Delhi High Court
Campaign For People Participation vs Union Of India on 12 September, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 17th August, 2011
Date of decision : 12th September, 2011
+ W.P.(C) 7548/2010
CAMPAIGN FOR PEOPLE PARTICIPATION ..... Petitioner
Through: Mr.Anil K. Aggarwal and Mr. Abhay
Kumar, Advocates.
versus
UNION OF INDIA ..... Respondent
Through: Mr.A.S. Chandhiok, ASG with Ms. Rajdipa
Behura and Mr. Gurpreet Singh,
Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
Invoking the jurisdiction of this Court under Article 226 of the
Constitution of India, the petitioner, Campaign for People Participation, through
its President, has prayed for declaring the New Delhi Municipal Corporation
Act, 1994 (for brevity, „the 1994 Act‟) as ultra vires Part IXA and also violative of
Articles 13, 14, 19 and 21 of the Constitution of India and further to issue a
WP (C) No.7548/2010 page 1 of 14
mandamus directing the respondent to take necessary steps immediately for
directing election of the Municipality of New Delhi area.
2. It is averred in the petition about the growth of local self governance and
the concept of village republic with further reference is made to the Punjab
Municipal Act, 1911, formation and changes in the Delhi Municipal Committee
from time to time and enactment of the 1994 Act, the 73rd and 74th amendments
in the Constitution wherein Chapter IX has been introduced in respect of the
Panchayats and Chapter IXA in respect of the Municipalities. It is urged that
these amendments have come into existence to spread democracy at the grass
root level conferring more responsibility on the people. A reference has been
made to the statement of objects and reasons for bringing the aforesaid
amendments in the Constitution and further reference has been made to the
Constitution Bench decision in Kishansingh Tomar v. Municipal Corporation of
the City of Ahmedabad &Ors., (2006) 8 SCC 352 to highlight the underlying
constitutional significance of the said amendment.
3. It is averred that the Constitution has recognized the importance of elected
members of Panchayats and Municipalities. It is urged that emphasis laid on the
responsibility of elected members of the municipal authorities has been
WP (C) No.7548/2010 page 2 of 14
highlighted by the Apex Court in the decisions of M.C. Mehta v. Union of India,
AIR 2004 SC 4618 and M.C. Mehta v. Union of India, (2006) 3 SCC 399.
4. It is further urged that in pursuance of the constitutional amendment, New
Delhi Municipal Council Ordinance, 1994 was promulgated and, thereafter, the
1994 Act was enacted. It is contended that in abject contravention of the
constitutional provision, the municipality constituted under the impugned Act
does not provide for the proper structure of the municipality inasmuch as there
are a number of ex officio members and not elected representatives. It is
highlighted that in the absence of representation of the local people, the concept
of urban local self governance which has been engrafted into the scheme of the
Constitution of India after the introduction of Chapter IXA is flagrantly violated.
The provisions in the Act are totally counter to the constitutional mandate and,
therefore, they deserve to be declared ultra vires.
5. Though this Court had asked the Union of India to file the counter
affidavit, yet Mr.A.S. Chandhiok, learned Additional Solicitor General, on
18.5.2011, had submitted that the controversy raised in this petition is covered by
the decision rendered in Rama Aggarwal & Ors. v. Union of India & Ors., 112
(2004) DLT 533 (DB). Be it noted, on that day, this Court had directed to file the
WP (C) No.7548/2010 page 3 of 14
counter affidavit and, thereafter, the matter was taken up on 17.8.2011. On
17.8.2011, as Mr.Chandhiok had forcefully submitted that the controversy having
been covered, there is no necessity to file the counter affidavit, the matter was
finally heard without the return.
