Paragraph numbers below are the court’s original numbering, recovered from the source text.
28. The DMC Act, as amended in 1993 (by Act 67/93) recognizes five authorities exercising distinct powers and duties under the Act. They are the, i) Central Government, ii) Government of NCTD, iii) Administrator, iv) Corporation, and v) the Commissioner. These authorities are also defined under the Act. Section 2(21A) defines ‘Government’ as ‘the Government of National Capital Territory of Delhi’, ‘Administrator’ is defined under Section 2(1) as ‘the Lt. Governor of the National Capital Territory of Delhi’, the ‘Corporation’ is defined under Section 2(7) as ‘the Municipal Corporation of Delhi’ and finally the ‘Commissioner’ is defined under Section 2(6) as ‘the Commissioner of the Corporation appointed under Section 54 of the Act’.
29. The (Amendment) Act carries out as many as 136 amendments to the principal Act 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(3)(b)(i) of the Act. For instance, while the power of nomination of Aldermen is given to the Lt. Governor under Section 3(3)(b)(i), the power of nomination of MLA’s is given to the Speaker of the House under this very Section. It is therefore incorrect to suggest that the power vested in the Lt. Governor continued by default or ‘Semantic Lottery’. In fact, the power to nominate is brought into the Statute for the first time with the introduction of the 1993 amendment to the DMC Act. This submission is therefore rejected as it is oblivious of the 1993 amendment to the Act. The ‘Text’ and the ‘Context’ of Section 3(3)(b)(i) of DMC Act:
30. We will now examine Section 3(3)(b)(i) and also the ‘context’ in which it is located with other provisions of the Act to gather the true purpose and intention of the Parliament. The text of the provision is clear. Section 3(3)(b)(i) provides that ‘ten persons to be nominated by the Administrator’.
31. It is now necessary to refer to the statutory scheme involving power, functions and duties of the Lt. Governor and that of the Government of NCTD in order to appreciate the true intendment behind Section 3(3)(b)(i), i.e., whether the power is to be exercised by the Lt. Governor on the aid and advice of the Council of Ministers or it is a statutory duty to be exercised at its own discretion as the Lt. Governor. 230
32. Provisions of the DMC Act imposing certain duties on the Lt. Governor are as follows: (i) Section 3(3)(b)(i) provides that ten persons who have special knowledge and experience in municipal administration are to be nominated by the Administrator. (ii) Section 7 relates to the duty, superintendence, direction and control of elections by the Election Commissioner and the Administrator is given the duty to appoint the Election Commissioner. The other power relates to a duty to maintain the integrity of the elections. (iii) Section 33 relates to the duty to decide if any councillor has become subject to disqualification. The duty is entrusted to the Administrator and the Section provides that “the question shall be referred to the decision of the Administrator and his decision shall be final”. Sub-Section 4 of the same Section provides that before giving any decision on the question, the Administrator shall obtain the opinion of the Election Commissioner and the Lt. Governor shall act in accordance with the opinion of the Election Commission. (iv) Section 73 relates to the duty of the Administrator to convene the first meeting of the Corporation after the General Elections. (v) Section 77 prescribes the duty of the Administrator to nominate a presiding officer for the election of the Mayor. This duty is prescribed in terms that the “Administrator shall nominate a Councillor”. (vi) Section 82 relates to the power of the Lt. Governor to decide the time, place and procedure of the first meeting of the Corporation after the General Elections. (vii) Section 95 provides for the Administrator being the Appellate Authority against imposition of punishment on municipal officer and other employees who are appointed by the Commissioner. (viii) Section 107A provides that the Administrator shall constitute the Finance Commission. (ix) Section 347D also provides an appeal to the Administrator for adjudicating disputes against the order of the Appellate Tribunal made under Section 343 or 347B. [2024] 8 S.C.R. Government of NCT of Delhi v. Office of Lieutenant Governor of Delhi
33. In contrast, we will now examine the powers and duties entrusted to the Government of NCTD by the DMC Act. (i) Under Section 479, the Government of NCTD has the power to make Rules. The Government also has the power to approve Bye-Laws made by the Corporation. (ii) Section 7B relates to the preparation of Electoral Rolls in which the Electoral Registration Officer shall be appointed in consultation with the Government. (iii) Section 43 empowers the Government to give general or special orders with respect to any function that the Corporation may perform in exercise of its duty. (iv) Under Section 52, the Government has the power to pass general or special orders as specified in Fifteenth Schedule of the Act, with respect to exercise of powers and functions of the Ward Committees. (v) Under Section 89, the appointment of the Municipal Chief Auditor shall be made with the previous approval of the Government. Similarly, all the officers mentioned in Section 89(1), except the Municipal Chief Accountant and Municipal Secretary, shall be subject to confirmation by the Government. (vi) Under Section 92A, direct recruitment to category B and C posts shall be made by the Government and it may prescribe the agencies for performing its function. (vii) Under Section 116, the Government has the power to appoint and notify the Municipal Valuation Committee which comprises a Chairperson and such other members as the Government may determine. (viii) Under Section 150 the power of the Corporation to levy taxes is subject to the sanction of the Government. (ix) Under Section 169 the Government shall have the power to constitute the Municipal Taxation Tribunal and such other members as the Government may determine. (x) Under Section 207 the Government has the power to appoint an Auditor for the purpose of making a special audit of the Municipal Fund and reporting thereon to the Government. 232 (xi) Under Section 347A the Government also has the power to constitute one or more Appellate Tribunal for deciding appeals under section 343 and 347B. (xii) Under Section 347A(4) the Government has the power to appoint one or more persons having special knowledge or experience in the matters involved in such appeals to act as assessors to advice the Appellate Tribunal. In this very context it is important to note that in so far as appointment of person manning the Appellate Tribunal is concerned, the power is given to the Central Government. (xiii) Under Section 469, the Government has the power to appoint Municipal Magistrates for conducting the trial of offences under the Act. Under sub-Section (3) the Government has the power to prescribe the salary, pension, and leave etc.
