SHELLY OBEROI & ANR. versus OFFICE OF LIEUTENANT GOVERNOR OF DELHI & ORS. on 17 February 2023

1. The jurisdiction of this Court under Article 32 of the Constitutionhas been invoked for seeking diverse reliefs pertaining to the constitutionof the Municipal Corporation of Delhi following the elections which tookplace on 4 December 2022. These elections were held to elect 250Councillors. The first petitioner is a prospective candidate for the post ofMayor. Though over two months have elapsed since the date of theelection, the election of the Mayor has not be held.

2. Chapter II of the Delhi Municipal Corporation Act 1957[1] dealswith the establishment of Corporations. Section 35(1) provides that aCorporation shall at its first meeting in each year elect one of its membersto be the Chairperson, who is known as the Mayor, and another memberto be the Deputy Mayor of the Corporation. Section 3 provides for theestablishment of the Municipal Corporation. Sub-section (3) of Section3 indicates the composition of the Corporation. In terms of the provision,a Corporation is to be composed of Councillors. Besides the Councillorswho are directly elected through the voters in the ward constituencies,there are Councillors who are nominated by the Administrator. Yet othersare represented as ex officio representatives. Clause (b) of sub-section(3) of Section 3 specifies the persons who shall be represented in aCorporation. Among them are:

“(i)ten persons, who are not less than 25 years of age and whohave special knowledge or experience in municipaladministration, to be nominated by the Administrator”.

The proviso to Section 3(3)(b)(i), however, lays down that “thepersons nominated under this sub-clause shall not have the right to votein the meetings of a Corporation”.

3. Chapter V of the Act deals with procedure and the transactionof business by a Corporation. Section 72(1) provides that a Corporationshall ordinarily hold at least one meeting in every month for the transactionof business. Section 73 provides that the first meeting of a Corporationafter a general election shall be held as early as possible after the 1 “Act”

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Apublication of the results of the election under Section 14 and shall beconvened by the Administrator. Section 74 provides for the notice ofmeetings and transaction of business. Section 76(1) stipulates that aMayor, or in his absence, the Deputy Mayor shall preside over everymeeting of the Corporation. Section 77 makes provision for the PresidingOfficer at a meeting for the election of Mayor. Clause (a) of Section 77Bprovides that at a meeting for the election of a Mayor, the Administratorshall nominate a Councillor who is not a candidate for such an electionto preside over the meeting. Section 78 provides for the method of decidingcommon questions. Section 82 empowers the Corporation to makeregulations for the transaction of business at its meetings.C4. Though the jurisdiction of this Court has been invoked for seekingseveral reliefs, the point of controversy has narrowed down to two issues.The first issue is whether aldermen, as they are popularly described,who are nominated by the Administrator under Section 3(3)(b)(i) havethe right to vote at the first meeting of the Corporation where the MayorDwould be elected. The second issue pertains to the order for holdingelections, more specifically, whether, as the petitioners assert, the electionto the office of the Mayor shall be held first followed by the elections tothe Deputy Mayor and other members of the Standing Committee, onwhich meetings the Mayor would preside. The opposing view point isthat all elections would be held simultaneously.E

5. We have heard Dr A M Singhvi, senior counsel, with Mr ShadanFarasat, in support of the petition. Mr Sanjay Jain, Additional SolicitorGeneral, has appeared on behalf of the Municipal Corporation of Delhi.Mr Tushar Mehta, Solicitor General, appears on behalf of the Lt Governor.Mr Ranjit Kumar, senior counsel, appears on behalf of the contestingFcandidate for the post of Mayor. Mr Maninder Singh, senior counsel,has appeared on behalf of the second respondent.

6. Article 243R of the Constitution is embodied in Part IXA of theConstitution which deals with Municipalities. In its material terms, Article243R provides as follows:G“243R. Composition of Municipalities

(1) Save as provided in clause (2), all the seats in a Municipalityshall be filled by persons chosen by direct election from theterritorial constituencies in the Municipal area and for thispurpose each Municipal area shall be divided into territorialHconstituencies to be known as wards.