6. In support of the stand put forth in the writ petition, it is submitted by
Mr.Aggarwal, learned counsel for the petitioner, that the decision in Rama
Aggarwal & Ors. (supra) is not applicable to the case at hand if the relief clause is
appropriately appreciated and the ratio laid down in the decision in Rama
Aggarwal & Ors. (supra) is studiedly scrutinized. It is contended by him that
Article 243ZB does not confer unfettered and unbridled power on the Executive
and, therefore, the notification issued on 24.5.1994, being beyond the scope of the
said Article, is ultra vires. It is further submitted that the said notification lapsed
after expiry of the period meant for issuance of Ordinance and, hence, he has not
assailed the said notification. The learned counsel would vehemently argue that
he has challenged the provisions pertaining to the constitution of the
Municipality in Delhi which totally run counter to Article 243ZE and, hence, the
entire Chapter relating to it under the 1994 Act deserves to be declared ultra
vires.
WP (C) No.7548/2010 page 4 of 14
7. Mr.Chandhiok, learned Additional Solicitor General, in countering the
aforesaid submission, contended that Article 243ZE is not applicable to the
National Capital Territory of Delhi in view of S.O.No.1125(E) dated 12.11.2001.
That apart, it is urged by him that this Court has upheld the validity of the
Ordinance and the notification dated 24.5.1994 which was the subject matter of
Civil Writ Petition No.1277/2001. The learned Additional Solicitor General has
further proponed that once the power has been exercised for issuing the
notification and this Court has held it to be valid, there is no justification for
reopening the issue.
8. Chapter IXA of the Constitution deals with Municipalities. Article 243R
deals with the composition of municipalities. It reads as follows:
"243R. Composition of Municipalities. - (1) Save as
provided in clause (2), all the seats in a Municipality shall be
filled by persons chosen by direct election from the territorial
constituencies in the Municipal area and for this purpose each
Municipal area shall be divided into territorial constituencies
to be known as wards.
(2) The Legislature of a State may, by law, provide -
(a) for the representation in a Municipality of -
(i) persons having special knowledge or
experience in Municipal administration;
WP (C) No.7548/2010 page 5 of 14
(ii) the members of the House of the People
and the members of the Legislative
Assembly of the State representing
constituencies which comprise wholly or
partly the Municipal area;
(iii) the members of the Council of States and
the members of the Legislative Council of
the State registered as electors within the
Municipal area;
(iv) the Chairpersons of the Committees
constituted under clause (5) of article 243S:
Provided that the persons referred to in
paragraph (i) shall not have the right to vote in
the meetings of the Municipality;
(b) the manner of election of the Chairperson of a
Municipality."
9. Article 234ZB reads as follows:
"243ZB. Application to Union territories. - The
provisions of this Part shall apply to the Union
territories and shall, in their application to a Union
territory, have effect as if the references to the Governor
of a State were references to the Administrator of the
Union territory appointed under article 239 and
references to the Legislature or the Legislative
Assembly of a State were references in relation to a
Union territory having a Legislative Assembly, to that
Legislative Assembly:
Provided that the President may, by public
notification, direct that the provisions of this Part shall
apply to any Union territory or part thereof subject to
WP (C) No.7548/2010 page 6 of 14
such exceptions and modifications as he may specify in
the notification."
10. On a perusal of Article 243ZB, it is quite vivid that the New Delhi
Municipal Council (NDMC) is a part of the National Capital Territory of Delhi
and, therefore, the provisions of Part IXA of the Constitution of India could be
modified in its application to NDMC by issuing a notification under the proviso
to the said Article. A notification has been issued on 24.5.1994 by the President
carving out the exception. The said notification reads as follows:
"Ministry of Home Affairs
NOTIFICATION
New Delhi, the 24th May, 1994
S.O.391(E) - In exercise of the powers conferred by the
proviso to Article 243ZB of the Constitution, the
President hereby directs that the provisions of Part IXA
of the Constitution shall apply to the National Capital
Territory of Delhi insofar it relates to the New Delhi
Municipal Council to be constituted under the New
Delhi Municipal Ordinance, 1994, subject to the
following exceptions and modification, namely:
1. For Article 243R, the following article shall be
substituted, namely:
"243R. The New Delhi Municipal Council shall
consist of -
(a) ten members nominated by the Central Government
of whom three shall be members of the Legislative
WP (C) No.7548/2010 page 7 of 14
Assembly to the National Capital Territory of Delhi
representing constituencies which comprise wholly
or partly the area consisting of the New Delhi
Municipal Council;
(b) a chairperson appointed by the Central Government;
and
(c) the Member of Parliament representing the
constituency which comprises wholly or partly the
New Delhi area, who shall be a special invitee for the
meetings of the Council but without a right to vote."
