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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2357 OF 2017

GOVT. OF NCT OF DELHI .....APPELLANT(S)

VERSUS

UNION OF INDIA .....RESPONDENT(S)

WITH

CONT. PETITION (CIVIL) NO. 175 OF 2016 IN

WRIT PETITION (CRIMINAL) NO. 539 OF 1986

CIVIL APPEAL NO. 2360 OF 2017

CIVIL APPEAL NO. 2359 OF 2017

CIVIL APPEAL NO. 2363 OF 2017

CIVIL APPEAL NO. 2362 OF 2017

CIVIL APPEAL NO. 2358 OF 2017

CIVIL APPEAL NO. 2361 OF 2017

CRIMINAL APPEAL NO. 277 OF 2017

AND

CIVIL APPEAL NO. 2364 OF 2017

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J U D G M E N T A.K. SIKRI, J.

Prologue

All these appeals arise out of the judgment dated August 04, 2016

rendered by the High Court of Delhi in writ petitions filed before it under

Article 226 of the Constitution of India.  We would refer to the subject

matter of those writ petitions and the manner in which the High Court

dealt with and decided the same at the appropriate stage.  However, it

would be pertinent to point out that in the said impugned judgment, main

issue related to the status of National Capital Territory of Delhi (NCTD)

and in, particular, about administration of NCTD, powers exercisable by

and functions of the elected Government of NCTD (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

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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 in Article 239.  In

the year  1962,  Article  239A was inserted,  providing a  little  departure

from the Scheme of administration contained in Article 239, insofar as

Union Territory of Puducherry is concerned. Likewise by the Constitution

(Sixty  Ninth  Amendment)  Act,  1991  special  provision  with  respect  to

Delhi  stood  incorporated.   This  Article,  inter  alia,  provides  for  a

Legislative Assembly for NCTD, Legislative Assembly which comprises

of Members who are elected representatives. It  means that voters of

NCTD elect their representatives to the Legislative Assembly.

3) The seminal issue which arose for consideration before the High Court

in the writ petitions concerned the powers exercisable by such elected

Government and the manner in which NCTD is to be administered.   As

noted  above,  as  per  Article  239,  it  is  the  President  of  India  which

administers a Union Territory and he can do so through an Administrator

to  be  appointed  by  him  with  appropriate  designation.   Such  a

designation generally is that of Administrator or Lieutenant Governor.  In

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respect of Delhi, designation bestowed is that of Lieutenant Governor.

With the aforesaid special provision inculcated by the insertion of Article

239AA and by providing  for  Legislative  Assembly, the moot  question

arose as to what are the powers of  the elected government  of  Delhi

vis-a-vis the Lieutenant Governor of Delhi.  

4) To state in a nutshell and in precise manner, the High Court of Delhi held

that  since  NCTD  remains  a  Union  Territory,  it  is  the  President  who

continues to administer NCTD as well as Territory of the Union, i.e., the

Central Government and his nominee, namely, the Lieutenant Governor

enjoys the overlapping powers. When these appeals came up before the

Division Bench of this Court, the Division Bench found that issues raised

are of seminal constitutional importance and needed to be referred to a

Constitution Bench in terms of the provisions contained in Clause 5(5) of

Article 143 of the Constitution.  The matters were, accordingly, referred

to  the  Constitution  Bench  to  answer  the  aforesaid  question,  namely,

ambit and scope of the powers of the GNCTD in juxtaposition to that of

the  Lieutenant  Governor.   The  Constitution  Bench  has  given  the

answers  to  the  various  nuances  of  the  otherwise  thorny and  ticklish

issues, vide its judgment dated July 04, 2018.  There are three opinions.

The majority opinion is penned 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

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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

actions, validity whereof was questioned by the petitioners before the

High Court is stated by the High Court in the impugned judgment itself in

a tabulated form.  It would be convenient to reproduce the same as that

captures the essence of subject matter of dispute in each of the writ

petition.

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S.No. Case No. Parties Impugned order/action 1. W.P.(C)

No.5888/2015 GNCTD  vs. UOI

Notifications dated 21.05.2015 and 23.07.2014 issued by the Govt.  of  India,  Ministry  of Home Affairs  empowering the Lt.  Governor  to  exercise  the powers  in  respect  of  matters connected with  'Services'  and directing  the  ACB  Police Station not to take cognizance of offences against officials of Central Government.  

