Summary
The Supreme Court held that the Lieutenant Governor of Delhi's power under Section 3(3)(b)(i) of the Delhi Municipal Corporation Act, 1957 to nominate ten persons with special knowledge of municipal administration to the Corporation is a statutory duty vested in him by a Parliamentary law, falling within the 'by or under any law' exception in Article 239AA(4). It is not executive power of the Government of NCTD to be exercised on the aid and advice of the Council of Ministers, and the Lt. Governor's nominations of January 2023 were upheld.
Issues
- Whether the Lt. Governor must nominate persons to the Municipal Corporation of Delhi under Section 3(3)(b)(i) of the DMC Act on the aid and advice of the Council of Ministers under Article 239AA(4), or may do so as a statutory duty of his own.
- Whether the reference to the 'Administrator' in Section 3(3)(b)(i) is a relic of pre-1991 law that continued by default.
- Whether the Lt. Governor's position is equivalent to that of a State Governor under Article 163.
Provisions considered
- Article 239AA(3) and (4), Constitution of IndiaParliament may legislate on any matter in Lists II and III for NCTD and its law prevails; once it does, NCTD's legislative and executive power on that subject is limited by it. The Lt. Governor acts on aid and advice except where 'by or under any law' he is required to act in his discretion, and a Parliamentary law can be such a law. (¶¶ 11, 15, 21, 22, 37)
- Article 163, Constitution of IndiaDistinguished: the Governor's exception covers functions under the Constitution, whereas the Lt. Governor's exception under Article 239AA(4) turns on 'any law', reflecting NCTD's unique position. (¶¶ 21, 22)
- Section 3(3)(b)(i), Delhi Municipal Corporation Act, 1957Inserted by Amendment Act 67 of 1993 to give effect to Articles 239AA, 239AB and Part IXA; its text expressly vests the power to nominate ten non-voting persons with special knowledge in the Administrator (Lt. Governor), and the statutory scheme shows this is a statutory duty, not executive power of GNCTD. (¶¶ 1, 17, 29, 30, 37, 38, 39)
- Sections 2(1), 2(21A), 7, 33, 73, 77, 82, 95, 107A, 347D and other provisions allocating powers, Delhi Municipal Corporation Act, 1957Compared the functions given to the Administrator (independent functions such as appointing the Election Commissioner, deciding disqualification, convening the first meeting, appellate powers, constituting the Finance Commission) with those given to the Government of NCTD (rules, taxation sanction, tribunals, recruitment) to show a deliberate distribution of statutory powers. (¶¶ 28, 32, 33, 35, 36)
- Section 41 (with Section 44), Government of National Capital Territory of Delhi Act, 1991The nominations were held not to violate Article 239AA read with Section 41; executive power of GNCTD exercised through the Lt. Governor on aid and advice (Section 44) does not extend to a statutory duty vested in him by Parliamentary law. (¶¶ 5, 22, 40)
Held
- Once Parliament legislates on a subject in List II or III for NCTD, the Legislative Assembly is denuded of competence on that subject to the extent of the law and, since executive power is co-extensive with legislative power, so is the Government of NCTD; the powers and duties of authorities are then governed by the Parliamentary law. (¶¶ 15, 18, 22)
- The Lt. Governor is not in the same position as a State Governor under Article 163. Under Article 239AA(4) he must act in his discretion where 'by or under any law' he is required to do so, and that law may be one made by Parliament or by the Legislative Assembly. Whether a statutory power is to be exercised on his own or on aid and advice depends on the statute. (¶¶ 21, 22)
- The power to nominate under Section 3(3)(b)(i) was conferred on the Lt. Governor for the first time by the 1993 amendment, enacted to implement Articles 239AA, 239AB and Part IXA. It is not a vestige of the past or a 'semantic lottery'; the same amendment gave the parallel power to nominate MLAs to the Speaker. (¶¶ 25, 26, 27, 29, 37, 38)
- Both the text of Section 3(3)(b)(i) and its context in a statutory scheme that distributes distinct powers among the Central Government, the Government of NCTD, the Administrator, the Corporation and the Commissioner show that the Lt. Governor is meant to act under the mandate of the statute and not on the aid and advice of the Council of Ministers. (¶¶ 30, 35, 36, 37, 38)
- The nomination power is a statutory duty of the Lt. Governor, not executive power of the Government of NCTD, and falls within the exception in Article 239AA(4); the nominations notified on 03.01.2023 and 04.01.2023 did not violate Article 239AA read with Section 41 of the GNCTD Act. (¶¶ 37, 39, 40)
Result
Writ petition under Article 32 filed by the Government of NCT of Delhi dismissed; the Lt. Governor's nominations to the Municipal Corporation of Delhi upheld; no order as to costs.