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Smt. Bhoomi Chatter ... v. Commissioner, North ...
Factual and Procedural Background
This petition under Article 226 of the Constitution of India was filed in public interest by the Municipal Councillor of Ward No. 31, Narela Zone, seeking a writ of mandamus directing the Commissioner, Deputy Commissioner (Narela Zone) and the Chief Engineer of the North Delhi Municipal Corporation to implement decisions recorded in the Minutes of meetings held on 30 May 2012 and 9 August 2012 (copies of the Minutes were filed with the petition). The petition also sought a direction to decide and finalize the demand for 196 Safai Karamcharies as proposed in a noting dated 6 July 2012 of the Assistant Commissioner.
The Minutes record poor civic conditions in Ward No. 31 (bad condition of parks, non-functional street lights, narrow and silted drains, broken culverts) and remedial steps to be taken by municipal departments including increasing availability of Safai Karamcharies. The petitioner convened those meetings. On 5 December 2012 the Court asked why the petitioner, as the elected Municipal Councillor, had not been able to get the decisions implemented; counsel for the petitioner sought time and later filed an affidavit stating that officials had failed to act, compelling the petitioner to approach the Court.
Legal Issues Presented
- Whether a Municipal Councillor may seek a writ of mandamus against the Municipal Corporation and its officers to implement decisions taken in meetings convened by that Councillor (including finalization of the demand for 196 Safai Karamcharies).
- Whether an elected Municipal Councillor may use public interest litigation as a substitute for performing the executive/municipal governance functions entrusted to elected Councillors, or whether internal municipal mechanisms and the Councillor's supervisory role should be invoked first.
Arguments of the Parties
Petitioner (Municipal Councillor)
- The petitioner convened meetings on 30 May 2012 and 9 August 2012 in which directions were issued to municipal officials to remedy civic defects and to increase availability of Safai Karamcharies; the Minutes of those meetings were filed with the petition.
- Officials and employees of the Municipal Corporation, despite being directed to take action, have failed to do so; therefore the petitioner has sought the Court's direction (mandamus) to compel the respondents to discharge their duties.
- The petitioner filed an affidavit confirming election as Municipal Councillor in April 2012 and stating that the meetings were held at her instance and that officials failed to act.
The opinion does not contain a detailed account of any arguments advanced on behalf of the respondents; the Court's record reflects the petitioner's contentions and the Court's inquiries and observations.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Satish Chandra Khandelwal v. Union of India AIR 1983 Delhi 1 | Held that municipal government vests in the Corporation composed of Councillors and not in the Commissioner; the Commissioner cannot be blamed for mismanagement of the affairs of the Corporation; Councillors are primarily answerable to the people. | The Court relied on this authority to underscore that the elected Corporation (Councillors) is the seat of municipal governance and that the petitioner, being a Councillor, is part of that governing body and not an outsider entitled to ask the Court to perform the Corporation's governance functions. |
| Nirmal Kumar Jain v. Municipal Corporation of Delhi MANU/DE/1318/2000 | Held that the Commissioner is one of the authorities to carry out functions and is subject to directions of the supreme body, namely the General House comprising the Councillors; the Commissioner is subservient to the Corporation. | The Court invoked this precedent to reinforce that the Commissioner answers to the Corporation (the Councillors) and that supervisory and corrective measures against municipal officers lie within the Corporation's powers rather than requiring the Court to substitute governance. |
| C.L. Devgun… v. New Delhi Municipal Council & Ors. (2008) DLT 180 | Observed that the Court should first determine whether any internal mechanism for redressal exists and, if so, to first invoke the same before issuing writs against the Executive. | The Court applied this principle to note that the petitioner, as a Councillor, is part of the municipal governance machinery and should invoke internal mechanisms and supervisory powers rather than approaching the Court for relief that the Corporation is positioned to provide. |
| Dr. B. Singh v. Union of India (2004) 3 SCC 363 | Warned that public interest litigation should not be converted into political interest litigation. | The Court relied on this Supreme Court authority to caution that a Councillor's use of PIL to further governance tasks that she is elected to perform risks converting PIL into an instrument of political interest litigation and is inappropriate. |
| Aarti Mehra v. MCD, W.P.(C) No.14742/2006 (Division Bench, 18 September 2006) | Dismissed a petition preferred by another Municipal Councillor, observing that the Councillor had several platforms available for redressal of grievances and was not expected to merely address letters to authorities and then rush to court. | The Court cited this earlier Division Bench decision as precedent for refusing relief where an elected Councillor has not exhausted or utilized available municipal mechanisms and forums before approaching the Court. |
Court's Reasoning and Analysis
The Court proceeded by examining the nature and role of the petitioner and the municipal governance structure under the Delhi Municipal Corporation Act, 1957 as set out in the petition and supporting documents:
- Statutory structure: The Court noted that a Municipal Corporation is composed of Councillors chosen by direct election (Section 3), that Councillors elect the Mayor and Deputy Mayor annually (Section 35), and that the municipal government of the Corporation's area vests in the Corporation composed of those Councillors (Section 41). Obligatory functions relevant to the Ward are defined in Section 42. Chapter IV identifies authorities such as the Standing Committee, Ward Committee and the Commissioner, and the Committees are themselves composed of Councillors.