2. W.P.(C) No.7887/2015  

Rajender Prashad  vs. GNCTD  & Ors.

Notification  dated  11.08.2015 issued  by  the  Directorate  of Vigilance,  GNCTD  under  the Commissions  of  Inquiry  Act, 1952  without  placing  before the  Lieutenant  Governor  for his views/concurrence.

3. W.P.(C) No.7934/2015

Naresh Kumar  vs. GNCTD  & Ors.

Notification  dated  04.08.2015 issued  by  the  Revenue Department,  GNCTD  revising minimum  rates  of  agricultural land  (circle  rates)  under  the provisions of Indian Stamp Act, 1899  and  Delhi  Stamp (Prevention  of  Undervaluation of  Instrument)  Rules  without placing  before  the  Lieutenant Governor  for  his views/concurrence.

4. W.P.(C) No.8190/2015

Sandeep Tiwari  vs. GNCTD  & Ors.

Order  passed  by  the Department of Power, GNCTD under Delhi Electricity Reforms Act,  2000  read  with  Delhi Electricity  Reforms  (Transfer Scheme)  Rules,  2001 appointing  the  Nominee Directors  on  Board  of Electricity  Distribution Companies  without  placing before  the  Lieutenant Governor  for  his views/concurrence.

5. W.P.(C) M.A. Notification  dated  11.08.2015

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No.8382/2015 Usmani  vs. UOI & Anr.

issued  by  the  Directorate  of Vigilance,  GNCTD  under  the Commissions  of  Inquiry  Act, 1952  without  placing  before the  Lieutenant  Governor  for his views/concurrence.

6. W.P.(C) No.8867/2015

UOI  vs. GNCTD  & Anr.

Notification  dated  11.08.2015 issued  by  the  Directorate  of Vigilance,  GNCTD  under  the Commissions  of  Inquiry  Act, 1952  without  placing  before the  Lieutenant  Governor  for his views/concurrence.

7. W.P.(C) No.9164/2015

Sandeep Tiwari  vs. GNCTD  & Ors

Policy  Directions  dated 12.06.2015  issued  by  the Department of Power, GNCTD under  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

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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  Police  Service  etc.  or  those  who  are

recruited  for  Union  Territories,  commonly  known  as  NCT  of  Delhi,

Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra &

Nagar Haveli Civil Service (DHANICS).  Admittedly these officers/public

servants do not belong to Union Territory of Delhi exclusively or, for that

matter, at all.  They are placed at the disposal of NCTD by the Central

Government.   To this  extent  there  is  no dispute.   However, bone of

contention is about their mobility, i.e. their posting within Delhi itself from

one place/department to other.  To put it otherwise, the issue is as to

whether such posting orders are to be passed by the President of India

(or for that matter the Lieutenant Governor) or it is the Government of

NCTD which is competent to exercise such a power once the manpower

is assigned to it.

(ii) Other  issue  relates  to  the  setting  up  of  Anti-Corruption  Bureau

Police Station (ACB Police Station).  Vide Notifications dated May 21,

2015 and July  23,  2014 the  Government  of  India,  Ministry  of  Home

Affairs empowered the Lieutenant Governor to exercise such a power

and directed  ACB Police  Station  not  to  take  cognizance  of  offences

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against  officials  of  Central  Government.   These  Notifications  were

challenged by the GNCTD on the ground that ACB Police Stations are

empowered  to  take  cognizance  of  offences  against  officials  of  the

Central Government as well, so long as they are posted in Delhi.

(iii) Another dispute between the GNCTD and the Central Government

arises out of Commission of Inquiry Act, 1952 (COI Act).  It is :  Whether

GNCTD is empowered to set up Commission of Inquiry under the said

Act  of  its  own  and  without  placing  the  matter  before  the  Lieutenant

Governor for his views/concurrence.

