Delhi High Court
Smt. Bhoomi Chatter Singh Rachhoya vs Commissioner, North Delhi Municipal ... on 6 February, 2013
Author: Rajiv Sahai Endlaw
Bench: Chief Justice, Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 6th February, 2013
+ W.P.(C) No.7546/2012
SMT. BHOOMI CHATTER SINGH RACHHOYA ..... Petitioner
Through: Mr. Vikas Pakhiddey and Mr. Abhay
Dixit, Advocates.
Versus
COMMISSIONER, NORTH DELHI MUNICIPAL
CORPORATION & ORS ..... Respondents
Through: Mr. Ajay Arora & Mr. Kapil Dutta,
Advocates.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. This petition under Article 226 of the Constitution of India filed in public interest, seeks mandamus to the Commissioner, Deputy Commissioner (Narela Zone) and the Chief Engineer (Narela Zone) of the North Delhi Municipal Corporation (Municipality) to carry out the decisions taken in the meetings held on 30th May, 2012 and 9th August, 2012 the Minutes whereof are filed along with the petition. The petition also seeks a direction to the said respondents to take decision and finalize the demand for 196 Safai Karamcharies, as proposed in the noting dated 6th July, 2012 of the Assistant Commissioner of the Municipality.
W.P.(C) No.7546/2012 Page 1 of 10
2. The Minutes of the meeting dated 30th May, 2012 record the bad condition of the parks, non-functional street lights, narrow drains and broken culverts, silted drains in Ward No.31 of the Narela Zone and the remedial steps to be taken therefor by the concerned Departments/Officials of the Municipality as well as the decision for increasing availability of Safai Karamcharies in the said Ward. The Minutes of the meeting held on 9th August, 2012 are also on similar lines.
3. The petition is preferred not by any ordinary citizen, or by an NGO or a Society working for the betterment of residents of the said Ward of Narela Zone of the respondent Municipality, but by the Municipal Councillor of the said Ward of the Narela Zone.
4. The petition came up first before this Court on 5 th December, 2012 when upon our asking as to why the petitioner, in performance of her duties to the people as a Municipal Councillor, has not been able to get the decisions taken in the aforesaid meetings implemented, the counsel for the petitioner had sought time to file a detailed affidavit.
5. In the affidavit filed, it is stated that the petitioner was elected as Municipal Councillor in April, 2012 from Ward No.31 of the respondent Municipality and that the meetings aforesaid were held at her instance but W.P.(C) No.7546/2012 Page 2 of 10 complains that the officials of the Departments of the Municipality who were directed to take action, have failed, compelling the petitioner to approach this Court for directing them to discharge their duties.
6. It is thus evident that the petitioner, as the Municipal Councillor of the Ward qua which grievances are made, only convened meetings in which directions for taking remedial steps were issued to the officials of the Municipality and has done nothing more/further. We have enquired from the counsel for the petitioner whether the duties and obligations of the petitioner, for discharge of which people have elected the petitioner as a Municipal Councillor, are limited only to drawing attention of the officers / employees of the Municipality to the grievances, and which even an ordinary citizen can do.
7. The counsel for the petitioner contends that the petitioner has also filed this petition.
8. We however wonder whether the petitioner has been elected as a Municipal Councillor by the residents of the Ward only to enable the petitioner to file a public interest litigation and which as aforesaid, does not require the qualification / appointment as a Municipal Councilor. W.P.(C) No.7546/2012 Page 3 of 10
9. A Municipal Corporation, as the respondent North Delhi Municipal Corporation is, as per Section 3 of the Delhi Municipal Corporation Act, 1957, is composed of Councillors to be chosen by direct election on the basis of adult suffrage from various Wards into which Delhi is divided. The elected Councillors of a Municipal Corporation, under Section 35 of the Act, at their first meeting in each year are required to elect one of the Councillors to be the Chairperson known as the Mayor and another Councillor as the Deputy Mayor of the Corporation. The Municipal Government of the areas of the Corporation, under Section 41 of the Act, vests in the Corporation and which as aforesaid is composed of the Councillors. The grievances with respect to the Ward, residents whereof have elected the petitioner and qua which mandamus is claimed in this petition, fall within the obligatory functions of a Municipal Corporation defined in Section 42 of the Act.
10. It will thus be seen that the petitioner is a part and parcel and a component of the Municipal Corporation against officers / employees whereof mandamus is sought.
11. Chapter IV of the Act describes the authorities under each Municipal Corporation as the Standing Committee, Ward Committee and the W.P.(C) No.7546/2012 Page 4 of 10 Commissioner. The Standing Committee and the Ward Committee again comprise of none other than the Councillors of the Corporation.
12. Upon the aforesaid provisions being brought to the attention of the counsel for the petitioner, he contends that the employees of the Corporation are not abiding by the directions already issued to them, to remedy the grievances and hence this petition. We have however asked the counsel for the petitioner as to who is to govern the said employees, if the employees of the Corporation fail to perform their duties which they are obliged to perform. It will be none other than the Municipal Councillors who are to supervise their work and ensure that the employees perform their duties. The petitioner however blames the Commissioner in this regard.