(2) The Legislature of a State may, by law, provide-(a)for the representation in a Municipality of- A

(i) persons having special knowledge orexperience in Municipal administration;

(ii) the members of the House of the People andthe members of the Legislative Assembly ofBthe State representing constituencies whichcomprise wholly or partly the Municipal area;

(iii) the members of the Council of States and themembers of the Legislative Council of the Stateregistered electors within tile Municipal area; C

(iv) the Chairpersons of the Committees constitutedunder clause (5) of article 243S:

Provided that the persons referred to in paragraph(i) shall not have the right to vote in the meetings ofthe Municipality; D

(b) the manner of election of the Chairperson of aMunicipality.”

7. Clause (1) of Article 243R stipulates that all seats in theMunicipality shall be filled in by direct election held from the territorialconstituencies in the Municipal area, for which the Municipal area isdivided into wards. An exception, however, is stipulated in clause (2), interms of which the legislature of a State may, by law, provide for therepresentation in a Municipality of persons fulfilling the descriptions setout in clauses (i), (ii), (iii) and (iv). Article 243R(2)(a)(i) provides thatthe legislature of a State may, by law, provide for the representation in aMunicipality of persons having special knowledge or experience inMunicipal administration. However, the proviso to clause (2) clearlyspecifies that the persons who are referred to in paragraph (i) shall nothave the right to vote in the meetings of the Municipality. The legislatureof the State may also provide for the manner of election of theChairperson of the Municipality.

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8. Section 3(3) of the Act is a law as contemplated by Article243R. In terms of clause (2) of Article 243R, Section 3(3)(b) providesfor the representation in the Municipality of persons who have specialknowledge or experience in Municipal administration. These personsare nominated by the Administrator. However, in terms of the proviso toArticle 243R(2), a similar restriction is introduced in the proviso to Section H

A3(3)(b)(i) of the Act, by which the nominated members do not have aright to vote in the meetings of the Municipal Corporation.

9. The submission which has been urged on behalf of the petitionersby Dr A M Singhvi is that the nominated members of the Corporation donot have the right to vote, including at the election of the Mayor.

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10. On the other hand, It has been urged both by the SolicitorGeneral appearing on behalf of the Lt Governor and by Mr Sanjay Jain,Additional Solicitor General appearing on behalf of the MunicipalCorporation, that the restriction on the right to vote in terms of Article243R(2) as well as the proviso to Section 3(3)(b)(i) applies only to theCregular meetings of the Corporation where the business of the MunicipalCorporation is transacted and would not extend to the first meeting afterthe elections are held. Buttressing the submission, it has been urged thatSection 73 requires the first meeting of the Corporation to be convenedby the Administrator and Section 35 stipulates that at its first meeting theCorporation shall elect one of its members as a Mayor and another to beDa Deputy Mayor. Hence, it has been submitted that the prohibition onthe exercise of the right to vote which attaches to the nominated membersdoes not extend to the first meeting of the Corporation. Mr Ranjit Kumar,senior counsel, alluded to the provisions of clause (b) of Article 243R(2),according to which the state legislature may by the legislation provideEfor the manner of electing the Chairperson of a Municipality.

