Rama Aggarwal And Ors. vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 972 Del

JUDGMENT

S.B. Sinha, C.J.

1. The petitioner in this writ petition inter alia has prayed for the following reliefs:

"A. This Hon'ble Court may be pleased to quash the Delhi Development Act, 1957 and its creature Delhi Development Authority.

 B.     This Hon'ble Court may also be pleased to quash the Delhi Municipal Corporation Act, 1957 as amended by Act 67 of 1993. 
 

 C.     This Hon'ble Court may also be pleased to quash Sections 330A and 349A, 5, 6 and 31 of the Delhi Municipal Corporation Act, 1957 in case this Hon'ble Court is not inclined to quash the Delhi Municipal Council Act, 1957 as a whole. 
 

 D.    This Hon'ble Court may be pleased to quash the Constitution (69th Amendment) Act, particularly Article 239AA of the Constitution in Part VIII thereof under the heading Special provisions in respect of Delhi. 
 

 E.     This Hon'ble Court may be pleased to consider clubbing the CWP No. 1516/1917, Prof. M.L. Sondhi v. Union of India and 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. 
 

 G.    This Hon'ble Court may be pleased to pass any other direction(s), order(s) as it may deem fit and proper in the facts and circumstances of this case."  
 

 At the outset, we may notice that CW No. 1516/97 has nothing to do with this writ petition. 
 

2. The prayers of the petitioners apparently are self-contradictory. The learned Counsel appearing for the petitioners despite the a forementioned prayers having been made in the writ petition at the time of hearing of the writ petition confined his argument only to Section 6 of the Delhi Development Authority Act urging that the same is violative of part IXA of the Constitution of India.

3. Section 6 of the Delhi Development Authority Act reads as under:

"The objects of the Authority shall be to promote and secure the development of Delhi according to plan and for that purpose the Authority shall have the power to acquire, hold, manage and dispose of land and other property, to carry out building, engineering, mining and other operations, to execute works in connection with supply of water and electricity, disposal of sewage and other services and amenities and generally to do anything necessary or expedient for purposes of such development and for purposes incidental thereto:

Provided that save as provided in this Act, nothing contained in this Act shall be construed as authorising the disregard by the Authority of any law for the time being in force."

4. According to learned Counsel Part IX A of the Constitution of India which was inserted by Constitution (74th Amendment) Act, 1992 and came into force on 1.6.1993 mandates that the matter pertaining to grant of essential services should be provided by the Municipality within the meaning of Clause (e) of Article 243P of the Constitution. In terms of the said provisions Municipality means institution of self-Government constituted under Article 243Q of the Constitution of India.

Article 243Q reads as under :

"Article 243Q(1). There shall be constituted in every State-

 (a)    a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area; 
 

 (b)    a Municipal Council for a smaller urban area; and   
 

 (c)    a Municipal Corporation for a larger urban area, in accordance with the provisions of this part:  
 

Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the Municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township.

(2) In this article, "a transitional area", "a smaller urban area" or "a larger urban area" means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this part."

Delhi is not a state, It is a Union Territory and it is governed by a special provision contained in Article 239AA and Article 239B.

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.

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.

11. A notification dated 24.5.1994 was issued by the President by which Article 243R, 243T, 243U and 243V were substituted which reads as under:

"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 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. In Article 243U-

(1) for Clause (3), the following clause shall be substituted, namely-

'(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 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'."

12. Keeping in view the aforesaid provisions, we are of the opinion that the contention raised by the learned Counsel for the petitioner is wholly incorrect,

13. Furthermore by a notification dated 12.11.2001 the Government of India in exercise of powers conferred by the proviso to Article 243ZB directed that the provisions under Articles 243ZD and 243ZE of the Constitution shall not be applied to the NCT of Delhi. In this view of the matter it is no longer obligatory to establish either District Planning Committee or a Metropolitan Planning Committee are not required to be constituted.

14. This writ petition is accordingly dismissed with costs. Advocate fee assessed at Rs. 5,000/-.