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2019 (2) TMI 1950
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....CTD (GNCTD) vis-a-vis the Central Government (or to put it more precisely, in juxtaposition to the Lieutenant Governor (LG) of GNCTD, as nominee of the President of India). This issue centered around the interpretation that needed to be given to Article 239AA of the Constitution of India. 2) Undoubtedly, NCTD was and remains Union Territory and continues to be governed by Part VIII of the Constitution which pertains to 'the Union Territories'. Article 239, which substituted the original Article by the Constitution (Seventh Amendment) Act, 1956, w.e.f., 01 November, 1956 deals with administration of Union Territories. As the nomenclature itself suggests, such territories are that of 'Union", i.e., Union of India. That is why Article 239 stipulates that every Union Territory is to be administered by the President acting, to such extent as he thinks fit, through an Administrator to be appointed by him with such designation as he may specify. The opening words of Article 239, however, are 'save as otherwise provided by Parliament by law', which meas that Parliament by law can provide different schemes of administration for such Union Territories, i.e., different than what is stated ....
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....ned by Justice Dipak Misra, Chief Justice of India (as his Lordship then was) to which Justice Khanwilkar and one of us (Justice A.K. Sikri) concurred. Two other separate opinions are rendered by Justice Dr. D.Y. Chandrachud and one of us (Justice Ashok Bhushan). After giving answers to the moot questions that arise, all these appeals were directed to be listed before the Regular Bench for deciding the individual issues and disputes that arise in these appeals. This is how the matters were heard, on its own merits, depending upon subject matter of each of these appeals, by this Bench. We propose to decide these disputes by means of the present judgment. Issues: 5) At this juncture, we would like to state in brief the precise subject matter of these appeals: 6) As pointed out above, Civil Appeal No. 2357 of 2017 arises out of the common judgment dated August 04, 2016 passed by the High Court in a batch of writ petitions. In these writ petitions, number of notifications passed by the Government of India, or by the GNCTD were questioned by the writ petitioners. Some writ petitions were filed by GNCTD; one by Union of India and few others by some individuals. The orders and/or....
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....er Section 108 of Electricity Act, 2003 without placing before the Lieutenant Governor for his views/concurrence. 8. W.P.(C) No.348/2016 Ramakant Kumar vs. GNCTD Notification dated 22.12.2015 issued by the Directorate of Vigilance, GNCTD under Commission of Inquiry Act, 1952 constituting the Commission of Inquiry without placing before the Lieutenant Governor for his views/concurrence. 9. W.P.(Crl.) No.2099/2015 GNCTD vs. Nitin Manawat Order passed by the Lt.Governor, NCT of Delhi under Section 24 of Cr.P.C. appointing a Special Public Prosecutor to conduct the trial in FIR No.21/2012 in the Special Court under PC Act 7) From the above, it can be discerned that following issues arise for consideration: (i) The powers of GNCTD vis-a-vis Lieutenant Governor in respect of matters connected with 'services'. It may be mentioned, at this juncture itself that in Delhi there is no Public Service Commission. Since it is the Union Territory, the manpower/public servants which are assigned to Delhi are either those who belong to All India Services like Indian Administrative Service, Indian Po....
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....ower lies with the Lieutenant Governor to the exclusion of GNCTD or it is the GNCTD which is competent to appoint Public Prosecutors, including Special Public Prosecutors in individual cases. Judgment of the Constitution Bench 8) Before we come to the grip of these issues it would be essential to discuss in brief the provisions of Article 239AA of the Constitution, as interpreted by the Constitution Bench judgment dated July 04, 2018 (hereinafter referred to as CB Judgment). 9) Relevant Articles of the Constitution, which need to be noted amongst others in this behalf, are Articles 239 and 239AA, which read as under : "239. Administration of Union territories.-(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. (2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently....
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....y the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly. (4) There shall be a Council of Ministers consisting of not more than ten per cent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion: Provided ....
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....ernment of NCT of Delhi. In the majority opinion, it was emphasised at the beginning itself that while entering into the process of interpretation of Article 239AA of the Constitution, the Court is supposed to take aid of new tools such as constitutional pragmatism having due regard for sanctity of objectivity, realisation of the purpose in truest sense by constantly reminding one and all about the sacrosanctity of democratic structure envisaged by our Constitution, elevation of the precepts of constitutional trust and morality, and the solemn idea of de-centralisation of power. This method of understanding is described in the judgment as 'confluence of the idea and spirit of the Constitution'. The court also emphasised that interpretation of Article 239AA of the Constitution is not to be done in an exclusive compartment but in the context in which it has been introduced and also keeping in view the conceptual structure of the other relevant Articles of the Constitution. 11) In this process, the Court recapitulated brief history of Delhi from its inception as Capital of India in the year 1911 upto the stage of insertion of Article 239AA in the Constitution, which was the result ....
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....sing of 56 elected Members and five nominated Members. In the same year, on 20-8-1966, the Ministry of Home Affairs issued S.O. No. 2524 that provided, inter alia, that the Lieutenant Governor/Administrator/Chief Commissioner shall be subject to the control of the President of India and exercise such powers and discharge the functions of a State Government under the Commissions of Inquiry Act, 1952 within the Union Territories. In the year 1987, the Balakrishnan Committee was set up to submit its recommendations with regard to the status to be conferred on Delhi and the said Committee recommended that Delhi should continue to be a Union Territory but there must be a Legislative Assembly and Council of Ministers responsible to the said Assembly with appropriate powers; and to ensure stability, appropriate constitutional measures should be taken to confer the National Capital a special status. The relevant portion of the Balakrishnan Committee Report reads as follows: "6.5.5. In Paras 6.5.2. and 6.5.3. we have briefly summarised the arguments for and against making Delhi a constituent State of the Union. After the most careful consideration of all the arguments and on an obj....
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....not be available to the Union, thereby prejudicing the discharge of its national duties and responsibilities. xx xx xx LIEUTENANT GOVERNOR AND COUNCIL OF MINISTERS 6.7.19. As a necessary corollary to the establishment of a responsible Government for Delhi the structure of the executive should be more or less on the pattern provided by the Constitution. Accordingly, there should be a Head of the Administration with a Council of Ministers answerable to the Legislative Assembly. As Delhi will continue to have the status of a Union Territory, Article 239 will apply to it and so it will have an Administrator with such designation as may be specified. The present designation of the Lieutenant Governor may be continued and recognised in the Constitution itself. ... xx xx xx 6.7.21. The Administrator should be expressly required to perform his functions on the aid and advice of the Council of Ministers. The expression "to aid and advice" is a well-understood term of art to denote the implications of the Cabinet system of Government adopted by our Constitution. Under this system, the general rule is that the exercise of executive functions by the....
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....provision of this kind was made for this very reason not only in the 1951 Act, but also in the 1963 Act relating to the Union Territories as well as in the 1978 Bill." 12) The majority opinion thereafter took note of the arguments of both sides. Discussion that followed thereafter was on the following aspects: * Ideals/principles of representative governance * Constitutional morality * Constitutional objectivity * Constitutional governance and the conception of legitimate constitutional trust * Collective responsibility * Federal functionalism and democracy * Collaborative federalism * Pragmatic federalism * Concept of federal balance * Interpretation of the Constitution * Purposive interpretation * Constitutional culture and pragmatism 13) After discussing in detail the aforesaid tools necessarily required for proper and just interpretation of the concerned provisions, the Court undertook the exercise of interpreting Articles 239, 239A and 239AA of the Constitution. 14) Since, this interpretation is material and significant for deciding specific issues which have be....
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....ctive of anything contained in Part VI of the Constitution, the President may appoint the Governor of a State to act as an Administrator of a Union Territory which is adjacent and/or contiguous to the State of which he is the Governor. The Governor of a State who is so appointed as an Administrator of an adjoining UT shall exercise his functions as an Administrator of the said UT independently and Autonomously and not as per the aid and advice of the Council of Ministers of the State of which he is the Governor. 179. In this regard, the Court, in the case of Shamsher Singh (supra), has observed thus:- "54. The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in Articles to which reference has been made. To illustrate, Article 239(2) states that where a Governor is appointed an Administrator of an adjoining Union Territory he shall exercise his functions as such Administrator independently of his Council of Ministers." 180. Again, the Court, while interpreting Article 239 in Union of India and others v. Surinder S. observed:- "The unamended Article 239 envisaged administrati....
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....vision which amends or has the effect of amending this Constitution." 182. The aforesaid Article was brought into force by the Constitution (Fourteenth Amendment) Act, 1962. Prior to the year 1971, under Article 239-A, Parliament had the power to create by law legislatures and/or Council of Ministers for the then Union Territories of Himachal Pradesh, Tripura, Manipur, Goa and Daman and Diu. Thereafter, on 25-1-1971, Himachal Pradesh acquired Statehood and consequently, Himachal Pradesh was omitted from Article 239-A. Subsequently, on 21-1-1972, Tripura and Manipur were granted Statehood as a consequence of which both Manipur and Tripura were omitted from Article 239-A. 183. Likewise, with the enactment of the Goa, Daman and Diu Reorganisation Act, 1987 on 30-5-1987, both Goa and Daman and Diu were omitted from Article 239-A. Parliament, under the Government of Union Territories Act, 1963, created legislatures for the then Union Territories and accordingly, even after 30-5-1987, the applicability of Article 239-A stands limited to UT of Puducherry. 184. As a natural corollary, the Union Territory of Puducherry stands on a different footing from other UTs ....
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.... matters enumerated in the State List or in the Concurrent List insofar as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List insofar as they relate to the said Entries 1, 2 and 18. (b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union Territory or any part thereof. (c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National....
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.... be deemed to be a reference to this Article or Article 239-AB, as the case may be. 239-AB. Provision in case of failure of constitutional machinery.-If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied- (a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of Article 239-AA or of any law made in pursuance of that Article; or (b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of Article 239-AA or of all or any of the provisions of any law made in pursuance of that Article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of Article 239 and Article 239-AA." (emphasis supplied) "186. We deem it appropriate to refer to the Statement of Objects and Reasons for the amendment ....
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.... the Constitution as well as a couple of paragraphs of the Sixth Schedule wherein the words "in his discretion" are used in relation to certain powers of the Governor to highlight the fact that a Governor can act in his discretion only when the provisions of the Constitution so permit. 193. In this context, we may refer with profit to the authority in Devji Vallabhbhai Tandel v. Administrator of Goa, Daman & Diu [Devji Vallabhbhai Tandel v. Administrator of Goa, Daman & Diu, (1982) 2 SCC 222 : 1982 SCC (Cri) 403] . In the said case, the issue that arose for consideration was whether the role and functions of the Administrator stipulated under the Union Territories Act, 1963 is similar to those of a Governor of a State and as such, whether the Administrator has to act on the "aid and advice" of the Council of Ministers. The Court considered the relevant provisions and after comparing the language of Articles 74 and 163 of the Constitution with the language of Section 44 of the Union Territories Act, 1963, it observed that the Administrator, even in matters where he is not required to act in his discretion under the Act or where he is not exercising any judicial or quasi-jud....
