Delhi LG empowered to nominate aldermen to MCD: SC

New Delhi, The Delhi lieutenant governor is empowered to nominate 10 aldermen in the MCD and he is not bound by the aid and advice of council of ministers as the Delhi Municipal Corporation Act was enacted by Parliament, the Supreme Court has said.

The top court's landmark verdict, which was pronounced on Monday on the power of Delhi LG with regard to the nomination of experts to the civic body, was uploaded in the apex court's website on Tuesday.

A bench of Chief Justice D Y Chandrachud and Justices P S Narasimha and J B Pardiwala said section 3 of the Delhi Municipal Corporation Act, as amended in 1993 by Parliament, provides that the LG of National Capital Territory of Delhi shall nominate 10 persons with special knowledge in municipal administration.

Justice Narasimha, writing the verdict for the bench, referred to Article 239AA which deals with the fact that the LG has to act according to the aid and advice of council of ministers and said the act of nomination to the MCD does not fall under its purview and is rather covered under the exception clause.

"Having examined the provisions of the Act, we are of the opinion that section 3 of the DMC Act is a Parliamentary enactment vesting the power of nomination of persons with special knowledge in municipal administration with the LG. The power is to be exercised as a statutory duty of the LG and not as the executive power of the GNCTD ," the bench said in its 27-page verdict.

The bench said the DMC Act required the LG to exercise the power of nomination and "it satisfies the exception contemplated under Article 239AA to act in his discretion as he is by or under any law so required to act."

The authoritative pronouncement on LG's power has come as a shock to the Aam Aadmi Party -led Delhi government and the MCD as they have been vehemently arguing that the LG has to act as per the aid and advice of the elected government in nominations.

The top court, during the hearing on the plea of the A government, had observed that giving the LG the power to nominate aldermen will effectively mean that he can destabilise a democratically elected MCD because these aldermen get appointed to the standing committees.

As a consequence of the judgment, the aldermen will hold the key with regard to disbursement of funds by the standing committees of the MCD.

Justice Narasimha rejected the submission of the Delhi government that the position of LG is akin to that of a governor in a state under the Constitution.

"There is a clear distinction between the discretionary power of the Governor under Article 163 and that of the Lt. Governor under Article 239AA. While Article 163 requires Governor of a State to act on the aid and advice of the council of ministers, 'except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion', the exception in so far as the LG, under Article 239AA, is concerned, he will act in his discretion, 'in so far as he is required by or under any law'," it said.

The bench said Article 239AA of the Constitution takes into account the unique position of NCTD and, therefore, adopts the mandate of 'law' as a distinct feature for exercise of discretion.

The bench also rejected another argument of the Delhi government that vesting of power in the name of administrator/LG in Section 3 is nothing but a 'semantic lottery', as the word 'administrator' has been used in many pre-1991 legislations which relate to subjects that now fall within the purview of the legislative assembly of NCTD.

It said the 1993 Act carries out as many as 136 amendments to the principal DMC Act of 1957 to give effect to a scheme by which powers, duties and responsibilities are allocated to the authorities, depending on the functions that they perform under the Act.

"This also includes comprehensive amendments to Section 3 of the Act. For instance, while the power of nomination of aldermen is given to the LG under Section 3, the power of nomination of MLAs is given to the Speaker of the House under this very section.

"It is therefore incorrect to suggest that the power vested in the LG continued by default or 'Semantic Lottery'... This submission is therefore rejected as it is oblivious of the 1993 amendment to the Act," the bench said, adding that the power of LG to nominate is brought into the statute for the first time with the introduction of the 1993 amendment to the DMC Act.

Justice Narasimha said, "We also reject the submission that the word 'administrator' is a relic of the pre-1991 legislation when there was no Legislative Assembly for Delhi, for the reason that Section 3 was introduced only in 1993 to give effect to the two constitutional amendments."

The top court said the DMC Act, as amended in 1993, gives effect to two constitutional developments which include "recognition and grant of quasi-statehood to Delhi with the introduction of Articles 239AA and 239AB, the other relates to grant of a Constitutional status to the municipalities".

The MCD has 250 elected and 10 nominated members.

In December 2022, the A defeated the BJP in the civic elections, winning 134 wards and ending the saffron party's 15-year run at the helm of the MCD. The BJP won 104 seats and the Congress finished a distant third with nine seats.

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