(iv) Delhi  Electricity  Reforms  Act,  2011  is  enacted  which  is  State

Legislative.  Delhi Electricity Reforms (Transfer Schemes) Rules, 2001

have also been framed under this Act.  The GNCTD issued orders under

the said Act and Rules appointing the nominee Directors on the Board of

Electricity Distribution Companies without placing the matter before the

Lieutenant Governor for his views/concurrence.  The competence of the

GNCTD  to  pass  such  executive  order  is  another  subject  matter  of

dispute.

(v) Another  area  of  conflict  is  about  the  appointment  of  Public

Prosecutors under Section 24 of the Code of Criminal Procedure.  Issue

is as to whether  this  power 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

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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 of his Council of Ministers. 239-AA. Special provisions with respect to Delhi.—(1) As from the date  of  commencement  of  the  Constitution  (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the  National  Capital  Territory  of  Delhi  (hereafter  in  this  Part referred to as the National Capital Territory) and the administrator thereof  appointed under Article 239 shall  be designated as the Lieutenant Governor. (2)(a)  There  shall  be  a  Legislative  Assembly  for  the  National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory. (b)  The total  number  of  seats  in  the  Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the  National  Capital  Territory  into  territorial  constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament.

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(c) The provisions of Articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the members thereof as they apply, in relation to a State, the Legislative Assembly of a State and  the  members  thereof  respectively;  and  any  reference  in Articles 326 and 329 to ‘appropriate Legislature’ shall be deemed to be a reference to Parliament. (3)(a) Subject to the provisions of this Constitution, 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. (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 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 that  in  the case of  difference of  opinion between the Lieutenant  Governor  and  his  Ministers  on  any  matter,  the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and

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pending such decision it  shall  be competent  for  the Lieutenant Governor  in  any  case  where  the  matter,  in  his  opinion,  is  so urgent that it  is necessary for him to take immediate action, to take such action or  to  give such direction in  the matter  as he deems necessary. (5) The Chief Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President. (6) The Council of Ministers shall be collectively responsible to the Legislative Assembly. {(7)(a)} Parliament may, by law, make provisions for giving effect to,  or  supplementing  the  provisions  contained  in  the  foregoing clauses and for all matters incidental or consequential thereto. {(b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.} (8) The provisions of Article 239-B shall, so far as may be, apply in  relation  to  the  National  Capital  Territory,  the  Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union territory of  {Puducherry},  the administrator  and its Legislature,  respectively;  and  any  reference  in  that  article  to ‘clause (1) of Article 239-A’ shall be deemed to be a reference to this article or Article 239-AB, as the case may be.”

10) As  pointed  above,  the  Court  in  aforesaid  Constitution  Bench

judgment took note of the fact that with insertion of Article 239AA, which

gave special status to the Union Territory of Delhi known as National

Capital  Territory  of  Delhi  (NCTD),  the  NCTD has  its  own  Legislative

Assembly which is  elected body through the election process by the

voters of NCTD.  The principal question, therefore, was as to whether

this  amended  constitutional  provision  had  transformed  the  status  of

Delhi and what is the extent and power which are to be accorded to the

Legislative  Assembly  as  well  as  the  Executive  as  a  result  of  these

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elections, i.e., Government 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  of a

detailed report submitted by Balakrishnan Committee.  This narration in

the judgment is as follows:

"15.  On  12-12-1911,  Delhi  became  the  capital  of  India.  Delhi Tehsil  and  Mehrauli  Thana  were  separated  from  Punjab  and annexed to Delhi headed by a Commissioner and it came to be known as the Chief Commissioner's province. In 1912, the Delhi

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Laws Act, 1912 came into force with effect from 1-10-1912 making certain laws prevalent in Punjab to be applicable to Delhi.  The Delhi Laws Act, 1915 empowered the Chief Commissioner, Delhi to determine application of laws by issuing appropriate notification in the Gazette of India. The Government of India Act, 1919 and the Government of India Act, 1935 retained Delhi as a Centrally administered territory. On coming into force of the Constitution of India  on 26-1-1950,  Delhi  became a Part  C State.  In  the year 1951, the Government of Part C States Act, 1951 was enacted providing, inter alia, for a Legislative Assembly in Delhi. Section 21(1)  of  the  1951 Act  empowered the  Legislative  Assembly to make laws on all matters of List II of the Seventh Schedule of the Constitution except  (i)  public order;  (ii)  police (including railway police); (iii) constitution and powers of municipal corporations and local  authorities,  etc.  —  public  utility  authorities;  (iv)  lands  & buildings vested in/in possession of the Union situated in Delhi or New Delhi;  (v)  offences against  laws about subjects mentioned from (i) to (iv); and (vi) jurisdiction of courts with respect to the above matters and court fee thereon.