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....nnot act on his own." (emphasis supplied) 16) Thereafter, various other judgments were taken note of including Nine Judge Bench in NDMC v. State of Punjab (1997) 7 SCC 339 case which specifically deal with the status of NCTD. Following paragraphs on this aspect need a reproduction: "199. The Governor of a State, as per Article 163, is bound by the aid and advice of his Council of Ministers in the exercise of his functions except where he is, by or under the Constitution, required to exercise his functions or any of them in his discretion. Thus, the Governor may act in his discretion only if he is so permitted by an express provision of the Constitution. 200. As far as the Lieutenant Governor of Delhi is concerned, as per Article 239-AA(4), he is bound by the aid and advice of his Council of Ministers in matters for which the Delhi Legislative Assembly has legislative powers. However, this is subject to the proviso contained in clause (4) of Article 239-AA which gives the power to the Lieutenant Governor that in case of any difference between him and his Ministers, he shall refer the same to the President for a binding decision. This proviso to clause (4) has....
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....rence to underscore and emphasise the intention of Parliament, while inserting Article 239-AA in the exercise of its constituent power, to treat the Legislative Assembly of the National Capital Territory of Delhi as a set of elected representatives of the voters of NCT of Delhi and to treat the Government of NCT of Delhi as a representative form of Government. 216. The Legislative Assembly is wholly comprised of elected representatives who are chosen by direct elections and are sent to Delhi's Legislative Assembly by the voters of Delhi. None of the Members of Delhi's Legislative Assembly are nominated. The elected representatives and the Council of Ministers of Delhi, being accountable to the voters of Delhi, must have the appropriate powers so as to perform their functions effectively and efficiently. This is also discernible from the Balakrishnan Committee Report which recommended that though Delhi should continue to be a Union Territory, yet it should be provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. 217. Sub-clause (a) of clause (3)....
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.... the proviso makes him competent to take such action and issue such directions as he deems necessary. 222. A conjoint reading of Article 239-AA(3)(a) and Article 239-AA(4) reveals that the executive power of the Government of NCT of Delhi is coextensive with the legislative power of the Delhi Legislative Assembly which is envisaged in Article 239-AA(3) and which extends over all but three subjects in the State List and all subjects in the Concurrent List and, thus, Article 239-AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power. 223. Article 239-AA(3)(a) reserves Parliament's legislative power on all matters in the State List and Concurrent List, but clause (4) nowhere reserves the executive powers of the Union with respect to such matters. On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact whereas the policy of the legislation has to be given effect to by the executive for which the Gover....
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....19) The majority opinion also concentrated on the GNCTD Act, 1991 as well as Transaction of Business of the GNCTD Rules, 1993. Its analysis of various provisions of the said Act and Rules led to, inter alia, the following discussion: "244. Upon scanning the anatomy of the 1991 Act, we find that the Act contains fifty-six sections and is divided into five Parts, each dealing with different fields. Now, we may refer to some of the provisions contained in Part IV of the 1991 Act titled "Certain Provisions relating to Lieutenant Governor and Ministers" which are relevant to the case at hand. Section 41 deals with matters in which the Lieutenant Governor may act in his discretion and reads thus: "41. Matters in which Lieutenant Governor to act in his discretion.-(1) The Lieutenant Governor shall act in his discretion in a matter- (i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President; or (ii) in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi-judicial functions. ....
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.... "The conclusions in seriatim 284. In view of our aforesaid analysis, we record our conclusions in seriatim: 284.1. While interpreting the provisions of the Constitution, the safe and most sound approach for the constitutional courts to adopt is to read the words of the Constitution in the light of the spirit of the Constitution so that the quintessential democratic nature of our Constitution and the paradigm of representative participation by way of citizenry engagement are not annihilated. The courts must adopt such an interpretation which glorifies the democratic spirit of the Constitution. 284.2. In a democratic republic, the collective who are the sovereign elect their law-making representatives for enacting laws and shaping policies which are reflective of the popular will. The elected representatives being accountable to the public must be accessible, approachable and act in a transparent manner. Thus, the elected representatives must display constitutional objectivity as a standard of representative governance which neither tolerates ideological fragmentation nor encourages any utopian fantasy, rather it lays stress on constitutional ideologie....
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.... 284.8. The constitutional vision beckons both the Central and the State Governments alike with the aim to have a holistic edifice. Thus, the Union and the State Governments must embrace a collaborative federal architecture by displaying harmonious coexistence and interdependence so as to avoid any possible constitutional discord. Acceptance of pragmatic federalism and achieving federal balance has become a necessity requiring disciplined wisdom on the part of the Union and the State Governments by demonstrating a pragmatic orientation. 284.9. The Constitution has mandated a federal balance wherein independence of a certain required degree is assured to the State Governments. As opposed to centralism, a balanced federal structure mandates that the Union does not usurp all powers and the States enjoy freedom without any unsolicited interference from the Central Government with respect to matters which exclusively fall within their domain. 284.10. There is no dearth of authorities with regard to the method and approach to be embraced by constitutional courts while interpreting the constitutional provisions. Some lay more emphasis on one approach over the other, while some em....
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....dent for final decision. 284.14. The interpretative dissection of Article 239-AA(3)(a) reveals that Parliament has the power to make laws for the National Capital Territory of Delhi with respect to any matters enumerated in the State List and the Concurrent List. At the same time, the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List. 284.15. A conjoint reading of clauses (3)(a) and (4) of Article 239-AA divulges that the executive power of the Government of NCTD is coextensive with the legislative power of the Delhi Legislative Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State List. However, if Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by Parliament. 284.16. As a natural corollary, the Union of India has exclusive executive power with respect to NCT of Delhi relating to the thre....
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....d his Ministers. The Lieutenant Governor and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue. By contemplating such a procedure, the 1993 TBR suggest that the Lieutenant Governor must work harmoniously with his Ministers and must not seek to resist them at every step of the way. The need for harmonious resolution by discussion is recognised especially to sustain the representative form of governance as has been contemplated by the insertion of Article 239-AA. 284.21. The scheme that has been conceptualised by the insertion of Articles 239-AA and 239-AB read with the provisions of the GNCTD Act, 1991 and the corresponding the 1993 TBR indicates that the Lieutenant Governor, being the administrative head, shall be kept informed with respect to all the decisions taken by the Council of Ministers. The terminology "send a copy thereof to the Lieutenant Governor", "forwarded to the Lieutenant Governor", "submitted to the Lieutenant Governor" and "cause to be furnished to the Lieutenant Governor" employed in the said Rules leads to the only possible conclusion that the decisions of the Council of Ministers must be communicated to t....
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.... area of difference at the appropriate stage. Ratio of the Judgment: 22) There is some dispute as to the exact ratio laid down in the judgment of the Constitution Bench as well as the precise principles set out therein. As per the the appellants, the Constitution Bench has accepted that in a democratic setup where a Government is formed on the basis of elections by the people, it is that Government, through Council of Ministers, which has the right to govern. Accepting this fundamental principle as enshrined in the Constitution, the Constitution Bench has recognised that Legislative Assembly for NCTD has the power to make laws for the whole or any part of the NCTD, with respect to any of the matters enumerated in the State List or in the Concurrent List. The only exclusion where the Legislative Assembly of NCTD is debarred from making laws, are the subject matters of Entries 1, 2 and 18 of the State List and Entries 64, 65, 66 of the State List insofar as these Entries related to the said Entries 1, 2 and 18. The CB judgment specifically addressed the issue of the executive power of the GNCTD, viz., whether it is co-extensive with the legislative power. To that extent, the pr....
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....t, which is clear from the plain language of Article 239AA of the Constitution itself. 26) The detailed submissions which were made by M/s. C.A. Sundaram, Rakesh Dwivedi and Maninder Singh, learned Senior Counsel who appeared for Union of India in different appeals are of the following nature: 27) It is submitted that two primary contentions had been raised on behalf of the Government of NCT of Delhi before the Delhi High Court as well as before this Court. It had been contended that:- (i) Article 239 has no applicability whatsoever in the case of NCT of Delhi; and (ii) NCT Delhi deserves to be treated as a State and not as a Union Territory because it has an elected Council of Ministers like any other State. 28) It is argued that the above-mentioned contentions had been raised on behalf of the Government of NCT of Delhi only with a view to claim exclusive Executive jurisdiction in relation to Entries in List II and List III of the 7th Schedule of the constitution of India (except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List insofar as they relate to the said Entries a, 2 and 18). This claim was foun....
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....w and 18 and shall continue to possess the non-exclusive executive jurisdiction in relation to all other entries in List II as well as List III of the Seventh Schedule. 31) The respondents further argued that there are three prominent features of the judgment of this Court in the case of Rai Sahib Ram Jawaya Kapur & Ors. v. State of Punjab3. Those prominent three features are:- (i) There has to be a vestige of executive power in any Government before it makes any claim to exercise the said executive power before framing of any legislation. It paragraphs 12 and 14 of the said judgment in Ram Jawaya Kapur's case, this Court has referred to the vestige of executive power in the President of India under Article 53 and in the Governor of each State under Article 152 of the Constitution of India. (ii) Having considered the above-mentioned aspect of vestige of executive power in the Government, this Court held that with reference to all the Entries in List I, the Union Government shall have the Exclusive Executive Jurisdiction co-extensive with the legislative power and would be able to exercise the said executive power without framing any legislation. Similarly, the ....
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....e Lieutenant Governor of Delhi is not that of a Governor of a State, rather he remains an Administrator, in a limited sense, working with the designation of Lieutenant Governor. Authored by Dr. Justice D.Y. Chandrachud: The Government of Union Territories Act, 1963 373. On 10-5-1963, the Government of Union Territories Act, 1963 was enacted. The 1963 Act defined the expression "Administrator" in Section 2(1)(a) as: "2. (1)(a) "Administrator" means the administrator of a Union Territory appointed by the President under Article 239;" "Section 3 provided for a Legislative Assembly. Section 18 provided for the extent of legislative power in the following terms: "18. Extent of legislative power.-(1) Subject to the provisions of this Act, the Legislative Assembly of the Union Territory may make laws for the whole or any part of the Union Territory with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution insofar as any such matter is applicable in relation to Union Territories. (2) Nothing in sub-section (1) shall derogate from the powers conferred on Parliament by the Co....
