Neeraj Sharma v. Union of India

1. This public interest litigation has been preferred with the following prayers:- “1. Every provision of listed law in this petition as was in existence on the date of the commencement of the 74th amendment of constitution as was neither amended nor repealed cannot be enforced because of constitutional fetter imposed by Article 243ZF of Constitution;

2. Every provision of law has been enacted either due to absence of valid field of legislation or by committing violence with Part IXA of Constitution amount to bad laws and the same cannot be enforced;

3. Declare that the Ministry of Home Affairs Notification dated 12th November 2001 is a legal cypher and is non-est; and 2019:DHC:5645-DB

4. Direct the Respondents to frame rules required for giving effect to the provisions contained in section 107A of the aforesaid Act besides the bye laws needed to detect commencement of illegal constructions in the buildings starting from stage - 0 to the stage up to which occupancy certificate is in operation.”

2. Learned counsel for the petitioner has argued the only point to the fact that as per provision of the Constitution of India, especially Article 243W read with Section 41(1) and Section 54 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as „the DMC Act‟), the Municipal Commissioner cannot be given vast and wide powers. In fact all the powers are vested in the municipal corporation, especially as per Article 243W of the Constitution. It is further submitted by the learned counsel for the petitioner that looking to the provisions of the DMC Act, the Municipal Commissioner is given unbridled powers and is not subordinate to anybody. He submits that, in fact, the Municipal Commissioner should work as an employee of the municipal corporation. It is further submitted by the learned counsel for the petitioner that Municipal Commissioners are being appointed by the Central Government and they are not answerable to the municipal corporation. In fact, the municipal corporation should be given all the powers to pass the resolutions and the Municipal Commissioner should obey and carry out the resolutions of the municipal corporation. This is the only point canvassed by the learned counsel for the petitioner.

3. Learned counsel appearing for the respondent submitted that looking to the provisions of the Constitution of India and the DMC Act and especially looking to Section 2(21A) read with Sections 54 to 70 of the DMC Act, there are provisions for appointment and working of the municipal corporation especially the powers and authorities have been defined under Section 44 of the DMC Act. It is further submitted by the counsel for the respondents that Municipal Commissioner is always answerable to the Municipal Corporation as stated in the DMC Act. Learned counsel for the respondents have taken this Court to various Articles of the Constitution of India and the provisions of the DMC Act and submitted that the powers vested in the Municipal Commissioner is absolutely legal and there is no excessive delegation of the power.

4. Having heard the learned counsel for the parties, we find that the only contention raised by the counsel for the petitioner is that Municipal Commissioners should be made answerable to the municipal corporation otherwise Municipal Commissioner will not taking care of the need of the Corporation. We are not in agreement with the contention raised by the counsel for the petitioner, especially looking to Article 243W of the Constitution of India read with the provisions of the DMC Act.

5. It ought to be kept in mind that every time, every resolution cannot be passed by the general body of the municipal corporation. There is bound to be assignments of work to different working bodies/authorities under the DMC Act. Looking to Section 44 of the DMC Act, there are different authorities. For ready reference, Section 44 of the DMC Act reads as under:- “44. Enumeration of municipal authorities.—For the efficient performance of its functions, there shall be the following municipal authorities under the Corporation, namely:— (a) the Standing Committee; (b) the Wards Committee; and

(c) the Commissioner.”

6. In view of the aforesaid provisions, it is clear that there is a Standing Committee as also the Wards Committee and the Commissioner. Looking to Sections 54 to 70 of the DMC Act, if the Commissioner wants to proceed on leave, such leave is to be sanctioned by the Standing Committee. Moreover, as per Section 58 of the DMC Act, the Municipal Commissioner is also answerable to the Standing Committee. Under Section 59, the functions of the Municipal Commissioner have been pointed out categorically. It ought to be further kept in mind that for every type of administrative work, general body meeting is not required to be called. The work of the different authorities has already been defined under the DMC Act. The delegation of the power to the Commissioner cannot be labelled as excessive delegation of the power.

7. Looking to the provisions of Section 45 onwards of the DMC Act, the constitution of the Standing Committee and the constitution of the Wards Committee has been mentioned, there powers and functions have also been referred to under the DMC Act. Thus, by no stretch of imagination, it can be said that unbridled, uncontrolled and unguided power has been delegated to the Municipal Commissioner. The powers of the Municipal Commissioner is always coupled with duties. As and when any violation of the duties by the Municipal Commissioner is pointed out, action can always be taken in accordance with law by the competent Courts. There cannot be a general remark that the powers given to the Municipal Commissioner are without any authority of law. The work to be done by the municipal corporation cannot always be done by the general body of the municipal corporation. There are multiple functions which can be performed by different authorities so that each time a general body meeting need not be convened.

8. We, therefore, see no reason to entertain this writ petition. The same is accordingly dismissed. Liberty is, however, reserved with the petitioner to move this Court in case of specific violation by the Commissioner of the provisions of the DMC Act. As and when such type of petition or litigation is filed, the same can be decided looking to the facts and circumstances of the case.

CHIEF JUSTICE C.HARI SHANKAR, J OCTOBER 31, 2019 „anb‟