NEW DELHI: The Supreme Court on Wednesday issued notice to the office of Delhi's Lieutenant Governor on a plea by Delhi government challenging the appointment of 'aldermen' to the Municipal Corporation of Delhi.
A bench of Chief Justice D Y Chandrachud and Justices P S Narasimha and J B Pardiwala sought a response from the office of Delhi LG after hearing senior advocate Abhishek Manu Singhvi, advocate Shadan Farasat on behalf of AAP government.
The court fixed the matter for hearing on April 10.
The Delhi government sought quashing of orders of January 3 and 4, 2023, and consequent gazette notifications, whereby the LG appointed 10 nominated members to the Municipal Corporation of Delhi (MCD) on his own initiative, and not on the aid and advice of the council of ministers.
This is the first time since Article 239AA came into effect in 1991 that such a nomination has been made by the Lieutenant Governor completely by-passing the elected government, thereby arrogating to an unelected office a power that belongs to the duly elected government, the plea said.
It also contended that nominations in question have been made under Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, 1957 (DMC Act), which provided that the MCD should include, apart from the elected councillors, ten persons of not less than 25 years of age and who have special knowledge or experience in municipal administration, to be nominated by the administrator.
Neither the section nor any other provision of law says anywhere that such nomination is to be made by the administrator in his discretion, it said.
It is a settled position of constitutional law for the last 50 years that the powers conferred on a nominal and unelected head of state are to be exercised only under the aid and advice of the council of ministers.
Such an express requirement is completely lacking under either the Constitution or the statutory scheme under the DMC Act in the present case, and as such the nominations made by the Lieutenant Governor are per se unconstitutional and illegal," it added.
The plea pointed out that the DMC Act does not vest any discretion in the LG in the matter of nominating members to the MCD.
"The only two courses of action open to him (LG) were to either accept the proposed names duly recommended to him for nomination to MCD 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," the Delhi government said.
It sought a direction to the LG's office to nominate members to the Municipal Corporation of Delhi under Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, 1957, in accordance with the aid and advice of the Council of Ministers.