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....o that the decision be not implemented. The overall exercise of administration of the Union Territory is conferred on the President, which is clear from the provisions contained in Part VIII of the Constitution. Although, it was contended by the appellant that Article 239 is not applicable with regard to NCTD after Article 239-AA has been inserted in the Constitution. The above submission cannot be accepted on account of the express provisions which are mentioned under Article 239-AA and Article 239-AB itself. Article 239-AA clause (1) itself contemplates that Administrator appointed under Article 239 shall be designated as the Lieutenant Governor. Thus the Administrator appointed under Article 239 is designated as the Lieutenant Governor. Article 239-AB is also applicable to NCTD. Article 239-AB in turn refers to any apply Article 239. The provisions contained in Part VIII of the Constitution have to be looked into in its entirety. Thus, all the provisions of Part VIII have to be cumulatively read while finding out the intention of the Constitution-makers, which makes it clear that Article 239 is also applicable to NCTD." 34) From the above, contention raised is that the necess....
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....vailable only to a State and not to any Union Territory. It is held in the judgment dated 04.07.2018 that NCT Delhi is a Union Territory and not a State. Entries in List II and List III of the 7th Schedule, other than Entries 1,2 and 18 of List II and Entries 64,65 and 66 of that List insofar as they relate to the said Entries 1,2 and 18, and also other than those excluded by the phrase "insofar as any such matter is applicable to Union Territories." 37) It is also submitted that it is neither compatible nor can the argument co-exist that even when the Constitution Bench categorically rejected the contentions of Government of NCTD, including the contention that it is a State and Article 239 would not apply in the case of NCT Delhi, it can still be said that Government of NCTD would possess the exclusive Executive jurisdiction in relation to all Entries in List II (except matters with respect to Entries 1,2 and 18 of the State List and Entries 64,65 and 66 of that List insofar as they relate to the said Entries 1,2 and 18) of the Seventh Schedule. Such a contention would lead to an an....
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....f the President and in regard to withholding of his assent to a Bill which has been passed by the Legislative Assembly in comparison with the duties of a Governor of a State. Matters such as the presentation of the annual financial statement or supplementary, additional or excess grants require previous sanction of the President. The President has been conferred with the power to issue directions in regard to the official language of the National Capital Territory. The Lieutenant Governor has been vested with the power to act in his own discretion in matters which fall outside the ambit and power of the Legislative Assembly and which have been delegated to him by the President as well as in regard to those matters where he is required under law to exercise his own discretion or to act in exercise of judicial or quasi-judicial functions. Rules for the Conduct of Business are framed by the President in relation to the National Capital Territory, including for the allocation of business. They would include the procedure to be followed where there is a difference of opinion between the Lieutenant Governor and the Council of Ministers. Section 49, which has a non obstante provision, sub....
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....e powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts....." 40) On the strength of these provisions it is argued that it is abundantly clear that in the case of States, the Constitution envisages that in a case of failure of constitutional machinery, the President (i.e., the Union Executive) shall 'assume to himself" the functions of the State Government and the powers vested in the Governor. However, in the case of Union Territory of Delhi, since the executive power remains vested in the President and there is no independent exclusive vestage of executive power in the Council of Ministers of NCTD - there was neither any occasion nor any requirement for the Constitution makers to provide for in the provisions of Article 239AB - any "assumption of functions" by the Union Executive since the executive power vests in the Union Executive itself. Since there is never any exclusive vestage in the Council of Ministers of NCT Delhi, there is no need to assume/take it back by the President. Further, Article 239AB provides that in the case of NCT of Delhi the President can suspend th....
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....ld be contrary to not only the constitutional scheme, but contrary to specific provisions of the GNCTD Act, 1991, particularly Sections 44 as well as Rule 23 of the Transaction of Business Rules. However, we are of the opinion that no such reference to the larger Bench is required and, therefore, we have not reproduced submissions of the learned senior counsel of Union of India on this aspect. 44) M/s. Kapil Sibal, P.C. Chidambaram, Shekhar Naphade and Ms. Indira Jaising argued the matter on behalf of NCTD, appearing in different appeals. Insofar as the aforesaid interpretation suggested by learned counsel appearing for the Union of India is concerned, a strong refutation on behalf of the NCTD is that the judgment, in no uncertain terms, holds that the executive power of NCTD is co-extensive with its legislative power. According to them, the Constitution Bench has specifically held that this executive power pertains to all the Entries in List II, (except Entries 1, 2 and 18, which are specifically excluded), as well as all the Entries in the Concurrent List, i.e. List III. Such a power is 'exclusive' which belongs to GNCTD to the exclusion of the Central government. Specific ref....
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....ajority judgment has made it clear that Delhi Assembly/Government has Legislative/Executive Competence over all subjects except three subjects and as a corollary, the executive power of the Union Government in Delhi is limited to three excluded subjects in List II. These paragraphs are: (a) In Para 199, it is observed that executive power of Delhi Government is co-terminus with executive power on "all but three subjects in the State List and all subjects in the Concurrent List". (b) In Para 212, it is held that "sub-clause (a) of clause (3) of Article 239AA establishes the power of Delhi Legislative Assembly to enact laws for the NCT of Delhi with respect to matters enumerated in the State List and/or Concurrent List except insofar as matters with respect to and which relate to entries 1, 2 and 18 of the State List." (c) Again, in Para 217, the Court held that on a conjoint reading of clause 3(a) and clause 4 of Article 239AA, it becomes clear that the Delhi Government has executive power which extends over "all but three subjects in the State List and all subjects in the Concurrent List". (d) To the similar effect are the observation in Para 219....
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....on are undoubtedly comprised in the "spirit of the Constitution". While interpreting the provisions of the Constitution, the safe and most sound approach is to read the words of the Constitution in light of the avowed purpose and spirit of the Constitution so that it does not result in an illogical outcome which would have never been the intention of the Constituent Assembly or the Parliament while exercising its constituent power. Therefore, a Constitutional Court, while adhering to the language employed in the provision, should not abandon the concept of the intention, spirit, the holistic approach and the constitutional legitimate expectation which combinedly project a magnificent facet of purposive interpretation. The Court should pose a question to itself whether a straight, literal and textual approach would annihilate the sense of the great living document which is required to be the laser beam to illumine. If the answer is in the affirmative, then the constitutional courts should protect the sense and spirit of the Constitution taking aid of purposive interpretation as that is the solemn duty of the constitutional courts as final arbiters of the Constitution..." ....
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....for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion" 53) The argument advanced is that after settling the legal position with respect to Article 239AA of the Constitution, the Constitution Bench has referred the matter back to this Bench for deciding individual cases. This Bench was, therefore, to decide these individual issues in 'conformity' with the opinion of the Constitution Bench and, therefore, it was not open to the Union of India to re-argue the case. 54) We have considered the aforesaid submissions with deep sense of sincerity, objectivity and also keeping in mind various specific issues that arise for determination in these appeals. 55) Indubitably, NCTD was, and still remains, a Union Territory. This was held by a nine Judge Bench judgment in the NDMC case, which legal position is reiterated by the Constitution Bench in the instant case as well. However, in spite of NCTD being a Union Territory, it has been given special constitution status under Article 239AA. Clause (1) of the said Article creates and recognises such a status. This status is to accord Legis....
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....l subjects contained in List II and List III. However, there is a conferment of such legislative power upon the Legislative Assembly of NCTD as well. This power is specifically conferred upon the Legislative Assembly under sub-clause (a) of Article 239AA(3). Sub-clause (b) thereof, in no uncertain terms, provides that conferment of powers upon Delhi Legislative Assembly under sub-clause (a) shall not derogate the powers of Parliament under the Constitution to make laws in with respect to any matter for a Union Territory or any part thereof. This sub-clause, therefore, retains the supremacy of Parliament to make laws. What follows is that Parliament has not only concurrent power in respect of List III, but in respect of List II as well. Insofar as Entries 1, 2 and 18 of List II are concerned, the Parliament retains its exclusive domain on those subject matters. To this extent, there is a departure from the principle of fedaralism inasmuch as Parliament has no power to make any laws in respect of the States for the matters enumerated in List II. Sub-clause (c) of clause (3) of Article 239AA takes care of the situation of repugnancy if it arises between the law made by the Parliament ....
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.... "84. The appellant relying on Article 73 of the Constitution had submitted that Article 73 lays down the principle that while there may exist under the Constitution concurrent legislative powers on two different federal units, there can never be any concurrent executive powers. It was further submitted that the above principle equally applies to matters listed in List II and List III of the Constitution of India for NCTD. Referring to Article 239-AA(3)(b), it is contended that the said provision confers power on Parliament to enact legislations in matters in both State List and Concurrent Lists Such power is also available under Article 246. However, it does not follow from the above that the said provision also confers executive powers in relation to matters in the State List and Concurrent List. It is further submitted that Parliament may by law confer executive powers in relation to matters in the Concurrent List on the Union Government for States, it may also do so in relation to NCTD. But, if such thing is not done, the Union Government will, as a general rule, have no executive powers in respect of matters under List II (except the excluded entries) and it is the GNCTD....
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.... States was not excluded with regard to Concurrent List also. Part C States having been substituted as now by the Union Territories by the Constitution (Seventh Amendment) Act. The word "State" in proviso to Article 73 cannot be read to include Union Territory. Reading the words "Union Territory" within the word "State" in proviso to Article 73(1) shall not be in accordance with Scheme of Part VIII (Union Territories) of the Constitution. Union Territories are administered by the President. Exercise of executive power of the Union through President is an accepted principle with regard to Union Territories. The above interpretation is also reinforced due to another reason. Under Article 239-AA(4) proviso, the Lieutenant Governor, in case of difference of opinion, can make a reference to the President for decision and has to act according to the decision given thereon. The President, thus, with regard to a particular executive action, which has been referred, has exclusive jurisdiction to take a decision, which both Council of Ministers as well as Lieutenant Governor has to follow. The provision does not indicate that power of the President is confined only to executive actions which....
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....ess with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers. As per Article 239-AA sub-clause (4) read with business rules, the manner and procedure of conduct of business including executive functions of GNCTD has to be administered. Although the Union ordinarily does not interfere with or meddle with the day-to-day functions of the GNCTD which is in tune with the constitutional scheme as delineated by Article 239-AA and to give meaning and purpose to the Cabinet form of Government brought in place in the National Capital of Territory. But as the overriding legislative power of Parliament is conceded in the constitutional scheme, overriding executive power has also to be conceded even though such power is not exercised by the Union in the day-to-day functioning of the GNCTD. We thus conclude that executive power of the Union is coextensive on all subjects referable to List I and List II on which Council of Ministers and NCTD has also executive powers." 59) Insofar as opinion of Chandrachud, J. is concerned, there is no categorical discussion on this aspect, though insofar as legislative power of the Legislative Assembly....
