Stepping in after the newly elected Delhi civic body failed thrice to elect a new mayor, the Supreme Court on Friday ordered issuance of a notice within 24 hours for convening the first meeting of the MCD to fix the date of election for mayor, deputy mayor and members of the standing committee.
Holding that nominated members of the Municipal Corporation of Delhi (MCD) cannot vote in the mayoral election, a bench of Chief Justice DY Chandrachud and Justices PS Narasimha and JB Pardiwala directed that the election of the mayor shall be conducted at the first MCD meet, and once elected, the mayor shall preside over the deputy mayor's election.
The MCD could not elect the mayor on three previous occasions amid tumult as the Aam Aadmi Party and Bharatiya Janata Party councillors quarrelled over the voting rights of the nominated members.
The top court was hearing a plea moved by the ruling AAP’s mayoral candidate, Shelly Oberoi, seeking an early conduct of the election.
The bench rejected the submission of Solicitor General Tushar Mehta, appearing for the lieutenant governor, and Additional Solicitor General Sanjay Jain, representing the municipal body, that aldermen (members nominated by the LG to MCD) can vote in the mayoral polls.
"The Municipal Corporation of Delhi (MCD) is an important global body and it is desirable that the election to the post of mayor is held at the earliest. As a national capital it does not look good if the mayoral polls are held up," the bench observed orally.
Referring to Article 243R of the Constitution, the apex court said the Constitution has imposed a restriction in terms of which nominated members do not have the right to vote.
"We have heard the counsel for the parties. We are unable to accept the submission on behalf of the municipal corporation. The Constitution has imposed a restriction in terms of which nominated members who are brought in on account of their special knowledge in municipal administration could not have right to vote. The prohibition on nominated members in the exercise of the right to vote applies on the first meeting.
"The notice for the election of mayor and the first meeting of the MCD shall be issued within 24 hours and the notice shall fix the date at which the elections of mayor, deputy mayor and standing committee members shall be held," the bench said.
At the outset, senior advocate A M Singhvi, appearing for AAP mayoral candidate Shelly Oberoi, submitted that nominated persons cannot vote as per Article 243R of the Constitution.
"First you elect the mayor and then the mayor presides over the rest of the meeting. Our lordships should fix a date where the election shall take place. Whatever happens they should hold the elections," Singhvi said.
The ASG opposed Singhvi's submission and said the meeting of the municipality is different from the first meeting which is a special provision carved out for election of the mayor.
"The first meeting is the foundational meeting which is being held to bring into existence the corporation itself- the entire corporation, not just the councillor. And, in the first meeting, all can vote. Once the mayor is elected, only then corporation kicks in," Jain submitted.
Mehta also argued that all members can participate in the meeting.
Article 243R, which deals with the issue of the composition of municipalities, reads: "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."
The apex court had on February 8, sought the responses of the lieutenant governor's (LG) office, MCD's pro-tem presiding officer Satya Sharma and others on Oberoi's plea.
Both the BJP and the AAP have accused each other of preventing the mayoral poll, with the bone of contention being the appointment of aldermen and their voting rights in the House.
The AAP, which has a majority with 134 out of 250 elected members, has alleged that the BJP is trying to steal its mandate by giving voting rights to the nominated members.
AAP mayoral candidate Oberoi had moved the top court earlier as well seeking directions to ensure mayoral election in Delhi in a time-bound manner, but the plea was withdrawn in view of the election being scheduled for February 6.
The top court had on February 3 observed that the major grievance of the petitioner was that mayoral election was not held but now the election had been notified and granted her liberty to come back in case of any grievances.
The mayoral election in the national capital was stalled last month for the second time as the MCD House was adjourned indefinitely by the lieutenant governor-appointed presiding officer, following a ruckus created by some councillors.
The first meeting of the newly-elected MCD House was also adjourned on January 6 amid clashes between AAP and BJP members.
