The Supreme Court Wednesday sought a response from the office of lieutenant governor on a plea of the Delhi government seeking quashing of nomination of 10 members to the Municipal Corporation of Delhi by the LG.
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 elected dispensation and its council of ministers.
A bench comprising Chief Justice D Y Chandrachud and Justices P S Narasimha and J B Pardiwala took note of the submissions of senior advocate A M Singhvi, appearing for the Delhi government, and issued notice to the Office of Lieutenant Governor through its principal secretary for April 10.
Last month, the top court had ensured the holding of poll for mayor and deputy mayor by making it clear that the 10 nominated members of the Municipal Corporation of Delhi cannot vote in the mayoral election.
Besides seeking quashing the nominations, the plea has sought a direction to the LG 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 Municipal Corporation of Delhi 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 that 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.