16. On  19-10-1956,  the  Constitution  of  India  (Seventh Amendment) Act, 1956 was passed to implement the provisions of the States Reorganisation Act, 1956 which did away with Part A, B, C and D States and only two categories, namely, States and Union Territories remained and Delhi became a Union Territory to be administered by an Administrator appointed by the President. The  Legislative  Assembly  of  Delhi  and  the  Council  stood abolished. In the year 1953, the Government of Union Territories Act, 1963 was enacted to provide for Legislative Assemblies and Council  of  Ministers  for  various  Union  Territories  but  the provisions of the said Act were not made applicable to Delhi. The Delhi Administration Act, 1966 was enacted to provide for limited representative  Government  for  Delhi  through  a  Metropolitan Council  comprising 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

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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  objective appraisal, we are fully convinced that most of the arguments against  making  Delhi  a  State  of  the  Union  are  very substantial, sound and valid and deserve acceptance. This was  also  the  view  expressed  before  us  by  some  of  the eminent and knowledgeable persons whom we interviewed. As these arguments are self-evident we find it unnecessary to  go  into  them  in  detail  except  those  relating  to constitutional and financial aspects covered by them.

6.5.6. The important argument from the constitutional angle is based on the federal type of our Constitution under which there  is  a  constitutional  division  of  powers  and  functions between  the  Union  and  the  State.  If  Delhi  becomes  a full-fledged State,  there will  be  a  constitutional  division of sovereign,  legislative  and  executive  powers  between  the Union and the State of Delhi. One of the consequences will be that in respect of matters in the State List, Parliament will have no power on jurisdiction to make any law except in the special  and  emergency  situations  provided  for  under  the Constitution and to that extent the Union Executive cannot exercise executive powers  or  functions.  The constitutional prohibition on the exercise of powers and functions will make it virtually impossible for the Union to discharge its special responsibilities in relation to the National Capital as well as to the nation itself. We have already indicated in an earlier chapter the special features of the National Capital and the need  for  keeping  it  under  the  control  of  the  Union Government.  Such  control  is  vital  in  the  national  interest irrespective of whether the subject-matter is in the State field or Union field. If the administration of the National Capital is divided into rigid compartments of State field and Union field, conflicts  are  likely  to  arise  in  several  vital  matters, particularly  if  the  two  Governments  are  run  by  different political parties. Such conflicts may, at times, prejudice the national interest….

xx xx xx

6.5.9. We are also impressed with the argument that Delhi as the National Capital belongs to the nation as a whole and any  constituent  State  of  the  Union  of  which  Delhi  will

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become a part would sooner or later acquire a predominant position in relation to other States. Sufficient constitutional authority  for  Union  intervention  in  day-to-day  matters, however vital some of them may be, will 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 Administrator has to be on the aid and advice of his Council of Ministers which means that it is virtually  the  Ministers  that  should  take  decisions  on  such matters.  However, for  Delhi,  the following modifications of this general rule will have to be adopted:

(i) Firstly, the requirement of acting on the aid and advice of the Council of Ministers cannot apply to the exercise by the Administrator of any judicial or quasi-judicial functions. The reason is obvious because in respect of such functions there is no question of acting on the advice of another person.

(ii) Secondly, the requirement is only in relation to matters in respect of which the Legislative Assembly has the powers to make  laws.  This  power  will  be  subject  to  the  restrictions already  dealt  with  earlier  in  the  Report.  Accordingly,  the Council  of  Ministers  will  not  have jurisdiction to  deal  with

17

matters  excluded  from  the  purview  of  the  Legislative Assembly.

