IMPORTANT POINT
Appointment/Nomination of Aldermen in Delhi Municipal Corporation – Lt. Governor is intended to act as per mandate of statute and not to be guided by aid and advice of Council of Ministers.

JUDGMENT

PAMIDIGHANTAM SRI NARASIMHA, J.

1. Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, 1957 [Hereinafter referred to as the ‘DMC Act’ and ‘DMC’ for Delhi Municipal Corporation.] provides that the Lieutenant Governor² [After the establishment of Legislative Assembly for the Union Territory of Delhi, the Administrator is redesignated as Lieutenant Governor.] of National Capital Territory of Delhi³ [Hereinafter referred to as NCTD.] shall nominate 10 persons with special knowledge in municipal administration to the DMC. The question for our consideration is whether the Lt. Governor can exercise that power of nomination as a statutory duty attached to his office or he is bound by the aid and advice of the Council of Ministers of NCTD as provided in Article 239AA(4) of the Constitution.

2. Facts: Before we take up a detailed analysis of the law and precedents on the subject, a short reference to the facts leading to the filing of the present writ petition is necessary to understand the contextual relevance of the issue under consideration. Delhi Municipal Corporation is composed of: (a) councillors chosen by direct elections from the wards⁴ [Under Section 3(3)(a)] and (b) persons represented through nominations⁵ [Under Section 3(3)(b)].

3. In the recent elections to the DMC held on 4th December, 2022, Aam Aadmi Party obtained simple majority by winning 134 out of 250 wards and Bharatiya Janata Party came second winning 104 wards. By the end of the month, i.e., 02.01.2023, Municipal Secretary, DMC sent a note, countersigned by the Commissioner, DMC that Lt. Governor will nominate ten persons to the Corporation as provided under Section 3(3)(b)(i) of the DMC Act. In fact, on the very next day, by his order dated 03.01.2023, the Lt. Governor nominated ten members and it was notified in the Delhi Gazette. There was a minor correction and the same was carried out and the corrigendum was also published in the Gazette on the next day, i.e., on 04.01.2023.

4. Challenging the legality and propriety of nominations by the Lt. Governor, the instant writ petition was filed by the Government of NCTD under Article 32 for a Writ of Certiorari to quash the notifications dated 03.01.2023 and 04.01.2023 and also for a direction to the Lt. Governor to nominate persons under Section 3(3)(b)(i) only in accordance with the aid and advice of the Council of Ministers.

5. Submissions: Dr. Abhishek Manu Singhvi, learned Senior Advocate assisted by Shri Shadan Farasat, AOR, appearing on behalf of the Government of NCTD submitted that the ‘Lt. Governor can act in his discretion only when it is expressly provided by a law or where no other interpretation of a legal provision is possible’. After taking us through the mandate of Article 239AA, in particular, sub-Article (4), read in conjunction with Section 41 of the Government of National Capital Territory Act of 1991, ⁶ [Hereinafter referred to as GNCTD Act.] he submitted that these provisions mirror Article 163 of the Constitution, requiring the Governor to act only on the aid and advice of the popularly elected Government. For this purpose, the principles laid down in Samsher Singh v. State of Punjab⁷ [(1974) 2 SCC 831] and Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly⁸ [(2016) 8 SCC 1] were relied on to put forth the point that the satisfaction of the Lt. Governor in the cabinet system of Government is the satisfaction of his Council of Ministers.

5.1 Referring to Section 3(3)(b)(i) of the DMC Act, it is also argued that the provision cannot be construed as expressly vesting any discretion in the Lt. Governor to nominate persons to the Corporation. He further submitted that the issue, if any, is conclusively decided by the Constitution Bench decisions of this Court in State (NCT of Delhi) v. Union of India, ⁹ [(2018) 8 SCC 501] and the recent pronouncement in the case of Government of NCT of Delhi v. Union of India¹⁰ [(2023) 9 SCC 1].

6. Shri Sanjay Jain, Lea