13. The Commissioner of a Corporation, though under Section 54 of the Act to be appointed by the Central Government, but is under Sub-Section (3) thereof liable to be removed upon a resolution for such removal being passed by a majority of not less than 3/5th of the total number of Councillors of the Corporation. It is thus not as if the Commissioner of a Municipal Corporation is different from the Municipal Corporation but is found to be answerable to the Municipal Corporation. Rather, Section 70 expressly empowers the Corporation, which as aforesaid comprises of the Municipal W.P.(C) No.7546/2012 Page 5 of 10 Councillors, to require the Commissioner to report on various matters. Similarly, under Section 81(2), a Councillor is entitled to ask the Commissioner questions on any matter relating to Municipal Government or the administration of the Act or the functions of any authority. Not only so, the power to appoint Municipal Engineer, Municipal Health Officer, Deputy Commissioner under Section 89 is of the Corporation which comprises of Councillors. Section 95 provides for punishment of Municipal Officers and employees inter alia for neglect of duty. Thus, if any municipal employee neglects to implement the decision/direction issued, he/she can be punished therefor.
14. The petitioner though elected a Municipal Councillor does not appear to have made herself aware of her role as a Municipal Councillor and appears to be under the delusion that the municipal governance vests in the Commissioner. A Full Bench of this Court as far back as in Satish Chandra Khandelwal Vs. Union of India AIR 1983 Delhi 1 held that the municipal government vests in the Corporation composed of Councillors and not in the Commissioner and that the Commissioner cannot be blamed for the mismanagement of the affairs of the Corporation though he is the chief executive of the Corporation. It was further held that it is the Councillors W.P.(C) No.7546/2012 Page 6 of 10 who are primarily answerable for their actions to the people, at the polls. Again in Nirmal Kumar Jain Vs. Municipal Corporation of Delhi MANU/DE/1318/2000 it was held that the Commissioner is only one of the Authorities to carry out the functions and is subject to directions of the supreme body namely General House comprising of the Councillors. The Commissioner was held subservient to the Corporation. The petitioner needs to be reminded of her functions as a Municipal Councillor and we are pained to see the concept of local self-government being eroded. The petitioner has been elected to improve the civic life and to govern the officers and employees of the Corporation of which she is a part and not to pass on the said buck to the Court. This Court in fact is reminded of the importance bestowed by Mahatma Gandhi upon municipal governance in the March 28, 1929 issue of the weekly Journal 'Young India' in the capacity of Editor thereof, who observed that it is a rare privilege for a person to find himself in the position of a Municipal Councillor and that Municipal Councillor must approach their sacred task in a spirit of service. The petitioner instead of performing her tasks/duty of municipal governance has in the guise of this PIL approached this Court to carry out the said governance and which governance is an executive function.
W.P.(C) No.7546/2012 Page 7 of 10
15. This Court whenever approached for a writ of mandamus against the Executive, always enquires whether before approaching this Court the Executive has been approached for redressal of the grievance raised. The Division Bench of this Court in C.L. Devgun Vs. New Delhi Municipal Council 155 (2008) DLT 180 rather observed that the Court should first determine whether any internal mechanism for redressal exists and if so, to first invoke the same. This is however a classic case where those, to whom this Court if had been approached by an ordinary citizen would have directed to redress the grievance of the citizen, have themselves approached the Court.
16. It would thus be seen that it is not as if a Municipal Councillor is helpless. Rather, for what directions are sought in this petition, it is the duty and function of the Municipal Councillor to do. It is unfortunate that the petitioner instead of performing her role as a Municipal Councillor has chosen to approach this Court. This writ petition appears to be more of an exercise in public relations, rather than to serve any public interest. Litigation instituted in public interest is directed towards ensuring governance in accordance with the Constitutional and statutory mandate and cannot provide an avenue for substituted governance. This Court, in a W.P.(C) No.7546/2012 Page 8 of 10 democratic set up governed by separation of powers cannot assume to itself the task of governance which the Constitution leaves to the elected representatives. The want of the petitioner, who is an elected representative, is however otherwise.
17. The vehicle of public interest litigation was evolved to provide legal remedies to persons incapable of access to the justice delivery system. The person who is elected to govern the country or the Municipality or a Ward, cannot be allowed to pay lip service to such governance by filing public interest litigation. The Supreme Court in Dr. B. Singh Vs. Union of India (2004) 3 SCC 363 warned that the public interest litigation should not be politics interest litigation. After all, the directions if any to be issued by this Court also are to be implemented by the Municipal Corporation which is a juristic person and which has to act through its Municipal Councillors. We therefore find a parody in this petition, filed by a Municipal Councillor, seeking a direction of this Court to the Municipal Corporation, of which the said Municipal Councillor is herself a part. The petitioner would be well advised to provide effective municipal governance, to provide which, she has been elected as the Municipal Councillor, rather than filing these litigations.
W.P.(C) No.7546/2012 Page 9 of 10
18. We may notice that earlier also a Division Bench of this Court on 18th September, 2006 dismissed W.P.(C) No.14742/2006 titled Aarti Mehra Vs. MCD preferred by another Municipal Councillor observing that she has a number of platforms available to her for redressal of the grievances vented in the petition and is not expected to merely address letters to certain Authorities and then rush to the Court.
19. We therefore do not find any merit in this petition and dismiss the same.
No costs.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE FEBRUARY 06, 2013 bs..
W.P.(C) No.7546/2012 Page 10 of 10