New Delhi [India], April 10 : The Supreme Court on Monday granted more time to the Lieutenant Governor (LG) Vinai Saxena to file his response to a plea of the Delhi government challenging the appointment of 10 'aldermen' by the LG in the Municipal Corporation of Delhi (MCD).
A bench of Chief Justice of India DY Chandrachud and Justices Justices PS Narasimha and JB Pardiwala asked the office of LG to file his response on the plea on which notice was issued earlier.
At the outset, the bench asked Additional Solicitor General (ASG) Sanjay Jain, appearing for the LG, as to how can the LG act "without aid and advice" of the council of ministers in nominating 10 members to the MCD.
"How can the LG take the decision without the aid and advice of the council of ministers? This has to be exercised on the aid and advice...," observed the CJI.
An amendment to Section 44 of the GNCTD Act (the Government of National Capital Territory Act) was made after the 2018 judgement of a Constitution bench of the apex court, ASG responded.
Senior advocate Abhishek Manu Singhvi, appearing for the Delhi government, said they were "patently wrong" and the Constitutional interpretation of Article 239AA (which deals with Delhi) by the top court cannot be negated by amending a statute.
Delhi government officers were sending the files directly to the office of the LG without first sharing them with the Delhi government, he added.
After Aam Aadmi Party (AAP) won the municipal elections, the LG appointed 10 'aldermen' that were opposed by the Delhi government.
The petition of the Delhi government sought the quashing of orders dated January 3 and 4 whereby the LG nominated 10 persons as nominated members of the MCD.
Lieutenant Governor has "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 has been 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, Arvind Kejriwal led Delhi government said.
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.
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