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....nisters by seeking a resolution through dialogue and discussion. This is to be done after following the procedure contained in the Transaction of Business Rules. Second facet relates to the substantive meaning of the expression 'any matter', which would not mean 'every matter' or 'every trifling matter' but only those rare and exceptional matters where the difference is so fundamental to the governance of the Union Territory that it deserves to be escalated to the President. 60) After suggesting the aforesaid three lines of interpretations, the judgment suggests that there is a kernel of substance in each of them, but pitfalls have to be avoided. It emphasises that the functioning of the institutions must establish a constitutional balance which facilitates cooperative governance. Read in this way, the proviso has to be operated and applied in a manner which facilitates and does not obstruct the governance of NCTD. This judgment, thereafter, again emphasises that though Delhi has a special status, it continues to be a Union Territory. In that context, the nine Judge Bench decision in NDMC as well as the scheme contained in Article 239 and 239AA as well as the principle of repugn....
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....s are entrusted or delegated to him by the President. Under Section 44(1)(a), Rules of Business are made on matters on which the Lieutenant Governor is required to act on the aid and advice of the Council of Ministers. Section 44(1)(a) covers business which is not a part of Section 41(1)(i). This is because matters which fall within Section 44(1)(i) are not governed by the principle of aid and advice. 141. There is much to be said for not laying down an exhaustive catalogue of situations to which the proviso applies. Governance involves complexities. In the very nature of things, it would not be possible for a court delivering judgment in the context of the problems of the day to anticipate situations which may arise in future. It would be unsafe to confine a constitutional provision to stated categories which may affect the resilience of the Constitution to deal with unforeseen situations. Some of the illustrations which may warrant the exercise of the power under the proviso may shed light on the purpose of the proviso and the object which it seeks to achieve. 142. There are two constitutional perspectives: first, the operation of the proviso should pre....
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....he provisions of the Constitution or a law enacted by Parliament. There may well be significant issues of policy which have a bearing on the position of the National Capital Territory as a national Capital. Financial concerns of the Union Government may be implicated in such a manner that it becomes necessary for the Lieutenant Governor to invoke the proviso where a difference of opinion remains unresolved. A situation of the nature indicated in Rule 23 of the Transaction of Business Rules may well justify recourse to the proviso. The touchstone for recourse to the proviso is that the difference of opinion is not a contrived difference. The matter on which a difference has arisen must be substantial and not trifling. In deciding whether to make a reference, the Lieutenant Governor must always bear in mind the latitude which a representative Government possesses to take decisions in areas falling within its executive authority. The Lieutenant Governor must bear in mind that it is not he, but the Council of Ministers which takes substantive decisions and even when he invokes the proviso, the Lieutenant Governor has to abide by the decision of the President. The Lieutenant Governor mu....
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....emise that the executive power of the Delhi Government extends to all Entries of List II (except Entries 1, 2 and 18) and Entries 64, 65 and 66 of that List insofar as they relate to said Entries 1, 2 and 18 as well as all the Entries in List III. This power of GNCTD is also to be exclusive, i.e. to the exclusion of the executive power of the Central Government. At the same time, we may also clarify that while dealing with the specific issues which arise in these appeals, this Court would keep in mind the provisions of GNCTD Act as well as the Transaction of Business Rules inasmuch as for deciding these issues this Court cannot be oblivious of the specific provisions contained in the Act and the Rules. 62) Of course, while construing those provisions and applying these and other provisions in the context of specific issues, the letter and spirit behind the Constitution Bench judgment on various aspects, to which all the three opinions concur, would be kept in mind. It is for this reason we have discussed other two opinions as well, in detail. The Appeals 63) To recapitulate, there are a total of nine appeals which have to be decided by this Court in the present batch of ap....
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....c Prosecutors, viz., whether it is the Lieutenant Governor or the GNCTD which has the power to appoint the Special Public Prosecutor under Section 24 of the Cr.PC.? Discussion and Conclusions on the Issues Raised 70) We now proceed to decide these issues. Issue No.1: Whether the exclusion of 'Services' relatable to Entry 41 of List II of the Seventh Schedule from the legislative and executive domain of the NCTD, vide Notification dated May 21, 2015, is unconstitutional and illegal? 71) Entry 41 of List II of the Seventh Schedule reads as under: "41. State public services; State Public Service Commission." 72) Mr. Chidambaram, learned senior counsel who argued the case on behalf of the GNCTD on this issue, submitted that the majority judgment of the Constitution Bench specifically holds that exclusion of legislative/executive power in List II for Assembly/ GNCTD is limited to only three subjects, i.e. Entry 1 (Public order), Entry 2 (Police) and Entry 18 (Land). Therefore, the issue of exclusion of any other additional Entry either in List II or in List III would not arise. As a consequence, not only legislative power of the Assembly, even the co-extens....
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....tor thereof appointed under article 239 shall be designated as the Lieutenant Governor; And whereas sub-clause (a) of clause (3) of article 239AA states that the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18; and whereas Entry 1 relates to 'Public Order', Entry 2 relates to 'Police' and Entry 18 relates to 'Land'. And whereas sub-clause (a) of clause (3) of article 239AA also qualifies the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories. Under this provision, a reference may be made to Entry 41 of the State List which deals with the State Public Services, State Public Service Commission which do not exist in the National Capital Territory of Delhi. Further, the Union Territories Cadre consisting of In....
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....n number F. 1/21/92-Home (P) Estt. 1750 dated 8th November, 1993, as amended vide notification dated 23rd July, 2014 bearing No. 14036/4/2014-Delhi-I (Pt. File), for paragraph 2 the following paragraph shall be substituted, namely: - "2. This notification shall only apply to officials and employees of the National Capital Territory of Delhi subject to the provisions contained in the article 239AA of the Constitution." after paragraph 2 the following paragraph shall be inserted, namely:- "3. The Anti-Corruption Branch Police Station shall not take any cognizance of offences against Officers, employees and functionaries of the Central Government". 3. This Notification supersedes earlier Notification number S.O. 853(E) [F. No. U-11030/2/98- UTL] dated 24th September, 1998 except as respects things done or omitted to be done before such supersession. [F. No. 14036/04/2014-Delhi-I (Part File)] RAKESH SINGH, Jt. Secy." 74) Pertinently, this Notification in respect of 'Services', mentions about Union Territories cadre consisting of Indian Administrative Service and Indian Police Service personnel. There is no dispute that this cadre is common to all the Union....
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.... the Constituent States." The Indian Administrative Service (Cadre) Rules, 1954 2. Definitions:- In these rules, unless the context otherwise requires - xx xx xx (c) 'State' means a State specified in the First Schedule to the constitution and includes a Union Territory. (d) 'State Government concerned', in relation to a Joint cadre, means the Joint Cadre Authority. xx xx xx 7. Postings - All appointments to cadre posts shall be made:- (a) in the case of a State cadre, by the State Govt.; and (b) in the case of a Joint Cadre, by the State Government concerned. (c)(i) The Central Government, in consultation with the State Government or State Governments concerned, may determine the tenure of all or any of the cadre posts specified for the State concerned in item 1 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulation, 1955. (c)(ii) A cadre officer, appointed to any post for which the tenure has been so determined, shall hold the minimum tenure as prescribed except in the event of promotion, retirement, deputation outside the State or training exceeding two....
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.... Every member of the Service allocated to an Administration shall, unless he is appointed to an ex-cadre post, or is otherwise not available for holding a duty post owing to the exigencies of the public service, be posted against a duty post under the Administration by the Administrator concerned. 13. Allocation of members of the Service - The Government shall, from time to time, allocate a member of the Service to any Administration for posting in terms of rule 12." 78) It is argued that under the DANICS Rules, as per Rule 2(a) 'Administration' means the GNCTD, as per Rule 2(b) 'Administrator' means the Administrator of NCTD and as per Rule 2(k) 'Government' means the Government of India. Thus, while it is the Government of India that makes an officer available to GNCTD under Rule 13, the posting of that DANICS officer within the NCTD is to be made by the Administrator on the aid and advice of the Council of Ministers. 79) Mr. C.A. Sundaram, learned senior counsel who argued on behalf of the Union of India on this particular issue, submitted that Entry 41 in List II cannot be applied to the NCTD as the said Entry is confined to 'State public services....
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....ferred on the Legislative Assembly. Therefore, the President was competent to issue Notification dated May 21, 2015 thereby entrusting the powers and functions in respect of 'Services' to the Lieutenant Governor. According to him, this was supported by Rule 46 of the Transaction of Business Rules which reads as under: "46. (1) With respect to persons serving in connection with the administration of the National Capital Territory, the Lieutenant Governor shall, exercise such powers and perform such functions as may be entrusted to him under the provisions of the rules and orders regulating the conditions of service of such persons or by any other order of the President in consultation with the Chief Minister, if it is so provided under any order issued by the President under article 239 of the Constitution. (2) Notwithstanding anything contained in sub-rule (1) the Lieutenant Governor shall consult the Union Public Service Commission on all matters on which the Commission is required to be consulted under clause (3) of article 320 of the Constitution; and in every such case he shall not make any order otherwise than in accordance with the advice of the Union Public....
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....rnor as a nominee of the President. The learned counsel also pointed out that Rule 46 of the Transaction of Business Rules, along with the delegation made by the President under Article 239AA of the Constitution from time to time, has always been governing the process of transfer/posting of officers 4 working with the GNCTD. 82) Fervent plea of Mr. Sundaram was that a just and fair mechanism could be similar to the one which prevailed in earlier years prior to 2015, viz. that the transfers and postings of Secretaries, HoDs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly. For other levels, including DANICS officers, the files can be routed through the Chief Minister to Lieutenant Governor. In case of difference of opinion between the Lieutenant Governor and the Chief Minister, the view of the Lieutenant Governor should prevail and the Ministry of Home Affairs can issue a suitable notification in this regard. However, for Grade IV, III, II and I DASS officials, there is an existing delegation of powers where for Grades IV and III, all transfers and postings are don....
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....of the expression "State" which had effect from the first day of November, 1956, and the Constitution expressly provided that it could "not be questioned in any court of law". The High Court therefore went wrong in taking a contrary view and in holding that "Union territories are not 'States' for purposes of Article 312(1) of the Constitution and the preamble to the Act of 1951". That was why the High Court erred in holding that the definition of "State" in the Cadre Rules was ultra vires the All India Services Act, 1951 and the Constitution, and that the Union territories cadre of the service was "not common to the Union and the States" within the meaning of Article 312(1) of the Constitution, and that the Central Government could not make the Indian Administrative Service (Cadre) Rules, 1954 in consultation with the State Governments as there were no such governments in the Union territories. (emphasis supplied)" The above decision has also been noted, with approval, in paragraph 125 in the opinion of Chandrachud J. in the Constitution Bench judgment. 84) From the respective arguments of the parties reproduced above, it becomes clear that following aspects ar....
