers conferred on a nominal and un-elected head of state were to be exercised only under the “aid and advice” of the council of ministers, but for some “exceptional spheres” where they were expressly required by law to act in their discretion.

“Accordingly, under the constitutional scheme, the LG is bound to act on the aid and advice of the council of ministers and, if there is a difference of opinion, he may refer the matter to the President and under no circumstances does he have any independent decision-making power,” the petition claimed.

It said the only two courses of action open to the LG were to either accept the proposed names duly recommended by the elected government, or to 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. As such, the nominations made by the LG are ultra vires and illegal, and are consequently liable to be quashed,” it alleged.

The petition claimed no proposal was allowed to originate from the elected government and the file pertaining to the nomination of members was circulated to the departmental minister only on January 5, after nominations had already been made and notified.