SHELLY OBEROI & ANR.versusOFFICE OF LIEUTENANT GOVERNOR OF DELHI & ORS.

582                      [2023]REPORTS
               SUPREME COURT    5 S.C.R. 582                   [2023] 5 S.C.R.


A                          SHELLY OBEROI & ANR.
                                        v.
        OFFICE OF LIEUTENANT GOVERNOR OF DELHI & ORS.
                      (Writ Petition (Civil) No 152 of 2023)
B                             FEBRUARY 17, 2023
              [DR. DHANANJAYA Y CHANDRACHUD, CJI,
               PAMIDIGHANTAM SRI NARASIMHA AND
                        J. B. PARDIWALA]
             Delhi Municipal Corporation Act, 1957: ss. 3(3)(b)(i), 35(1),
C     73 – Election of mayor and deputy mayor of Municipal Corporation
      of Delhi, if to be held simultaneously – Right of nominated members
      of the municipal corporation to vote – Held: At the first meeting of
      the Municipal Corporation of Delhi, the election shall be held first
      for the post of Mayor and upon the election of the Mayor, the Mayor
      shall act as the presiding authority for conducting the election of the
D
      Deputy Mayor and the members of the Standing Committee – Members
      nominated in terms of s. 3(3)(b)(i) shall not have the right to vote –
      Delhi Municipal Corporation (Procedure and Conduct of Business)
      Regulations 1958 – Regn 7 – Constitution of India – Art.243R.
            Ramesh Mehta v. Sandal Chand Singh (2004) 5 SCC
E           409 - referred to.
                             Case Law Reference
      (2004) 5 SCC 409                  referred to                Para 13
            CIVIL     ORIGINAL JURISDICTION: Writ Petition (Civil) No.
F     152 of 2023.
            (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
            Dr. A M Singhvi, Sr. Adv., Shadan Farasat, Amit Bhandari, Ms.
      Hrishika Jain, Shourya Dasgupta, Ms. Mreganka Kukreja, Aman Naqvi,
      Advs. for the Petitioners.
G           Tushar Mehta, SG, Sanjay Kumar Jain, A.S.G., Mrs. Garima
      Prashad, Maninder Singh, Ranjit Kumar, Sr. Advs., Kanu Agrawal,
      Padmesh Mishra, Sanjay Kr.Tyagi, Arkaj Kumar, Shreekant Neelappa
      Terdal, Nishit Agrawal, Ms. Kanishka Mittal, Ms. Vanya Agrawal, Gaurav
      Sharma, Dhawal Mohan, Prateek Bhatia, Prabhas Bajaj, Paranjay
H     Thripathi, Neeraj, Amit Tiwari, Aman Jha, Surender Gupta, Rishi Tutu,

                                       582
    SHELLY OBEROI v. OFFICE OF LIEUTENANT GOVERNOR                              583
                        OF DELHI

Ms. Megha Sharma, Ms. Akanksha Gupta, Shoumendu Mukherji, Advs.                 A
for the Respondents.
            The Judgment of the Court was delivered by
            DR. DHANANJAYA Y CHANDRACHUD, CJI
       1. The jurisdiction of this Court under Article 32 of the Constitution   B
has been invoked for seeking diverse reliefs pertaining to the constitution
of the Municipal Corporation of Delhi following the elections which took
place on 4 December 2022. These elections were held to elect 250
Councillors. The first petitioner is a prospective candidate for the post of
Mayor. Though over two months have elapsed since the date of the
election, the election of the Mayor has not be held.                            C
       2. Chapter II of the Delhi Municipal Corporation Act 19571 deals
with the establishment of Corporations. Section 35(1) provides that a
Corporation shall at its first meeting in each year elect one of its members
to be the Chairperson, who is known as the Mayor, and another member
to be the Deputy Mayor of the Corporation. Section 3 provides for the           D
establishment of the Municipal Corporation. Sub-section (3) of Section
3 indicates the composition of the Corporation. In terms of the provision,
a Corporation is to be composed of Councillors. Besides the Councillors
who are directly elected through the voters in the ward constituencies,
there are Councillors who are nominated by the Administrator. Yet others
are represented as ex officio representatives. Clause (b) of sub-section        E
(3) of Section 3 specifies the persons who shall be represented in a
Corporation. Among them are:
            “(i)   ten persons, who are not less than 25 years of age and who
                   have special knowledge or experience in municipal
                   administration, to be nominated by the Administrator”.       F
       The proviso to Section 3(3)(b)(i), however, lays down that “the
persons nominated under this sub-clause shall not have the right to vote
in the meetings of a Corporation”.
       3. Chapter V of the Act deals with procedure and the transaction
                                                                                G
of business by a Corporation. Section 72(1) provides that a Corporation
shall ordinarily hold at least one meeting in every month for the transaction
of business. Section 73 provides that the first meeting of a Corporation
after a general election shall be held as early as possible after the
1
    “Act”                                                                       H
584                SUPREME COURT REPORTS                          [2023] 5 S.C.R.