34. Apart from the powers and duties of Lt. Governor and the Government of NCTD as noted in Paras 32 and 33, the DMC Act also refers to powers, functions and duties of other authorities such as the Central Government, the Corporation,19 and the Commissioner.20 The specific powers that are entrusted to them are mentioned in the footnote for the purpose of brevity as we are concerned only with the competing power structure between the Lt. Governor and the Government of NCTD.
35. The provisions of the Act relating to the Lt. Governor are relating to matters such as nomination of experts, Election Commissioner, constituting Finance Commission, convening the first meeting of the Corporation, acting as an appellate authority, etc. These functions seem to suggest that they are intended to enable the authority (Lt. Governor) in which the power is vested to act as an independent body.
36. On the other hand, powers and duties entrusted to the Government under the DMC Act are very distinct from that of the Lt. Governor. Para 30 evidences this fact. Powers and duties of Government of NCTD relate to matters such as making of subordinate legislation, having superintendence, making direct recruitment, imposing taxes, See Sections 39, 89, 98, 209 See Sections 89, 90, 92, 98 [2024] 8 S.C.R. Government of NCT of Delhi v. Office of Lieutenant Governor of Delhi establishment of Tribunals, appointment of Authorities such as the Municipal Chief Auditor, Valuation Committee, etc.
37. Having examined Section 3(3)(b)(i) of the DMC Act empowering the Lt. Governor to nominate persons having special knowledge to the DMC, we will underscore the point that it is law made by Parliament. As the law requires the Lt. Governor to exercise the power of nomination, it satisfies the exception contemplated under Article 239AA(4) to act in his discretion as he is by or under any law so required to act. We also reject the submission that the word ‘Administrator’ is a relic of the past- a pre-1991 legislation when there was no Legislative Assembly for Delhi, for the reason that Section 3(3)(b)(i) was introduced only in 1993 to give effect to the two constitutional amendments. Apart from the ‘text’ of Section 3(3)(b)(i) specifically requiring the Lt. Governor to nominate, we have also examined the ‘context’ in which the said provision is located, and it evidences the existence of a statutory scheme in which powers and duties are entrusted to different authorities under the Act to subserve the constitutional purposes. The statutory regime makes it clear that the entrustment of the powers is intended to be exercised by Lt. Governor as a statutory duty.
38. We would therefore proceed to add the following two principles to the statement of the relations between Union and NCTD in para 22: (ix) The statutory power under Section 3(3)(b)(i) to nominate persons of special knowledge was vested in the Lt. Governor for the first time by the 1993 amendment to the Delhi Municipal Corporation Act, 1957 to incorporate the Constitutional changes through Articles 239AA, 239AB and introduction of Part IX-A relating to municipalities. The power to nominate is therefore not a vestige of the past or a power of the Administrator that is continued by default. It is made to incorporate change in the Constitutional structure of NCTD. (x) The ‘text’ of Section 3(3)(b)(i) of the DMC Act, 1957 as amended by Act 67/1993 expressly enables the ‘Lt. Governor’ to nominate persons having special knowledge to the Corporation. The power expressed by the statute in the name of Lt. Governor, also seen in the ‘context’ of other provisions of the statute, demonstrates the statutory scheme in which powers and duties are distributed among authorities under 234 the Act. The context in which the power is located confirms that the Lt. Governor is intended to act as per the mandate of the statute and not to be guided by the aid and advice of the Council of Ministers.
39. Having examined the provisions of the Act, we are of the opinion that Section 3(3)(b)(i) of the Delhi Municipal Corporation Act is a Parliamentary enactment vesting the power of nomination of persons with special knowledge in municipal administration with the Lt. Governor. The power is to be exercised as a statutory duty of the Lt. Governor and not as the executive power of the Government of NCTD.
40. For the reasons stated above, the notifications dated 03.01.2023 and 04.01.2023 issued by the Lt. Governor under Section 3(3)(b)(i) are not in violation of Article 239AA read with Section 41 of the GNCTD Act.
41. Accordingly, this Writ Petition (C) No. 348 of 2023 under Article 32 of the Constitution of India is dismissed.
42. No order as to costs. Result of the case: Writ Petition dismissed. †Headnotes prepared by: Divya Pandey