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....cludes a Union Territory. Rule 7 deals with posting and, inter alia, stipulates that in the case of joint cadre, posting shall be by the State Government concerned. In the context of Article 312 of the Constitution, this Court has held in Prem Kumar Jain that Union Territories are States for the purpose of the said Article. 88) Similar is the position in respect of DANICS. Rule 11 of DANICS Rules, 2003 empowers Administrator of the administration concerned i.e. Union Territory, to make these postings. On the other hand, in the context of NCTD, the Administrator, namely, LG is supposed to function in this behalf on the aid and advice of the Council of Ministers. That is the dicta of Constitution Bench judgment. Therefore, it becomes equally doubtful as to whether it falls within the discretionary powers of the L.G. 89) The aforesaid discussion leads to a very peculiar situation. The appellant has endeavoured to assume the executive power in respect of 'services' by relying upon Entry 41 of List II, which may be doubtful. That situation may give discretionary powers to the L.G. On the other hand, it also cannot be said that once the manpower is allocated to Union Territory of D....
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....We may add that insofar as disciplinary authorities are concerned, the same are already prescribed as per the CCA (CCS) Rules and the Rules applicable for different services including IAS & DANICS. The appointing and disciplinary authority is the President of India, as per the powers delegated by the President from time to time. Vigilance matters would get covered by the applicable disciplinary rules in terms of officers competent to initiate and take vigilance action. 92) In the interest of good governance and smooth Governmental function, we expect that efforts will be made by both the Chief Minister as well as the LG for a harmonious working relation. Issue No.2: Whether the exclusion of the jurisdiction of the Anti-Corruption Branch (ACB) of the NCTD to investigate offences committed under the Prevention of Corruption Act, 1987 by the officials of the Central Government and limiting the jurisdiction of the ACB to the employees of the GNCTD alone is legal? 93) On this issue, validity of few notifications is in question. It may be mentioned that vide Notification dated August 01, 1986, the Administrator declared ACB of Delhi Administration as a Police Station under Secti....
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.... S.O. 1368(E) - Whereas Article 239 of the Constitution provides that every Union Territory shall be administered by the President acting, to such extent as he things fit, through an administrator to be appointed by him with such designation as he may specify; And whereas Article 239AA inserted by the Constitution (Sixty-ninth Amendment) Act, 1991 provides that the Union Territory of Delhi shall be called the National Capital Territory of Delhi and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor. And whereas sub-clause (a) of clause (3) of Article 239AA states that the Legislative Assembly shall have power to make laws for the whole or any pat of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List insofar as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List insofar as they relate to the said Entries 1, 2 and 18; and whereas Entry 1 relates to 'Public Order', Entry 2 relates to 'Police' and Entry 18 relates to 'Land'. And wh....
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....d' and 'services' as stated hereinabove, exercise the powers and discharge the functions of the Central Government to the extent delegated to him from time to time by the President. Provided that the Lieutenant Governor of the National Capital Territory of Delhi may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of 'services' wherever he deems it appropriate. 2. In the Notification number F.1/21/92-Home (P) Estt. 1750, dated 8th November, 1993, as amended vide Notification dated 23rd July, 2014 bearing No. 14036/4/2014-Delhi-I (Pt. File), for Paragraph 2 the following Paragraph shall be substituted, namely:- "2. This notification shall only apply to officials and employees of the National Capital Territory of Delhi subject to the provisions contained in the Article 239AA of the Constitution." after paragraph 2 the following paragraph shall be inserted, namely:- "3. The Anti-Corruption Branch Police Station shall not take any cognizance of offences against Officers, employees and functionaries of the Central Government." 3. This Notification supersedes earlier Notification number S.O. 853 (....
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.... Government. Reference is made to Entry 2 of List III of the Seventh Schedule, which reads as under: "2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution." 96) It is, therefore, submitted that the Legislative Assembly for Delhi has legislative competence in respect of Cr. P.C, which is directly relatable to Entry 2 of List III. Further the Delhi Government has exclusive executive power in respect of criminal procedure, in terms of Para 218 and 219 of the Constitution Bench Judgment. Section 3(58) of the GC Act defines the expression "State". The definition inter alia lays down that the Union Territory is a State. From this, it is sought to be buttressed that it logically follows that any Government which administers affairs of the Union Territory of Delhi is a State Government. 97) To support the aforesaid plea, certain judgments are relied upon. In Ukha Kolhe v. State of Maharashtra (1964) 1 SCR 926 : AIR 1963 SC 1531, a Constitution Bench of this Court has held as under: "18...It is true that power to legislate on matters relating to Criminal Procedure and evidence falls within th....
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....rtion of Article 239AA (February 01, 1992). The first notification was issued by the President on March 20, 1974 in exercise of powers under Article 239(1) of the Constitution. The notification directs the Administrators of all UTs other than Arunachal Pradesh and Mizoram to exercise, subject to control of the President and until further orders, the powers and functions under Cr.P.C., 1973 as mentioned in the annexed schedule. The notification has a condition that the Central Government may itself exercise all or any of those powers and functions if it deems necessary. This notification confers powers on the Administrator of UT Delhi to exercise powers under Section 2(s) Cr.P.C., 1973. In pursuance of the delegation of powers by the President of India vide notification dated March 20, 1974 and in exercise of powers under Section 2(s) of Cr.P.C., 1973 the Lieutenant Governor declared ACB of Delhi Administration at Tis Hazari, Delhi to be a police station for offences under Section 161 and 165A IPC, and PC Act, 1947 with jurisdiction over whole of UT, Delhi vide notification dated May 20, 1975. Thus, ACB was established as a police station by Administrator UT Delhi. Thereafter, the R....
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....under Section 2(s) Cr.P.C. 1973 read with notification dated March 20, 1974, that ACB Delhi Administration at Tis Hazari, Delhi would be police station in relation to offences under Section 161 to 165A IPC and the Prevention of Corruption Act, 1947 and also attempts, abetment and conspiracies in relation to said offences. It was to have jurisdiction over the whole of UT Delhi. After the enforcement of the Prevention of Corruption Act, 1988 which also omitted Section 161-165A of IPC, the LG of NCTD issued notification dated November 08, 1993 in exercise of power under Section 2(s) CRPC read with notification dated March 20, 1974 of GOI. This notification provided that ACB of NCT Delhi at Old Secretariat would be police station for offences under the PC Act 1988 and attempts, abetment and conspiracies in relation to or in connection with the said offences and any other offence committed in the course of the same transaction rising out of the same set of facts. Its jurisdiction was to be over the whole of NCT Delhi. This notification was issued after the insertion of Article 239AA in the Constitution. 100) On September 24, 1998, the President issued a notification under Article 239....
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....ion of India. The establishment of CBI and its power of investigation falls under Entry 8/ 80 list I of Schedule VII whereas the establishment of ACB would be under the Delhi Police Act, 1978. 102) He also submitted that Section 5 of PC Act, 1947 and Section of PC Act, 1988 envisage investigations of offences done by CBI/Delhi Police. Hence, Union or Administrator acting under DSPE Act and Delhi Police Act, 1978 can decide which of the two would investigate officers, employees and functionaries of the Central Government. In short five parliamentary Acts-Cr.P.C., 1973, PC Act, 1988, DSPE Act, Delhi Police Act, 1978 and CVC Act have to be read together. 103) In this hue, Mr. Dwivedi's submission was that it now stands established, even by the judgment of the Constitution Bench, that NCTD is still a Union Territory to which Article 239 is applicable, notwithstanding the insertion of Article 239AA. He further submitted that admittedly Entry 2 in List II is outside the legislative competence of the Legislative Assembly of Delhi and, therefore, the Delhi Government could not exercise executive authority in respect of this entry. Moreover, Entries 8 and 80 of List I are also outside....
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....be guided by hyper technicalities. Even in the Constitution Bench judgment it has been emphasised time and again, and in fact in all the three opinions of the Hon'ble Judges, that the text of Article 239AA is to be read contextually. Therefore, what has been specifically denied to GNCTD, it cannot venture to gain that power on such a plea. 108) Dr. Singhvi rightly submitted that it is a settled principle that legislative entries are to be interpreted in a broad and liberal manner consistent with imputing to them the widest amplitude and as including all ancillary and subsidiary matters. A narrow or pedantic reading of the entries has been repeatedly frowned upon. We are of the opinion that the scope of the term 'Police' as occurring in Entry 2 of List II cannot, therefore, be artificially restricted or limited to only constitution of the Police force, but would take within its fold the legislative (and, therefore, executive) power to exercise supervision and control over the functioning of the Police so constituted, including by way of issuance of executive directions delineating the powers, functions and jurisdiction of different wings/sections of the Police. In essence, the im....
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....hen Cr.P.C. is read with the Delhi Police Act, 1978 and other cognate enactments. 111) Here we have to keep mind the fact that Entry 1 of List II, subject matter whereof is 'public order', also stands excluded from the purview of GNCTD and is the exclusive domain of the Parliament/ Central Executive. The term 'public order' has been assigned widest amplitude and connotation (See - Stainislaus v. State of Madhya Pradesh and Others (1977) 1 SCC 677 and Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Others (2010) 5 SCC 246). It is also held that 'public order' includes cognizance of offences, search, seizure and arrest, followed by registration of reports of offences (FIRs), investigation, prosecution, trial and in the event of conviction, execution of sentences as well. All these aspects have to be construed conjointly. 112) In fact, there was a specific rational in excluding Entries 1, 2 and 18 of List II from the jurisdiction of the Government of NCTD. The Balakrishnan Committee report which recommended exclusion of these Entries (and which part of the Report stands accepted by providing so specifically in Article 239AA of the Constitution) was of the view tha....
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....after throughout. The impugned Notifications are only a modification to the aforesaid Notification dated November 08, 1993 to a limited extent whereby it is clarified that this earlier Notification shall be applicable to 'the officers and employees of that Government only (GNCTD)'. Thus, the only effect is that the ACB is not empowered to investigate into the offences of Central Government employees under the Prevention of Corruption Act. Admittedly, this investigation is carried out by the CBI. Therefore, it obviates the duality and conflict of jurisdiction as well. 115) We, thus, uphold the validity of Notifications dated July 23, 2014 and May 21, 2015. Issue No.3: Whether the GNCTD is an 'appropriate Government' under the COI Act? 116) The relevant entries in the Seventh Schedule are Entry 94 of List I and Entry 45 of List III. These are as under: "Entry 94 List I Inquiries, surveys and statistics for the purpose of any of the matters in this List. Entry 45 List III Inquiries and statistics for the purposes of any of the matters specified in List II or List III." 117) The COI Act is the Central enactment. For understanding the issue involved, we may refer....