A     publication of the results of the election under Section 14 and shall be
      convened by the Administrator. Section 74 provides for the notice of
      meetings and transaction of business. Section 76(1) stipulates that a
      Mayor, or in his absence, the Deputy Mayor shall preside over every
      meeting of the Corporation. Section 77 makes provision for the Presiding
      Officer at a meeting for the election of Mayor. Clause (a) of Section 77
B
      provides that at a meeting for the election of a Mayor, the Administrator
      shall nominate a Councillor who is not a candidate for such an election
      to preside over the meeting. Section 78 provides for the method of deciding
      common questions. Section 82 empowers the Corporation to make
      regulations for the transaction of business at its meetings.
C             4. Though the jurisdiction of this Court has been invoked for seeking
      several 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) ha ve
      the right to vote at the first meeting of the Corporation where the Mayor
D     would be elected. The second issue pertains to the order for holding
      elections, more specifically, whether, as the petitioners assert, the election
      to the office of the Mayor shall be held first followed by the elections to
      the Deputy Mayor and other members of the Standing Committee, on
      which meetings the Mayor would preside. The opposing view point is
      that all elections would be held simultaneously.
E
            5. We have heard Dr A M Singhvi, senior counsel, with Mr Shadan
      Farasat, in support of the petition. Mr Sanjay Jain, Additional Solicitor
      General, 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 contesting
F     candidate 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 the
      Constitution which deals with Municipalities. In its material terms, Article
      243R provides as follows:
G            “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
H                    constituencies to be known as wards.
  SHELLY OBEROI v. OFFICE OF LIEUTENANT GOVERNOR                                 585
   OF DELHI [DR. DHANANJAYA Y CHANDRACHUD, CJI]

       (2)    The Legislature of a State may, by law, provide-                   A
              (a) for the representation in a Municipality of-
                      (i)     persons having special knowledge or
                               experience in Municipal administration;
                      (ii) the members of the House of the People and
                               the members of the Legislative Assembly of        B
                               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 electors within tile Municipal area;   C
                      (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;                                          D
              (b) the manner of election of the Chairperson of a
                      Municipality.”
       7. Clause (1) of Article 243R stipulates that all seats in the
Municipality shall be filled in by direct election held from the territorial
constituencies in the Municipal area, for which the Municipal area is
                                                                                 E
divided into wards. An exception, however, is stipulated in clause (2), in
terms of which the legislature of a State may, by law, provide for the
representation in a Municipality of persons fulfilling the descriptions set
out in clauses (i), (ii), (iii) and (iv). Article 243R(2)(a)(i) provides that
the legislature of a State may, by law, provide for the representation in a
Municipality of persons having special knowledge or experience in                F
Municipal administration. However, the proviso to clause (2) clearly
specifies that the persons who are referred to in paragraph (i) shall not
have the right to vote in the meetings of the Municipality. The legislature
of the State may also provide for the manner of election of the
Chairperson of the Municipality.
                                                                                 G
       8. Section 3(3) of the Act is a law as contemplated by Article
243R. In terms of clause (2) of Article 243R, Section 3(3)(b) provides
for the representation in the Municipality of persons who have special
knowledge or experience in Municipal administration. These persons
are nominated by the Administrator. However, in terms of the proviso to
Article 243R(2), a similar restriction is introduced in the proviso to Section   H
586             SUPREME COURT REPORTS                           [2023] 5 S.C.R.


A     3(3)(b)(i) of the Act, by which the nominated members do not have a
      right to vote in the meetings of the Municipal Corporation.
            9. The submission which has been urged on behalf of the petitioners
      by Dr A M Singhvi is that the nominated members of the Corporation do
      not have the right to vote, including at the election of the Mayor.
B            10. On the other hand, It has been urged both by the Solicitor
      General appearing on behalf of the Lt Governor and by Mr Sanjay Jain,
      Additional Solicitor General appearing on behalf of the Municipal
      Corporation, that the restriction on the right to vote in terms of Article
      243R(2) as well as the proviso to Section 3(3)(b)(i) applies only to the
C     regular meetings of the Corporation where the business of the Municipal
      Corporation is transacted and would not extend to the first meeting after
      the elections are held. Buttressing the submission, it has been urged that
      Section 73 requires the first meeting of the Corporation to be convened
      by the Administrator and Section 35 stipulates that at its first meeting the
      Corporation shall elect one of its members as a Mayor and another to be
D     a Deputy Mayor. Hence, it has been submitted that the prohibition on
      the exercise of the right to vote which attaches to the nominated members
      does 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 provide
E     for the manner of electing the Chairperson of a Municipality.
             11. We are unable to accept the submission which has been urged
      on behalf of the Municipal Corporation and the Lt Governor and by
      counsel supporting them. The source of the statutory provision is
      contained in Article 243R of the Constitution itself. Part IXA of the
F     Constitution was introduced by the Constitution (Seventy-fourth
      Amendment) Act 1992. Article 243R provides for the composition of
      Municipalities. As already noted, the Constitution provides for direct
      election to all the seats in Municipality, save as specified in clause (2)
      which enunciates the exceptions. Clause (2) contains provisions, inter
      alia, for the representation in a Municipality of persons having special
G     knowledge or experience in Municipal administration as well as other
      persons such as members of the House of the People and the Legislative
      Assembly and members of the Council of States and the Legislative
      Council of the States representing the specific constituency and the
      Chairpersons of the Committees constituted under clause (5) of Article
H     243S. The Constitution has imposed a restriction in terms of which
    SHELLY OBEROI v. OFFICE OF LIEUTENANT GOVERNOR                              587
     OF DELHI [DR. DHANANJAYA Y CHANDRACHUD, CJI]