2. For Article 243T, the following Article shall be
substituted, namely:
„243T. Out of the eleven members referred to in
Article 243R, as modified hereinbefore, atleast three
members shall be women and one member shall be
from the Scheduled Castes.‟
3. The New Delhi Municipal Council -
(a) Where it is dissolved before the expiry of its
duration under Clause (1), shall be reconstituted
within a period of six months of such dissolution;
and
(b) where, it is dissolved after the expiry of its duration,
shall be reconstituted before such expiry.‟
(ii) Clause (4) shall be omitted.
4. For Article 243V, the following Article shall be
substituted, namely:
„243V. No person, other than a Member of the
Legislative Assembly of the National Capital
Territory of Delhi, shall be disqualified for being
WP (C) No.7548/2010 page 8 of 14
nominated as a member of the New Delhi
Municipal Council on the ground that he holds an
office of profit for purposes of elections to the
Legislature of the National Capital Territory of
Delhi under any law for the time being in force‟."
11. It is worth noting, a challenge to the said notification was made in the case
of Prof. M.L. Sondhi v. Union of India & Ors., CWP No.1516/1997 but the said
writ petition was dismissed for non-prosecution. In Rama Aggarwal & Ors.
(supra), a relief was sought for quashing of the Delhi Development Act, 1957
along with other prayers. The prayer „E‟ read as follows:
"E. This Hon‟ble Court may be pleased to consider clubbing
the CWP No.1516/1997, Prof. M.L. Sondhi v. Union of India
& Ors., with this matter, so that the challenge to the vires of
the New Delhi Municipal Council Act, 1994, in that petition,
on the ground of it being violative of the Constitutional 74th
Amendment Act could be considered by this Hon‟ble Court
along with the above matters."
12. Be it noted, the Bench observed that CW No.1516/1997 had nothing to do
with the said writ petition. While not allowing the prayer for clubbing, the
Division Bench referred to Article 243Q of the Constitution of India and,
thereafter, opined that Delhi is not a State but a Union Territory and is governed
by the special provision contained in Article 239AA and Article 239B of the
Constitution. In that context, the Bench proceeded to state thus:
WP (C) No.7548/2010 page 9 of 14
"5. In terms of Clause 8 of Article 239AA the
provision of Article 239B shall, so far as may be, apply
in relation to the National Capital Territory, the
Lieutenant Governor and Legislative Assembly, as they
apply in relation to Union Territory of Pondicherry, the
administrator and its Legislature, respectively; and any
reference in that article to "Clause (1) of Article 239A"
shall be deemed to be a reference to this Article or
Article 239B, as the case may be.
6. In terms of Article 239 of Constitution of India, a
Union Territory is a separate entity. Part IXA of the
Constitution, therefore, cannot have any application in
relation to Delhi in its entirity. The applicability is
circumscribed by the other provisions of the
Constitution. Furthermore, the Delhi Development
Authority Act, 1957 has been enacted by the Parliament.
The said Act had been enacted to provide for the
development of Delhi according to plan and for that
purpose, necessary power was vested in the said
Authority.
7. The provisions of Delhi Development Authority
and MCD Acts are to be read together. There is no
conflict between the said two Acts. Section 6 of the
Delhi Development Authority Act mainly provides for
objectives of the Authority. It has not been pointed out
that the said Act, in any way, is inconsistent to the
provisions of the MCD Act.
8. It is not in dispute that the powers given to the
legislative assembly of NCT of Delhi are in consonance
with the constitutional scheme and Parliament is
competent and has power to enact any law for Union
Territory or for any of the State with reference to the
different lists in the 7th Schedule of Constitution in
terms of Clause 4 of Article 246 of the Constitution of
India.