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....d as the same was passed without seeking views/concurrence of the Lieutenant Governor. It was argued that as far as the concurrence of the Lieutenant Governor is concerned, it has already been held by the Constitution Bench that no concurrence is required. ^[However, we may add here that even if no concurrence is required, the matter has to be sent to the LG for his views, in terms of proviso to Article 239AA(4), which, of course, has to be within the parameters specified in the opinion authored by Justice Chandrachud and contained in paras 140-142 already extracted above.] 121) Attention was also drawn to the Statement of Objects and Reasons appended to the original Bill No. 39 of 1952 introduced in Parliament to bring about the enactment the Commissions of Inquiry Act, 1952. It reads as follows: "Commissions and Committees of Inquiry are at present appointed by Government under executive order; there is no central law to regulate the power of such bodies. Some of them have felt handicapped because of the absence of any statutory power to enforce the attendance of witnesses and the production of documents. In order to remove this difficulty, ad hoc legislation has been....
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....Rai Sahib Ram Jawaya Kapur's case which reads as under: "12. It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution but, as we have already stated, it does not follow from this t....
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...., 1991 does not in any way affect the validity of delegation contained in the presidential notification issued under Article 239." 126) He pointed out that this judgment was also placed before the Constitution Bench while considering the proposition that the executive power of the State Government is limited under the Constitutional scheme, even after the enactment of the GNCTD Act. Chandrachud, J. opined that: "450. The issue as to whether the Lieutenant Governor of the NCT is competent to accord sanction for prosecution under the Prevention of Terrorism Act and the Code of Criminal Procedure was considered by a two-Judge Bench of this Court in State (NCT of Delhi) v. Navjot Sandhu [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] (Navjot Sandhu). In that case, sanctions under both the statutes were accorded "by order and in the name of the Lieutenant Governor". The sanction under Section 50 of POTA was urged to be a nullity on the ground that in relation to the Union Territory only the Central Government was competent to accord it. Section 2(1)(h) of POTA defined the expression "State" in relation to a Union Territory, to mean the Admini....
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....e President. Another submission of Mr. Gautam Khazanchi was that the notification dated August 11, 2015 was the result of malafide power of the GNCTD. According to him, the matter had been investigated by the ACB, dealt with by the LG and was also the subject matter of an Inquiry headed by a retired Chief Justice of a High Court. Initiation of a second round by constitution of Commission of Inquiry to look into the very same allegations investigated by the ACB was not only an abuse of the process but an excess of authority exercised by it to do indirectly what it could not do directly. 129) From the arguments noted above, it becomes apparent that the outcome of this issue hinges upon the meaning that is to be assigned to the expression 'State Government' occurring in Section 2(a) of the COI Act which defines 'Appropriate Government'. To put it otherwise, whether the term State Government would include 'Union Territory'? For this purpose, one will have to fall back on the GC Act. Section 3(8) of the GC Act defines Central Government and relevant portion thereof is as under: "(8) "Central Government" shall- (a) ... (b) in relation to anything done or to ....
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.... Central Government to the industrial tribunal. This power of Central Government to make the reference was challenged by the management taking a specific plea that the Central Government was not the Appropriate Government in relation to the Union Territory. This contention was repelled by the industrial tribunal but upheld by the High Court. High Court had held that the administrator of the Union Territory of Goa, Daman & Diu shall be the administrator who could make the reference. This Court set aside the order of the High Court and upheld that of the industrial tribunal holding that Central Government was the Appropriate Government in respect of Union Territory. After referring to the definition of 'Appropriate Government' in Section 2(a) of the Industrial Disputes Act, the Court relied upon the provisions of GC Act contained in Section 3(8) and Section 3(60) thereof. The Court observed that there is a distinction between "States" and "Union Territories" and also between "State Government" and "Administration of a Union Territory". It held that the "Administration of a Union Territory" would not be comprehended in the expression "State Government". It was held that the "State Gov....
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....55 provides that "all contracts in connection with the administration of a Union Territory are contracts made in the exercise of the executive power of the Union and all suits and proceedings in connection with the administration of a Union Territory shall be instituted by or against the Government of India". In exercise of the power conferred by Article 240, the President has inter alia enacted the Goa, Daman and Diu (Laws) Regulation, 1962. By clause (3) of the regulation, the Acts enumerated in the Schedule appended to the Act were extended to the Goa, Daman and Diu subject to the notifications, if any, specified in the Schedule. The Schedule includes Industrial Disputes Act, 1947 as a whole without any modification. xx xx xx 14. Would it be constitutionally correct to describe Administration of a Union Territory as State Government? Article 1 provides that "India, that is Bharat, shall be a Union of States". Sub-article (2) provides that "the States and the territories thereof shall be as specified in the First Schedule". Sub-article (3) introduced a dichotomy between the State as understood in the Constitution and the Union Territory when it provides that "th....
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....ry, the Central Government, the difference conceptually speaking between the expression "State Government" and the "Administration of a Union Territory" clearly emerges. Therefore, there is no room for doubt that the expression "Administration of a Union Territory", Administrator howsoever having been described, would not be comprehended in the expression "State Government" as used in any enactment. These definitions have been modified to bring them to their present format by Adaptation of Laws (No. 1) Order, 1956. Section 3 of the General Clauses Act, 1897 provides that in all Central Acts and Regulations made after the commencement of the Act unless there is anythingrepugnant in the subject or context, the words defined therein will have the meaning assigned therein. Indisputably the Industrial Disputes Act, 1947 is a Central Act enacted after the commencement of the General Clauses Act and the relevant definitions having been recast to meet the constitutional and statutory requirements, the expressions "Central Government", "State Government" and "Union Territory" must receive the meaning assigned to each in the General Clauses Act unless there is anything repugnant in the subje....
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.... Act, 1962, only the nomenclature of the Part C States has undergone a change, now being described as Union Territory, but the position of the Union Territory is the same as it was as Part C States and therefore, the view taken in the aforementioned decisions that the administration of Part C States could appropriately be described as State Government would mutatis mutandis apply to the administration of Union Territories. In other words, it was said that they can be appropriately described as State Governments for various purposes. Both the decisions were rendered prior to the amendment of Part VIII of the Constitution in 1956 and the insertion of the Articles 239-A and 239-B in 1962 and more specifically after the enactment of the 1963 Act. The concept of Union Territory with or without a Legislative Assembly and with or without a Council of Ministers with specified legislative and executive powers have been set out in the 1963 Act. Coupled with this, modifications were made in the definitions of aforementioned three expressions. Therefore, the two decisions are of no assistance in resolution of the present controversy." 134) We may also usefully refer to the opinion of Chandr....
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.... When this inclusionary part is put in juxtaposition with exclusionary part in the definition of the expression "State Government" which provides that as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, it shall mean, in a State, the Governor, and in a Union Territory, the Central Government, the difference conceptually speaking between the expression "State Government" and the "Administration of a Union Territory" clearly emerges. Therefore, there is no room for doubt that the expression "Administration of a Union Territory", Administrator howsoever having been described, would not be comprehended in the expression "State Government" as used in any enactment." The view of the High Court that the Administrator is the State Government insofar as the Union Territory is concerned under Section 3(60) was held to be in error. The decisions in Satya Dev Bushahri [Satya Dev Bushahri v. Padam Dev, AIR 1954 SC 587 : (1955) 1 SCR 549] and in State of Vindhya Pradesh v. Moula Bux [State of Vindhya Pradesh v. Moula Bux, (1962) 2 SCR 794 : AIR 1962 SC 145] were distinguished since they were rendered prior to the amendment of Part VII....
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....te Commission shall be guided by such directions in matters of policy involving public interest as the State Government may give to it in writing. (2) If any question arises as to whether any such direction relates to a matter of policy involving public interest, the decision of the State Government thereon shall be final." 138) He pointed out that similar powers are conferred upon the Central Government under Section 107 of the Electricity Act, namely, to give directions to the Central Electricity Regulatory Commission (CERC). According to him, Delhi Electricity Reforms Act, 2000 (DERC Act), with which we are concerned, contains Section 12 which is exactly on the same terms as Section 108 of the Electricity Act. This provision reads as under: "12. Powers of the Government. (1) In the discharge of its functions, the Commission shall be guided by such directions in matters of policy involving public interest as the Government may issue from time to time. (2) If any question arises as to whether any such direction relates to a matter of policy involving public interest, the decision of the Government thereon shall be final. (3) The Gove....
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....tionary power of the LG and, therefore, he is supposed to act on the aid and advice of Council of Ministers. 142) Reply of Mr. Maninder Singh to the aforesaid arguments was that the Electricity Act, 2003 is a Parliamentary enactment which was passed after the insertion of Article 239AA. Under Section 108 of the Electricity Act, 2003, it is the jurisdiction of the 'State Government' to issue any direction to DERC and such State Government, in relation to Union Territory like Delhi, would mean Central Government as per Section 3(60) of the GC Act. He also referred to Section 83(1)(b) of the Electricity Act, 2003 which makes it clear that for any Union Territory, it would be Central Government which is the Appropriate Government. 143) While answering question No. 3 in the context of COI Act, we have 12 (2016) 8 SCC 1 held that the expression 'State Government' occurring in Section 2(a) of the said Act which defines 'Appropriate Government' would not include GNCTD. That conclusion is arrived at while interpreting the provisions of Section 2(a) of the COI Act. However, here we are concerned with the Electricity Act, 2003 which also defines 'Appropriate Government'. Section 2(5) th....
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.... defined in Section 2(d) of DER Act as under: "2(d) "Government" means the Lieutenant Governor referred to in article 239AA of the Constitution; 145) Reading the aforesaid definition in the context of the Constitution Bench judgment would clearly mean that LG here has to act on the aid and advice of Council of Ministers, as such functions do not come within his discretionary powers. 146) What follows from the aforesaid is that insofar as DER Act is concerned, it is an enactment enacted by Legislative Assembly of NCTD. It operates within the NCTD. Government here means GNCTD i.e. LG who is supposed to act on the aid and advice of the Council of Ministers. Under this Act, Delhi Government has power to issue directions to the DERC in matters of policies involving public interest. When such powers are conferred specifically to Delhi Government under DER Act, it cannot be said that insofar as Section 108 of the Electricity Act, 2003 is concerned, the expression 'State Government' therein would mean the Central Government. If such an interpretation is given, there would clearly be a conflict of jurisdiction in the NCTD insofar as working of Electricity Act/DER Act are conc....
