L-G has to act on aid and advice of counsel of ministers: SC on nomination of 10 'aldermen' to MCD
May 12, 2023
New Delhi [India], May 12 : The Supreme Court Friday said the Lieutenant Governor (L-G) has to act on the aid and advice of the council of ministers of the Delhi government in nominating 10 'aldermen' to the Municipal Corporation of Delhi (MCD).
A five-judge Constitution bench on Thursday held that control over services in the national capital comes under the Delhi government.
On Friday, during a hearing on the Delhi government's plea challenging the appointment of 10 'aldermen' by L-G Vinai Saxena in the MCD, a bench of Chief Justice of India DY Chandrachud and Justice PS Narasimha said, "Why don't you (Additional Solicitor General Sanjay Jain, appearing for the office of the LG) advice the LG that he cannot nominate members in the MCD. He has to act as per the aid and advice of the government."
As the ASG sought to withdraw the affidavit filed by the office of L-G earlier in connection with the case, the bench permitted him to withdraw it in the wake of the top court's judgment on Thursday.
The apex court posted the matter for hearing on May 16 and permitted the L-G's office to file a fresh response to the petition.
Earlier, senior advocate Abhishek Manu Singhvi, appearing for the Delhi government, had said that public offices were sending the files directly to the office of the L-G without sharing them with the government.
After the Aam Aadmi Party (AAP) won the municipal elections, the L-G appointed 10 'aldermen' that were opposed by the Delhi government.
The petition of the Delhi government sought quashing of the orders dated January 3 and 4 whereby the L-G nominated 10 members of the MCD.
The Lieutenant Governor "illegally" appointed 10 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 stated.
This is the first time since Article 239AA came into effect in 1991 that such a nomination was 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 Arvind Kejriwal-led Delhi government stated in its plea.
It sought direction "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."
"It is pertinent to note that neither the section nor any other provision of law says anywhere that such nomination is to be made by the Administrator in his discretion. As such, under the scheme of Article 239AA of the Constitution, the word "Administrator" must necessarily be read as Administrator / Lieutenant Governor, acting on the aid and advice of the Council of Ministers, and the Lieutenant Governor was bound to make the nominations on the aid and advice of the Council of Ministers," the plea added.
In the present case, the Lieutenant Governor has not been vested with any discretionary authority to make nominations to the MCD under either a constitutional provision or any statutory provision, the Aam Aadmi Party said.
"Accordingly, the only two courses of action open to him 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. As such, the nominations made by the Lieutenant Governor are ultra vires and illegal, and are consequently liable to be quashed," the plea added.