11. We are unable to accept the submission which has been urgedon behalf of the Municipal Corporation and the Lt Governor and bycounsel supporting them. The source of the statutory provision iscontained in Article 243R of the Constitution itself. Part IXA of theFConstitution was introduced by the Constitution (Seventy-fourthAmendment) Act 1992. Article 243R provides for the composition ofMunicipalities. As already noted, the Constitution provides for directelection to all the seats in Municipality, save as specified in clause (2)which enunciates the exceptions. Clause (2) contains provisions, interalia, for the representation in a Municipality of persons having specialGknowledge or experience in Municipal administration as well as otherpersons such as members of the House of the People and the LegislativeAssembly and members of the Council of States and the LegislativeCouncil of the States representing the specific constituency and theChairpersons of the Committees constituted under clause (5) of ArticleH243S. The Constitution has imposed a restriction in terms of which nominated members who are brought in on account of their specialknowledge or experience in Municipal administration do not have theright to vote. The same restriction finds statutory recognition in Section3(3)(b)(i) of the Act. The above provisions indicate that persons whoare nominated under the sub-clause shall not have the right to vote in themeetings of the Corporation. The Constitution and the Act place valueon their experience but the right to vote is not granted to them at meetingsof the Corporation. The meetings of the Corporation would include allmeetings, including the first meeting which is held after the holding ofthe general election. Section 73 of the Act provides for the first meetingto be convened by the Administrator as early as possible after thepublication of the results, while Section 35 provides for the election ofthe Mayor and Deputy Mayor at the first meeting of the Corporation.The prohibition on nominated members exercising the right to vote interms of Section 3(3)(b)(i) shall, therefore, also apply to the first meetingof the Corporation at which the Mayor and, thereafter, the Deputy Mayorare to be elected.

12. Apart from the above issue, it needs to be emphasized thatRegulation 7 of the Delhi Municipal Corporation (Procedure and Conductof Business) Regulations 1958 stipulates that as soon as the Mayor iselected, “he shall preside over the meeting for the transaction of the restof the business thereof”. Regulation 8 provides for the election of theDeputy Mayor and stipulates that the provisions of Regulation 6 shallapply, as far as may be, to the election of the Deputy Mayor, subject tothe modification that any reference to the presiding authority shall beconstrued as a reference to the Mayor. These provisions make itabundantly clear that the election of the Mayor has to be held first. Theelected Mayor is then required to preside over the election of the DeputyMayor as the presiding authority. Consequently, with this clarification, itmust be noted that the election of the Mayor shall be conducted first inthe first meeting of the Municipal Corporation of Delhi. Once the Mayoris elected, the elected Mayor shall be the presiding authority for thepurpose of the election of the Deputy Mayor.

13. The interpretation which we have placed on the provisions ofthe statute is in accord with the judgment of a three-Judge Bench of thisCourt in Ramesh Mehta v Sanwal Chand Singh[2].

2 (2004) 5 SCC 409

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A14. We may also note, at this stage, that on 2 February 2023, theUrban Development Department of the Government of NCT of Delhihas issued a notification clarifying that the election of the Mayor, asrequired by Section 35 of the Act, shall first be held and the Mayor soelected will then assume the Chair and proceed to conduct the electionof the Deputy Mayor and six members of the Standing Committee. TheBaforesaid notification was issued in the context of a meeting which wasto be held on 6 February 2023, which could not be held on that day dueto intervening circumstances.

15. Mr Sanjay Jain has indicated that the same process would befollowed at the ensuing meeting for the election of the Mayor, the DeputyCMayor and the members of the Standing Committee.

16. Hence, we issue the following directions:

(i) At the first meeting of the Municipal Corporation of Delhi,the election shall be held first for the post of Mayor and atDthat election, the members who are nominated in terms ofSection 3(3)(b)(i) of the Act shall not have the right to vote;

(ii) Upon the election of the Mayor, the Mayor shall act as thepresiding authority for conducting the election of the DeputyMayor and the members of the Standing Committee at whichEalso the prohibition on the exercise of vote by the nominatedmembers in terms of Section 3(3)(b)(i) shall continue tooperate; and

(iii) The notice convening the first meeting of the MunicipalCorporation of Delhi shall be issued within a period of twentyFfour hours. The notice shall fix the date for convening thefirst meeting at which the election of the Mayor, DeputyMayor and members of the Standing Committee shall beconducted in terms of the above directions.

17. The petition is allowed in the above terms.G18. Pending application, if any, stands disposed of.

Nidhi Jain(Assisted by : Rakhi, LCRA)

Petition allowed.

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