- Internal control and supervisory powers: The Court observed statutory provisions demonstrating the Corporation's supervisory powers over municipal officers: the Commissioner is appointed under Section 54 but is removable by a 3/5 majority resolution of Councillors; Section 70 empowers the Corporation to require reports from the Commissioner; Section 81(2) allows Councillors to ask the Commissioner questions; the Corporation appoints key officers (Section 89); Section 95 provides for punishment of municipal officers for neglect of duty. These provisions indicate that Councillors have means to govern and hold employees accountable.
- Role of the petitioner: The Court emphasized that the petitioner, as an elected Councillor and part of the Corporation, is tasked with supervising and ensuring performance by municipal employees. The petitioner's actions were limited to convening meetings and drawing the officers' attention to grievances; the Court questioned whether that sufficed to discharge the duties of an elected Councillor.
- Appropriateness of PIL by an elected representative: Citing authorities (including Satish Chandra Khandelwal and Dr. B. Singh), the Court reasoned that public interest litigation was intended to provide remedies to persons who cannot access justice and should not be used by elected representatives as a means to substitute their own executive functions or for political ends. The Court found a paradox in a Councillor seeking Court directions against the Corporation of which she is a part.
- Invocation of internal remedies and precedent: The Court applied the principle that where internal mechanisms for redressal exist, they should be invoked first (as observed in C.L. Devgun), and noted prior decisions refusing similar relief to Councillors who have alternative municipal forums available (Aarti Mehra).
- Conclusion of analysis: Bringing the statutory framework and precedents together, the Court concluded that the petitioner had not demonstrated that she had taken the supervisory or corrective steps available to her as a Councillor, and that resort to this Court for executive functions that the Corporation can and must perform was inappropriate.
Holding and Implications
HOLDING: The petition is dismissed. The Court found no merit in the petition and recorded "No costs."
Implications:
- The direct effect on the parties is that the petition seeking mandamus to compel the Municipality and its officers to implement the meeting decisions (including finalization of the demand for 196 Safai Karamcharies) is refused and the petitioner obtains no relief from the Court.
- The opinion emphasizes that an elected Municipal Councillor is part of the municipal governing body and is obliged to utilize statutory powers and internal municipal mechanisms to supervise and ensure performance by municipal officers rather than approaching the Court to perform executive governance functions.
- The Court reiterated doctrinal limits on the use of public interest litigation by elected representatives, aligning with cited precedents which caution against converting PIL into an instrument of political interest litigation.
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 9 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 6 July, 2012 of the Assistant Commissioner of the Municipality.
2. The Minutes of the meeting dated 30 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 9 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 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 3/5 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 v. Union of IndiaAIR 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 v. 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… v. New Delhi Municipal Council & Ors.… Council155 (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 v. 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 18 September, 2006 dismissed W.P(C) No. 14742/2006 titled Aarti Mehra v. 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.
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