(iii) Thirdly, there is need for a special provision to resolve differences  between  the  Administrator  and  his  Council  of Ministers  on  any  matter  concerning  the  administration  of Delhi.  Normally,  the  general  principle  applicable  to  the system of responsible Government under the Constitution is that  the Head of  the Administration should act  as a mere constitutional figurehead and will have to accept the advice of the Council of Ministers except when the matter is left to his  discretion.  However,  by  virtue  of  Article  239  of  the Constitution,  the  ultimate  responsibility  for  good administration  of  Delhi  is  vested  in  the  President  acting through the Administrator. Because of this the Administrator has  to  take  a  somewhat  more  active  part  in  the administration than the Governor of a State. It is, therefore, necessary  to  reconcile  between  the  need  to  retain  the responsibility of the Administrator to the Centre in this regard and the need to enforce the collective responsibility of the Council  of  Ministers  to  the  Legislature.  The  best  way  of doing this is to provide that in case of difference of opinion which cannot be resolved between the Administrator and his Council  of  Ministers,  he  should  refer  the  question  to  the President and the decision of the President thereon will be final. In cases of urgency, if immediate action is necessary, the Administrator may direct action to be taken pending such decision of the President. A 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

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• 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 been raised in these appeals, we would like

to  incorporate  the  portions  of  the  majority  judgment  which  have

interpreted these Articles:

"Interpretation of Articles 239 and 239-A:

174.  The aforesaid passages set two guidelines. First, it permits judicial creativity and second, it mentions one to be conscious of pragmatic realism of the obtaining situation and the controversy. That apart, there is a suggestion to take note of the behavioural needs and norms of life. Thus, creativity, practical applicability and perception of reality from the societal perspective are the warrant while  engaging  oneself  with  the  process  of  interpretation  of  a constitutional provision.

175. To settle the controversy at hand, it is imperative that we dig deep and perform a meticulous analysis of Articles 239, 239-A, 239-AA and 239-AB all of which fall in Part VIII of the Constitution bearing the heading, “The Union Territories”. For this purpose, let us reproduce the aforesaid Articles one by one and carry out the indispensable and crucial task of interpreting them.

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176.  Article  239  provides  for  the  administration  of  Union Territories. It reads as follows:

“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  of  his  Council  of Ministers.”

(emphasis supplied)

177.  The  said  Article  was  brought  into  existence  by  the Constitution (Seventh Amendment) Act, 1956. Clause (1) of Article 239, by employing the word “shall”, makes it abundantly clear that every  Union  Territory  is  mandatorily  to  be  administered  by the President through an Administrator unless otherwise provided by Parliament in the form of a law. Further, clause (1) of Article 239 also stipulates that the said Administrator shall be appointed by the President with such designation as he may specify.

178. Clause  (2)  thereafter,  being  a  non  obstante  clause,  lays down  that  irrespective  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.”

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180. Again,  the Court,  while interpreting Article 239 in  Union of India and others v. Surinder S. observed:-

“The unamended Article 239 envisaged administration of the States  specified  in  Part  C  of  the  First  Schedule  of  the Constitution by the President through a Chief Commissioner or a Lieutenant Governor to be appointed by him or through the Government of a neighbouring State. This was subject to other provisions of Part VIII of the Constitution. As against this, amended Article 239 lays down that subject to any law enacted  by  Parliament  every  Union  Territory  shall  be administered  by  the  President  acting  through  an Administrator appointed by him with such designation as he may specify. In terms of clause (2) of Article 239 (amended), the President  can appoint  the Governor of  a State as an Administrator  of  an  adjoining  Union  Territory  and  on  his appointment,  the  Governor  is  required  to  exercise  his function as an Administrator independently of his Council of Ministers. The difference in the language of the unamended and  amended  Article  239  makes  it  clear  that  prior  to 1-11-1956,  the  President  could  administer  Part  C  State through  a  Chief  Commissioner  or  a  Lieutenant  Governor, but,  after  the  amendment,  every  Union  Territory  is required to be administered by the President through an Administrator appointed by him with such designation as he may specify.  In  terms of  clause (2)  of  Article 239 (amended),  the  President  is  empowered  to  appoint  the Governor of State as the Administrator to an adjoining Union Territory and once appointed, the Governor, in his capacity as Administrator, has to act independently of the Council of Ministers of the State of which he is the Governor.”

