LG, not Delhi govt, has power to nominate MCD official: SC

In a major setback to Delhi's Aam Aadmi Party government, the Supreme Court on Monday ruled that the law 'expressly enables' the lieutenant governor to nominate aldermen to the Municipal Corporation of Delhi (MCD) and he is not bound by the advice of the council of ministers in the matter.

A bench of Chief Justice D Y Chandrachud and Justices P S Narasimha and J B Pardiwala rejected the Delhi government's plea challenging the LG's power to nominate 10 aldermen in the Municipal Corporation of Delhi without the aid and advice of the council of ministers.

The apex court pronounced its verdict on the Delhi government's plea after reserving it for nearly 15 months.

In its ruling impacting the fraught relationship between the LG's office and the AAP-led Delhi government, the bench said the Delhi Municipal Corporation Act as amended in 1993 'expressly enables the LG to nominate persons having special knowledge to the corporation'.

It said the power expressed by the statute in the name of the LG, also seen in the context of other provisions, demonstrates the statutory scheme in which the powers and duties are distributed among authorities under the Act.

"The context in which the power is located confirms that the LG is intended to act as per the mandate of the statute and not guided by the aid and advice of the council of ministers. The power to be exercised is the statutory duty of the LG and not the executive power of the state. This is how we analysed the constitutional provisions," Justice Narasimha said while pronouncing the verdict on behalf of the bench.

The bench said the statutory power under provision 3(3)(b)(1) which deals with nomination of persons having special knowledge was vested with the LG for the first time by the 1993 amendment of the DMC Act of 1957.

The bench said the DMC Act as amended in 1993 recognises five authorities exercising the state's power and duties under the Act -- these are the Central government, the government of NCT, administrator, corporation and the commissioner.

It said the amendment Act of 1993 carries out several amendments to the original DMC Act of 1957 by which the power, duties were allocated to the authorities depending on the function they perform under the law.

The bench said by way of the amendment the power of nomination of aldermen was given to LG under the provision just like the power of nomination of MLAs was given to the speaker of the House.

On May 17 last year, the top court had said that giving the LG the power to nominate aldermen to the MCD will mean he can destabilise an elected civic body.

The MCD has 250 elected and 10 nominated members.

In December 2022, the Aam Aadmi Party defeated the BJP in the civic elections, winning 134 wards and ending the saffron party's 15-year run at the helm of the MCD.

The Bharatiya Janata Party won 104 seats and the Congress finished a distant third with nine.

Senior advocate Abhishek Singhvi, appearing for the Delhi government, had contended during the hearing that no separate powers have been accorded to the state government to nominate people to the MCD.

For the past 30 years, the practice of the LG nominating aldermen on the aid and advice of the city government has been followed, he said.

Additional Solicitor General Sanjay Jain, appearing for the LG's office, submitted that just because a practice has been followed for 30 years does not mean it is correct.

The top court had observed that giving the LG the power to nominate aldermen will effectively mean that he can destabilise a democratically elected MCD because these aldermen get appointed to the standing committees and have voting power.

Earlier, the top court had questioned the 'source of power' of the LG under the Constitution and the law to nominate aldermen to the MCD without the aid and advice of the elected government.

On May 12 last year, the top court observed that LG has to act on the "aid and advice" of the council of ministers of the Delhi government in nominating 10 aldermen to the MCD.