nominated members who are brought in on account of their special                A
knowledge or experience in Municipal administration do not have the
right to vote. The same restriction finds statutory recognition in Section
3(3)(b)(i) of the Act. The above provisions indicate that persons who
are nominated under the sub-clause shall not have the right to vote in the
meetings of the Corporation. The Constitution and the Act place value           B
on their experience but the right to vote is not granted to them at meetings
of the Corporation. The meetings of the Corporation would include all
meetings, including the first meeting which is held after the holding of
the general election. Section 73 of the Act provides for the first meeting
to be convened by the Administrator as early as possible after the
publication of the results, while Section 35 provides for the election of       C
the Mayor and Deputy Mayor at the first meeting of the Corporation.
The prohibition on nominated members exercising the right to vote in
terms of Section 3(3)(b)(i) shall, therefore, also apply to the first meeting
of the Corporation at which the Mayor and, thereafter, the Deputy Mayor
are to be elected.                                                              D
        12. Apart from the above issue, it needs to be emphasized that
Regulation 7 of the Delhi Municipal Corporation (Procedure and Conduct
of Business) Regulations 1958 stipulates that as soon as the Mayor is
elected, “he shall preside over the meeting for the transaction of the rest
of the business thereof”. Regulation 8 provides for the election of the         E
Deputy Mayor and stipulates that the provisions of Regulation 6 shall
apply, as far as may be, to the election of the Deputy Mayor, subject to
the modification that any reference to the presiding authority shall be
construed as a reference to the Mayor. These provisions make it
abundantly clear that the election of the Mayor has to be held first. The
                                                                                F
elected Mayor is then required to preside over the election of the Deputy
Mayor as the presiding authority. Consequently, with this clarification, it
must be noted that the election of the Mayor shall be conducted first in
the first meeting of the Municipal Corporation of Delhi. Once the Mayor
is elected, the elected Mayor shall be the presiding authority for the
purpose of the election of the Deputy Mayor.                                    G
       13. The interpretation which we have placed on the provisions of
the statute is in accord with the judgment of a three-Judge Bench of this
Court in Ramesh Mehta v Sanwal Chand Singh2.

2
    (2004) 5 SCC 409                                                            H
588                 SUPREME COURT REPORTS                          [2023] 5 S.C.R.


A            14. We may also note, at this stage, that on 2 February 2023, the
      Urban Development Department of the Government of NCT of Delhi
      has issued a notification clarifying that the election of the Mayor, as
      required by Section 35 of the Act, shall first be held and the Mayor so
      elected will then assume the Chair and proceed to conduct the election
      of the Deputy Mayor and six members of the Standing Committee. The
B
      aforesaid notification was issued in the context of a meeting which was
      to be held on 6 February 2023, which could not be held on that day due
      to intervening circumstances.
            15. Mr Sanjay Jain has indicated that the same process would be
      followed at the ensuing meeting for the election of the Mayor, the Deputy
C     Mayor 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 at
D                     that election, the members who are nominated in terms of
                      Section 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 the
                      presiding authority for conducting the election of the Deputy
                      Mayor and the members of the Standing Committee at which
E                     also the prohibition on the exercise of vote by the nominated
                      members in terms of Section 3(3)(b)(i) shall continue to
                      operate; and
             (iii)    The notice convening the first meeting of the Municipal
                      Corporation of Delhi shall be issued within a period of twenty
F                     four hours. The notice shall fix the date for convening the
                      first meeting at which the election of the Mayor, Deputy
                      Mayor and members of the Standing Committee shall be
                      conducted in terms of the above directions.
             17. The petition is allowed in the above terms.
G            18. Pending application, if any, stands disposed of.

      Nidhi Jain                                                      Petition allowed.
      (Assisted by : Rakhi, LCRA)



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