"181. Now, let us proceed to scan Article 239-A of the Constitution which deals with the creation of  local legislatures or Council  of Ministers or both for certain Union Territories. It reads as follows:

“239-A.  Creation  of  local  legislatures  or  Council  of Ministers  or  both  for  certain  Union  Territories.—(1) Parliament  may  by  law  create  for  the  Union  Territory  of Puducherry—

(a) a body, whether elected or partly nominated and partly elected, to function as a legislature for the Union Territory, or

(b)  a  Council  of  Ministers,  or  both with  such constitution, powers and functions, in each case, as may be specified in the law.

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(2) Any such law as is referred to in clause (1) shall not be deemed to  be  an  amendment  of  this  Constitution  for  the purposes of Article 368 notwithstanding that it contains any provision 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 of  Andaman and Nicobar  Islands,  Daman  and  Diu,  Dadra  and  Nagar  Haveli, Lakshadweep and Chandigarh. However, we may hasten to add that Puducherry cannot be compared with the NCT of Delhi as it is solely governed by the provisions of Article 239-A.

P.  Interpretation of Article 239-AA of the Constitution

185. We shall now advert to the interpretation of Articles 239-AA and 239-AB of the Constitution which are the gravamen of the present batch of appeals. The said Articles require an elaborate interpretation and a thorough analysis to unearth and discover the true  intention  of  Parliament  while  inserting  the  said  Articles,  in exercise of its constituent power, by the Constitution (Sixty-ninth Amendment) Act, 1991. The said Articles read as follows:

“239-AA. Special  provisions with  respect  to  Delhi.—(1) As  from  the  date  of  commencement  of  the  Constitution (Sixty-ninth  Amendment)  Act,  1991,  the  Union  Territory  of Delhi shall be called the National Capital Territory of Delhi (hereafter  in  this  Part  referred  to  as  the  National  Capital

22

Territory)  and  the  Administrator  thereof  appointed  under Article 239 shall be designated as the Lieutenant Governor. (2)(a) There shall be a Legislative Assembly for the National Capital  Territory and the seats in such Assembly shall  be filled by Members chosen by direct election from territorial constituencies in the National Capital Territory.

(b) The total number of seats in the Legislative Assembly, the  number  of  seats  reserved  for  Scheduled  Castes,  the division  of  the  National  Capital  Territory  into  territorial constituencies (including the basis for such division) and all other  matters  relating to  the functioning of  the Legislative Assembly shall be regulated by law made by Parliament.

(c) The provisions of Articles 324 to 327 and 329 shall apply in relation to the National  Capital  Territory, the Legislative Assembly of the National Capital Territory and the Members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the Members thereof respectively; and any reference in Articles 326 and 329 to “appropriate Legislature”  shall  be  deemed  to  be  a  reference  to Parliament.

(3)(a) Subject  to  the  provisions  of  this  Constitution,  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  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:

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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 insofar as he is, by or under any law, required to act in his discretion:

Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant  Governor  shall  refer  it  to  the  President  for decision and act according to the decision given thereon by the  President  and  pending  such  decision  it  shall  be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.

(5) The Chief Minister shall  be appointed by the President and other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.

(6) The Council of Ministers shall be collectively responsible to the Legislative Assembly.

(7)(a) Parliament may, by law, make provisions for giving effect to, or  supplementing  the  provisions  contained  in  the  foregoing clauses and for all matters incidental or consequential thereto.

(b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.

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(8) The provisions of Article 239-B shall, so far as may be, apply in  relation  to  the  National  Capital  Territory,  the  Lieutenant Governor and the Legislative Assembly, as they apply in relation to  the  Union  Territory  of  Puducherry,  the  Administrator  and  its legislature,  respectively;  and  any  reference  in  that  Article  to “clause (1) of Article 239-A” shall 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 which reads thus:

“1.  The  question  of  reorganisation  of  the  administrative set-up in the Union Territory of  Delhi  has been under the consideration  of  the  Government  for  some  time.  The Government of India appointed on 24-12-1987 a Committee to  go  into  the  various  issues  connected  with  the administration of  Delhi  and to recommend measures inter alia  for  the  streamlining  of  the  administrative  set-up.  The Committee  went  into  the  matter  in  great  detail  and considered the issues after holding discussions with various individuals, associations, political parties and other experts and  taking  into  account  the  arrangements  in  the  national capitals of other countries with a federal set-up and also the debates in the Constituent Assembly as also the reports by earlier  Committees  and  Commissions.  After  such  detailed inquiry and examination, it recommended that Delhi should continue  to  be  a  Union  Territory  and  provided  with  a

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Legislative Assembly and a Council of Ministers responsible to  such  Assembly  with  appropriate  powers  to  deal  with matters of concern to the common man. The Committee also recommended  that  with  a  view  to  ensure  stability  and permanence the arrangements should be incorporated in the Constitution  to  give  the  National  Capital  a  special  status among the Union Territories.

