Delhi Municipal Corporation Act, 1957; Section 3(3)(b)(i)- The Lieutenant Governor of National Capital Territory of Delhi shall nominate 10 persons with special knowledge in municipal administration to the DMC -Whether the Lt. Governor can exercise that power of nomination as a statutory duty attached to his office or he is bound by the aid and advice of the Council of Ministers of NCTD as provided in Article 239AA(4) of the Constitution- 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. (Para 39)
Constitution Of India, 1950; 239AA(4) – Relations between the Union and the NCTD -A. Legislative Relationship (i) Legislative Assembly of NCTD shall have power to make laws (legislative power) for NCTD with respect to ‘any of the matters’ enumerated in State List or Concurrent List. (except entries 1, 2 and 18 of State List). (Article 239AA(3)(a)). (ii) Notwithstanding the above, Parliament shall have power to make laws (legislative power) for NCTD with respect to ‘any matter’ in the three lists. This is where there is a departure from the legislative powers of Parliament with respect to States. While Parliament does not have legislative competence over entries in List II for States, it has the power to make laws even with respect to matters enumerated in List II for NCTD [(Article 239AA(3)(b)]. (iii) Law made by the Parliament shall prevail, whether made before or after any law made by the Legislative Assembly of NCTD, and the law made by the Legislative Assembly, to the extent of repugnancy, shall be void. Only exception is when the law made by Legislative Assembly of NCTD receives Presidential assent. (proviso to Article 239AA(3)(c)) (iv) Once Parliament exercises its legislative power and makes a law on a subject in List II or List III, the Legislative Assembly of NCTD is denuded of its legislative competence to make laws with respect to that subject. Once there is no legislative power for Legislative Assembly of NCTD, there would be no executive power as executive power is always coextensive and coterminous with legislative power – Executive Relationship (v) Government of NCTD has the executive power in relation to all matters with respect to which Legislative Assembly of NCTD has power to make laws. The executive power extends to all matters enumerated in the Concurrent List as well as State List (Except Entries 1, 2 and 18 of State List). (vi) Union of India shall have exclusive executive power with respect to matters in Entries 1, 2 and 18 of the State List, which are specifically excluded from the legislative power of NCTD. (vii) The executive power of Government of NCTD shall be exercised through the Lt. Governor who shall act on the aid and advice of the Council of Ministers [Art 239AA(4)] read with Section 44 of the GNCTD Act. Another constitutionally recognized departure for NCTD is that while Governor of a State under Article 163 acts on the aid and advice of Council of Ministers on all matters except when he is by or under the Constitution required to exercise his functions in his discretion, the Lt. Governor, under Article 239AA(4) is to exercise discretion, ‘in so far as he is, by or under any law, required to act in his discretion’. ‘Law’ requiring him to act in his discretion could be a law of the Legislative Assembly of NCTD or a Parliamentary law. -C. Statutory Regulation (viii) Once Parliament makes Law on a subject over which NCTD also has legislative competence and consequently executive power, the powers, duties and obligations of the authorities will then be governed by the mandate of the Law made. This position is already mentioned in statements (iii) and (iv). If the Law vests a power, duty or an obligation on the Lt. Governor, the Lt. Governor will act under the mandate of the Act and not as per the ‘executive power’ of Government of NCTD. Therefore, statutory provision alone will determine whether the power is intended to be exercised by the Lt. Governor on his own accord or on the aid and advise of the Council of Ministers.(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 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. (Para 22, 38)
Constitution Of India, 1950; Article 163, 239AA(4)- There is a clear distinction between the discretionary power of the Governor under Article 163 and that of the Lt. Governor under Article 239AA(4). While Article 163 requires Governor of a State to act on the aid and advice of the Council of Ministers, ‘except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion’, the exception in so far as the Lt. Governor, under Article 239AA(4) is concerned, he will act in his discretion, ‘in so far as he is required by or under any law’. Article 239AA of the Constitution takes into account the unique position of NCTD and therefore adopts the mandate of ‘law’ as a distinct feature for exercise of discretion. (Para 21)