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.... 3.50 Crore 8. South 1.50 Crore 3.50 Crore 9. South East 1.50 Crore 3.50 Crore 10. New Delhi 1.50 Crore 3.50 Crore 11. Central 1.25 Crore 3.00 Crore These revised rates shall come into force with immediate effect. By order and in the name of the Lt.Governor of the National Capital Territory of Delhi, Sd/- (Sanjay Kumar) IAS Spl. Inspector General (Registration) " 148) Validity of this notification was challenged on two counts, namely: (a) As the notification is issued in the name of LG, prior concurrence of LG was a pre-requisite for issuance of such a notification. (b) Subject matter of the notification i.e. fixation of circle rates would fall under Entry 18 of List II over which the Parliament has the exclusive power inasmuch as it stands specifically excluded from the purview of GNCTD. 149) Argument of the appellant/GNCTD is that fixation of circle rate is not relatable to Entry 18 of List II i.e. 'land'. It is the submission that stamp duty is imposed on an instrument with regard to the title of the land and not the land itself. Therefore, a stamp duty would be levied on an instrument....
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.... of Undervaluation of Instruments] Rules, 1968; Maharashtra Stamp [Determination of true market value of property] Rules, 1995. 153) It was also pointed out that it was the Indian Stamp (Delhi Amendment) Act, 2001 which was passed by the Legislative Assembly of Delhi on 28th March, 2001 and received Presidential- assent on 18 th July, 2001 and the Indian Stamp (Delhi Amendment) Act, 2007 which was passed by the Legislative Assembly of Delhi on 18th September, 2007 and received the Presidential assent on 5th November, 2007 which in fact first dealt with the stamp duty payable on conveyance deeds in Delhi. Given that neither of these Acts have been challenged and in fact the Union has given its assent to these Acts, it is submitted that there can be no question of the Union now questioning the power of the GNCTD to collect such stamp duty and fix circle rates in respect of such collections. 154) The appellant also stated that Section 27(3) of the Indian Stamp Act, as amended in Delhi, that too with the express consent of the Union/President gives power to the Delhi Government to notify minimum rates for land for the purpose of calculation of stamp duty i.e. circle rate. Section....
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....." 157) Insofar as Entry 91 of List I is concerned, subject matter thereof is within the exclusive domain of the Centre/Parliament. It deals with 'rates of stamp duty in respect of wills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts'. It follows that insofar as instruments mentioned in Entry 91 of List I are concerned, rates of stamp duty of such documents are within the exclusive domain of the Union. In respect of other instruments, it is the State which has the necessary jurisdiction to fix the rates of stamp duty. 158) It would be pertinent to note that the High Court in the impugned judgment has arrived at a conclusion that notification dated August 4, 2015 revising the rates of agricultural land (circle rates) is traceable to Entry 63 of List II and not to Entry 18 of List II. We are in agreement with this conclusion. Said notification is issued under the provisions of Indian Stamp Act and Delhi Stamp (Prevention of Under-Valuation of Instruments) Rules, 2007. Circle rates are fixed for the purpose of payment of stamp duty. Therefore, they do not pertain to '....
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....pecified (i) to (viii) therein are not exhaustive. Any interpretation contra would render the Transaction of Business Rules ultra vires Clause (4) of Article 239AA of the Constitution. xx xx xx 116. For the aforesaid reasons, we are of the considered view that it is mandatory under the Constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCTD and an order thereon can be issued only where the Lt. Governor does not take a different view. 117. Hence, the contention on behalf of the Government of NCT of Delhi that the Lt. Governor is bound to act only on the aid and advice of the Council of Ministers is untenable and cannot be accepted. 161) The Constitution Bench judgment of this Court clarifies that in all those matters which do not fall within the discretionary jurisdiction of the LG, the LG is bound to act on the aid and advice of Council of Ministers. Further, majority opinion also holds that executive power of the GNCTD extends to all the subject matters contained in List II (except Entr....
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.... over all those subjects for which the Delhi Legislative Assembly has legislative power. 218. Article 239-AA(3)(a) reserves Parliament's legislative power on all matters in the State List and Concurrent List, but clause (4) nowhere reserves the executive powers of the Union with respect to such matters. On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact whereas the policy of the legislation has to be given effect to by the executive for which the Government of Delhi has to have coextensive executive powers. Such a view is in consonance with the observation in Ram Jawaya Kapur [Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549] which has been discussed elaborately in the earlier part of the judgment. xx xx xx 232. From the foregoing discussion, it is clear that the words "any matter" occurring in the proviso to Article 239-AA(4) do not necessarily need to be construed to mean "every matter". As highlighted in the authorities referred to hereinabove, the word "any" occur....
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.... provision in the spirit of citizenry participation in the governance of a democratic polity that is republican in character. We may hasten to add that when we say so, it should not be construed that there is allowance of enormous entry of judicial creativity, for the construction one intends to place has its plinth and platform on the Preamble and precedents pertaining to constitutional interpretation and purposive interpretation keeping in view the conception of sense and spirit of the Constitution. It is, in a way, exposition of judicial sensibility to the functionalism of the Constitution. And we call it constitutional pragmatism. 235. The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionised. They should feel that they are serving the constitutional norms, values and concepts. 236. Interpretation ....
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.... of Delhi Government takes a decision, the LG is also empowered to form its opinion 'on any matter' which may be different from the decision taken by his Ministers. Any matter does not mean each and 'every matter' or 'every trifling matter' but only those rare and exceptional matters where the difference is so fundamental to the governance of the Union Territory that it deserved to be escalated to the President. Therefore, the LG is not expected to differ routinely with the decision of Council of Minister. Difference should be on cogent and strong reasons. However, this limitation pertains to LG's exercise of power. At the same time, the proviso recognises that there may be contingencies where LG and his Ministers may differ. In such circumstances, LG is supposed to refer the matter to the President for decision and act according to the decision given thereon by the President. It means that final say, in case of different between LG and Council of Ministers, is that of the President. Such a scheme of things clearly contemplates that the Council of Ministers is supposed to convey its decisions to the LG to enable the LG to form his view thereupon. The decision cannot be implemented ....
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....owers of the State Government under the Cr.P.C., including appointment of public prosecutors, have been exercised by the elected government of NCT of Delhi. Referring to the impugned judgment, on this issue, it is pointed out that the High Court has held that the definition of Section 3(60) of the General Clauses Act, 1897 will apply to interpret the term "State Government" and it would thus be the Central Government, which would be the State Government. It is argued that this approach is wrong as the issue of appointment of public prosecutor relates to Criminal Procedure, i.e. Entry 2 of List II over which the Delhi Assembly and Executive exercise power, the Lt. Governor must act on the aid and advice of the Council of Ministers of the NCT of Delhi. It is contended that this convoluted method of reasoning was not necessary and the entire issue could be resolved if the Government of NCT of Delhi was held to be a State Government of NCT of Delhi by application of definition of State in Section 3(58) of General Clauses Act, 1897 to interpret State Government in the Cr.P.C., instead of definition of Section 3(60) of the GC Act which is obviously repugnant to the subject and context of....
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.... by the Parliament dealing exhaustively and comprehensively with criminal procedure the executive power of GNCTD as well as the legislative power would stand eroded and become subservient to the central executive. Therefore, GNCTD can exercise executive power only upon an express conferment of power by Cr.P.C. There is no such conferment. It is the Central Government alone which would have independent power to appoint Special Public Prosecutor. It is also argued that assuming without admitting that under Section 24 both Central Government are empowered to appoint Public Prosecutor/Special Public Prosecutor under Section 24(1) and 24(8), the Central Government cannot be prevented or restrained from making appointment, and wherever the Central Government has already made an appointment of a Public Prosecutor with respect to a case or a class of clases, the UT Government would not be competent to make a parallel appointment. 169) We find that in answering this question, the High Court has entered into the following discussion: "300. As could be seen, Section 24(8) of Cr.P.C. empowers the State Government for appointing a Special Public Prosecutor for the purposes of any ca....
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....of Delhi is concerned, the 'State Government', thus, means the Lieutenant Governor for the purposes of Section 24(8) of Cr.P.C. 171) Though, we have accepted the interpretation, as given by the High Court in respect of the provisions of the GC Act mentioned above while discussing the expression 'State Government' in the context of COI Act, this position is clarified while dealing with the same expression occuring in Section 2(5) of the Electricity Act, 2003. We have made it clear that it would depend upon language used in defining State Government in a particular enactment. We have also pointed out the difference in the definitions of Appropriate Government, under the COI Act and Electricity Act. This becomes important in the light of decision contained in the Constitution Bench judgment which clearly holds that under various circumstances, the expression State Government would be relatable to GNCTD, notwithstanding the fact that it continues to be the Union Territory. The Constitution Bench judgment has also not accepted the opinion of the High Court insofar as it treats State Government as the Lieutenant Governor. 172) In any case, it may not be necessary to dwell much upon....
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....2357 of 2017). 65) The third issue is raised in Civil Appeal Nos. 2358, 2359 and 2360 of 2017. In all these three appeals, the common issue is whether the GNCTD is an "Appropriate Government" under the Commission of Enquiry Act, 1952? 66) The fourth issue, which is raised in Civil Appeal No. 2363 of 2017, is: Whether under Section 108 of the Electricity Act, 2003 and under Section 12 of the Delhi Electricity Reforms Act, 2000, the power to issue directions with the State Commission is with the Government of NCT of Delhi? Similar issue is the subject matter of Civil Appeal No. 2361 of 2017, viz. whether the orders of the GNCTD nominating Directors to Distribution Companies in Delhi under the Delhi Electricity Reforms Act, 2000 read with Delhi Electricity Reforms (Transfer Scheme) Rules, 2001, without obtaining the concurrence of the Lieutenant Governor are valid? 67) The fifth issue is common to Civil Appeal No. 2362 of 2017 filed by the GNCTD and Civil Appeal No. 2364 of 2017 filed by Union of India, wherein the issue is whether the Revenue Department of the GNCTD has the power to revise the minimum rates of Agricultural Land (Circle Rates) under the p....
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....or in the Concurrent List in so far as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18; and whereas Entry 1 relates to 'Public Order', Entry 2 relates to 'Police' and Entry 18 relates to 'Land'. And whereas sub-clause (a) of clause (3) of article 239AA also qualifies the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories. Under this provision, a reference may be made to Entry 41 of the State List which deals with the State Public Services, State Public Service Commission which do not exist in the National Capital Territory of Delhi. Further, the Union Territories Cadre consisting of Indian Administrative Service and Indian Police Service personnel is common to Union Territories of Delhi, Chandigarh, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli, Puducherry and States of Arunachal Pradesh, Goa and Mizoram which is administered by the Central Government through the Ministry of Home Affairs; and similarly ....
