Smt. Bhoomi Chatter Singh ... vs Commissioner, North Delhi ...
2013 Latest Caselaw 563 Del

           *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.

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

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.

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

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

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

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.

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

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.

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..