WP (C) No.7548/2010 page 10 of 14
9. In that view of the matter the submission of the
learned counsel to the effect that MCD must be a body
which is a local authority and power of the legislation of
the State is incorrect.
10. Article 243W of the Constitution merely provides
for an enabling provision. Only in terms of Article
243ZB the provisions of part IXA may apply to Union
Territories which is subject to issuance of appropriate
notifications as may be issued by the President."
13. After so holding, the Bench referred to the notification dated 24.5.1994
which we have produced hereinabove. Relying on the said notification, the
contention that was advanced in the backdrop of Article 243Q was negatived.
14. It is seemly to state that by virtue of the powers conferred under Article
243ZB on the President, the said notification has been issued. The proviso to
Article 243ZB categorically postulates that the President by public notification
may direct that the provisions of Chapter IXA shall apply to any Union Territory
or part thereof subject to such exceptions and modifications specified in a
notification. As the notification would show, Articles 243R, 243T, 243U and 243V
have been substituted. On a scanning of the provisions relating to the
composition of the Delhi Municipal Council, it is manifest that it is in accordance
with the constitutional provision which has been substituted to be made
applicable to Delhi. It is worth noting that such a power is inherent in the
Constitution itself. If the notification is issued in pursuance of the constitutional
WP (C) No.7548/2010 page 11 of 14
provision, no fault can be found with the provisions engrafted in the 1994 Act.
The submission that the notification lapsed after the expiry of the period for the
Ordinance, stands repelled as totally bereft of substance inasmuch as the
notification relates to the exercise of power under Article 243ZB of the
Constitution. By virtue of the said notification, what has been held is that
Chapter IXA of the Constitution shall apply with exceptions and modifications to
the Delhi Municipal Council to be constituted under the New Delhi Municipal
Ordinance, 1994. The 1994 Act was passed by both the Houses of Parliament and
received the assent of the President on 14.7.1994. As we perceive, the learned
counsel has misconstrued the legal effect of the notification relating to the
Municipal Council that was constituted under the Ordinance. But that has
nothing to do with the notification dated 24.5.1994 by which the President had
exercised the power of issuing the notification under Article 243ZB of the
Constitution of India. Notification is still valid and continues to apply, though
the Ordiance has been replaced by the 1994 Act. The other ground that the
Article does not confer unfettered and unbridled power on the Executive is
totally sans substance and does not really merit consideration as we are disposed
to think that the Constitution itself confers the powers on the President and we
perceive no fathomable reason to come to hold that it is a notification beyond the
WP (C) No.7548/2010 page 12 of 14
scope of the said Article as ordinarily understood, the power flows from the
constitutional mandate and authority. The petitioner has not challenged the
constitutional provision enshrined under Article 243ZB. The notification is in
accord with Article 243ZB. Ergo, we repel the submission of Mr. Aggarwal,
which has been so anxiously canvassed.
15. Consequently, the writ petition, being devoid of merit, stands dismissed
without any order as to costs.
CHIEF JUSTICE
SEPTEMBER 12, 2011 SANJIV KHANNA, J.
dk WP (C) No.7548/2010 page 13 of 14 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 7548/2010 CAMPAIGN FOR PEOPLE PARTICIPATION .... Petitioner Through: Mr.Anil K. Aggarwal and Mr. Abhay Kumar, Advocates.
versus UNION OF INDIA ..... Respondent Through: Mr.A.S. Chandhiok, ASG with Ms. Rajdipa Behura and Mr. Gurpreet Singh, Advocates.
% CORAM:
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA After the judgment was pronounced, Mr.Anil K.Aggarwal, learned counsel for the petitioner, made an oral prayer for grant of certificate for appeal to the Supreme Court under Article 134A of the Constitution of India. Having heard, learned counsel for the petitioner, we are of the considered view that the case does not involve substantial question of law of general importance.
Hence, the oral prayer for grant of certificate stands rejected.
CHIEF JUSTICE SANJIV KHANNA, J SEPTEMBER 12, 2011 sv WP (C) No.7548/2010 page 14 of 14