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.... to the provisions contained in the article 239AA of the Constitution." after paragraph 2 the following paragraph shall be inserted, namely:- "3. The Anti-Corruption Branch Police Station shall not take any cognizance of offences against Officers, employees and functionaries of the Central Government". 3. This Notification supersedes earlier Notification number S.O. 853(E) [F. No. U-11030/2/98- UTL] dated 24th September, 1998 except as respects things done or omitted to be done before such supersession. [F. No. 14036/04/2014-Delhi-I (Part File)] RAKESH SINGH, Jt. Secy." 5. The Government of India, Ministry of Home Affairs issued above notification on the premise that Entry 41 of List II which deals with "State public services; State Public Service Commission" is not available to the Legislative Assembly of the National Capital Territory of Delhi which has been expressly stated so in the notification. The Government of NCT of Delhi (hereinafter referred to as "GNCTD") aggrieved by the notification has filed Writ Petition (C)No.5888 of 2015 in Delhi High Court. The Delhi High Court vide its judgment dated 04.08.2016 has decided Writ Petition (C)No.5888 of 2015 al....
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....e the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion." 8. The expression "shall on receipt of the opinion dispose of the appeal in conformity with such opinion" occurring in proviso to Article 145 clause (3) obliges this Bench to dispose of the appeal in conformity with such opinion. We, thus, need to find as to what is the opinion of the Constitution Bench in accordance with which the appeal is to be disposed of. On first question as noted above, what is opinion of the Constitution Bench has to be ascertained to apply the same in deciding the appeal. 9. Shri Rakesh Dwivedi, learned senior counsel and Shri Maninder....
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....udgment (in my opinion) following was stated: "486. These appeals, thus, have been placed before this Constitution Bench. At the outset, it was agreed between the learned counsel for the parties that this Constitution Bench may only answer the constitutional questions and the individual appeals thereafter will be decided by appropriate regular Benches." 13.The submissions which are being pressed before us by Shri Rakesh Dwivedi as well as Shri Maninder Singh were also pressed before the Constitution Bench, the specific submission was that the power of Legislative Assembly of Delhi on subject matter provided in List II and III of Seventh Schedule is limited by very same Article when it implies "in so far as any such matter is applicable to Union Territories". It is useful to notice that in paragraph 39 of the judgment of Justice Dipak Misra, C.J. (as he then was) following has been noticed: "39. The respondents also contend that although Article 239-AA confers on the Legislative Assembly of Delhi the power to legislate with respect to subject-matters provided in List II and List III of the Seventh Schedule, yet the said power is limited by the very same Article ....
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....cle 239-AA that Parliament has the power to make laws for NCT of Delhi on any of the matters enumerated in the State List and the Concurrent List and at the same time, the Legislative Assembly of Delhi also has the legislative power with respect to matters enumerated in the State List and the Concurrent List except matters with respect to entries which have been explicitly excluded from Article 239-AA(3)(a)." 16.In the above paragraphs Constitution Bench held that the power of the Legislative Assembly to make laws of NCT of Delhi is with respect to matters enumerated in State List and the Concurrent List except in so far as matters with respect to and which relate to entries 1,2 and 18 of the State List. What is noticed in paragraph No. 217 is what is stated in general terms in Article 239AA(3)(a) of the Constitution. The Constitution Bench has not bestowed its consideration on the purpose and intent of expression "with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territory of Delhi". The reason is not far to seek. Individual issues which had arisen in different appeals were not touched b....
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....wing effect: "K(v) "Insofar as any such matter is applicable to Union Territories" 20.In pages 736 and 737 of the judgment of Dr.Justice D.Y. Chandrachud, the said submission has been considered in paragraph Nos. 461, 462 and 463 and following has been laid down: "461. Article 239-AA(3)(a) permits the Legislative Assembly of the NCT to legislate on matters in the State List, except for Entries 1, 2 and 18 (and Entries 64, 65 and 66 insofar as they relate to the earlier entries) and on the Concurrent List, "insofar as any such matter is applicable to Union Territories". In forming an understanding of these words of Article 239-AA(3)(a), it has to be noticed that since the decision in Kanniyan right through to the nine-Judge Bench decision in NDMC, it has been held that the expression "State" in Article 246 does not include a Union Territory. The expression "insofar as any such matter is applicable to Union Territories" cannot be construed to mean that the Legislative Assembly of NCT would have no power to legislate on any subject in the State or Concurrent Lists, merely by the use of the expression "State" in that particular entry. This is not a correct reading ....
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.... considering the expression "in so far as any such matter is applicable to Union Territories" as occurring in Article 239AA(3) has held that the ability of the Legislative Assembly is circumscribed by the above expression. In Paragraph No. 316 of the Constitution Bench judgment, he has observed following:- "316. Clause (3) of Article 239-AA defines the legislative powers of the Legislative Assembly for the NCT. Sub-clause (a) empowers the Legislative Assembly for the NCT to enact law with respect to any of the matters contained in the State or Concurrent Lists of the Seventh Schedule to the Constitution. The ability of the Legislative Assembly is circumscribed "insofar as any such matter is applicable to Union Territories". The Legislative Assembly can hence enact legislation in regard to the entries in the State and Concurrent Lists to the extent to which they apply to a Union Territory. Of equal significance is the exception which has been carved out: Entries 1, 2 and 18 of the State List (and Entries 64, 65 and 66 insofar as they relate to Entries 1, 2 and 18) lie outside the legislative powers of the Legislative Assembly of NCT....................................." ....
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.... matter is applicable to Union Territory" is inconsequential. The reasons are twofold. On the commencement of the Constitution, there was no concept of Union Territories and there were only Part A, B, C and D States. After Seventh Constitutional Amendment, where First Schedule as well as Article 2 of the Constitution were amended which included mention of Union Territory both in Article 1 as well as in First Schedule. Thus, the above phrase was used to facilitate the automatic conferment of powers to make laws for Delhi on all matters including those relatable to the State List and Concurrent List except where an entry indicates that its applicability to the Union Territory is excluded by implication or any express constitutional provision." 24.In the above paragraphs the opinion is expressed that all matters including those relatable to the State List and Concurrent List are available to Legislative Assembly of Delhi except where an entry indicates that its applicability to the Union Territory is excluded by implication or by any express constitutional provision. The conclusion is, thus, that all entries of List II and List III are available to Legislative Assembly for exercisi....
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....te from the powers conferred on Parliament by the Constitution to make laws with respect to any matter for the Union territory or any part thereof." 28. Thus, the expression "insofar as any such matter is applicable in relation to Union Territories" is a known concept which was occurring in Section 18 of the Government of Union Territories Act, 1963 also. 29. For understanding the reasons and objects for circumscribing the Legislative powers of the Delhi Legislative Assembly by qualifying with the expression "insofar as any such matter is applicable in relation to Union Territories", we need to look into the Statement of Objects and Reasons of the Constitution 69th (Amendment) Act and other relevant materials throwing light on the object and purpose of 69th Constitutional amendment. 30. It is to be noted that for Reorganisation of the administrative set up of Union Territory of Delhi, the Government of India has appointed a Committee, namely, Balakrishnan Committee, which had submitted its report on 14.12.1989 to the Home Ministry. The Report of the Balakrishnan Committee was the basis for enacting 69th Constitution Amendment. In the Statement of Objects and Reasons of the....
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....ved:- "206. It is perceptible that the constitutional amendment conceives of conferring special status on Delhi. This has to be kept in view while interpreting Article 239-AA. Both the Statement of Objects and Reasons and the Balakrishnan Committee Report, the relevant extracts of which we have already reproduced in the earlier part of this judgment, serve as an enacting history and corpus of public knowledge relative to the introduction of Articles 239-AA and 239-AB and would be handy external aids for construing Article 239-AA and unearthing the real intention of Parliament while exercising its constituent power." 32.Balakrishnan's Committee Report in Para No. 6.7.4 has noted the limitation on the Legislative power of the Delhi Legislative Assembly because of the difference between the Constitutional Status of Union Territory and that of the State. Para No. 6.7.4 is to the following effect:- "6.7.4 As regards the Legislative Assembly to be created for Delhi. It should have full legislative power in relation to matters assigned to it. Subject to the specific exclusion of certain subjects set out in paragraphs 6.7.8 and 6.7.12 below, such powers should cover ma....
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.... the Union under article 239 and as such comes under "affairs of the Union". Consequently, the public services for the administration of any Union territory should form part of the public services in connection with the affairs of the Union. 8.1.3 It is not, therefore, constitutionally possible to bring the subject matter of the services in the Union territory within the scope of the Legislative Assembly or the Council of Ministers of the proposed Delhi Administration. On the same reasoning it is not possible to provide for a separate Public Service Commission for a Union territory like Delhi because State Public Service Commission in Entry 41 aforesaid means only the body set up for the States." 35.Balakrishnan Committee Report further opined that services in connection with the administration of the Union Territory of Delhi will be part of the services of the Union even after the setting up of a Legislative Assembly with a Council of Ministers. Following was stated in Paragraph No. 9.3.4 on the heading "SERVICES":- "SERVICES 9.3.4 By virtue of the provisions in the Constitution, services in connection with the administration of the Union territory of Delhi will be ....
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.....e. subsequent to Constitution Bench judgment in Govt. of NCT of Delhi vs. Union of India (supra). The Constitution Bench of this Court speaking through Justice Ranjan Gogoi (as he then was) has noticed details of all Central Civil Services, Union Territories Services in reference to NCT of Delhi, although with reference to question of applicability of reservation in services. Services in reference to NCT of Delhi has been noticed in paragraph Nos. 64 to 66 under the heading "National Capital Territory of Delhi", which is to the following effect:- "National Capital Territory of Delhi 64. In case of National Capital Territory of Delhi, especially, to make the picture even clearer, a reference may be made to "Delhi Administration Subordinate Service Rules, 1967". Rule 3 of the aforesaid Rules is to the following effect: "3. Constitution of service and its classification.-(1) On and from the date of commencement of these Rules, there shall be constituted one Central Civil Service, known as the Subordinate Service of the Delhi Administration. (2) The Service shall have four Grades, namely- Grade I Grade II Grade III Grade IV (3) The posts in Grade....
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.... and premises in the National Capital Territory of Delhi and the matter connected therewith. 39.We may first notice that the word "services" used in the Act has been used in a manner of providing services for fire prevention and fire safety measures. The word "services" has not been used in a sense of constitution of a service. It is to be noted that fire service is a municipal function performed by local authority. Delhi Municipal Council Act, 1957 contains various provisions dealing with prevention of fire etc. Further fire services is a municipal function falling within the domain of municipalities, which has been recognised in the Constitution of India. Article 243(W) of the Constitution deals with functions of the municipalities in relation to matters listed in the 12th Schedule. Entry 7 of the 12th Schedule provides for "Fire Services" as one of the functions of the municipalities. The nature of the enactment and the provisions clearly indicate that Delhi Fire Services Act falls under Entry 5 of List II and not under Entry 41 of List II. 40.The distribution of Legislative powers of State and the Parliament is provided under Articles 245 and 246 of the Constitution. Arti....