2. The Bill seeks to give effect to the above proposals.”

The  aforesaid,  as  we  perceive,  really  conceives  of conferring  special  status  on  Delhi.  This  fundamental grammar has to be kept in view when we penetrate into the interpretative dissection of Article 239-AA and other articles that are pertinent to understand the said provision.

187.  The  aforesaid,  as  we  perceive,  really  conceives  of conferring  special  status  on  Delhi.  This  fundamental grammar has to be kept in view when we penetrate into the interpretative dissection of Article 239-AA and other articles that are pertinent to understand the said provision.”

 15) After interpreting the provisions in the manner aforesaid, the Court

concentrated on the status of  NCTD,  in  particular.  In  the  process,  it

referred to earlier judgment in the case of Samsher Singh vs. State of

Punjab1, from which it culled out the powers of the Governor in a State

where  the  Governor  was  empowered  to  act  ‘in  his  discretion’.   It

observed:

"192.  Thereafter, A.N. Ray, C.J. discussed the provisions of 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

1 (1974) 2 SCC 831

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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-judicial  functions,  is  not  bound  to  act  according  to  the advice of the Council of Ministers and the same is manifest from the proviso to Section 44(1). The Court went on to say: (SCC pp. 229-30, paras 14-15)

“14. … It transpires from the proviso that in the event of a difference  of  opinion  between  the  Administrator  and  his Ministers  on  any  matter,  the  Administrator  shall  refer  the matter to the President for decision and act according to the decision given thereon by the President. If the President in a given  situation  agrees  with  what  the  Administrator  opines contrary  to  the  advice  of  the  Council  of  Ministers,  the Administrator  would be able  to override the advice of  the Council  of  Ministers  and  on  a  reference to  the  President under  the  proviso,  obviously  the  President  would  act according  to  the  advice  of  the  Council  of  Ministers  given under  Article  74. Virtually,  therefore,  in  the  event  of  a difference of opinion between the Council of Ministers of the Union  Territory  and  the  Administrator,  the  right  to  decide would  vest  in  the  Union  Government  and  the  Council  of Ministers of the Union Territory would be bound by the view taken by the Union Government. Further, the Administrator enjoys  still  some more  power  to  act  in  derogation  of  the advice of the Council of Ministers.

15. The second limb of the proviso to Section 44(1) enables the Administrator that in the event of a difference of opinion between him and the Council of Ministers not only he can refer the matter to the President but during the interregnum where the matter is in his opinion so urgent that it is necessary for him to take immediate action,  he  has  the  power  to  take  such action  or  to  give  such directions in the matter as he deems necessary. In other words, during the interregnum he can completely override the advice of the Council of Ministers and act according to his light. Neither the Governor nor the President enjoys any such power.  This basic functional difference in the powers and position enjoyed by the

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Governor  and  the  President  on  the  one  hand  and  the Administrator on the other is so glaring that it is not possible to hold  on  the  analogy  of  the  decision  in  Samsher  Singh  case [Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S)  550]  that  the  Administrator  is  purely  a  constitutional functionary bound to act on the advice of the Council of Ministers and cannot act on his own.”

(emphasis supplied)

16) Thereafter, various other judgments were taken note of including

Nine Judge Bench in NDMC v. State of Punjab2 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 retained the powers for the Union even over matters falling within  the  legislative  domain  of  the  Delhi  Assembly.  This overriding  power  of  the  Union  to  legislate  qua  other  Union Territories is exposited under Article 246(4).”

17) The Court, thereafter, specifically focused on the executive power

of the Council of Ministers of Delhi and made following remarks on this

particular aspect:    

2 (1997) 7 SCC 339

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"204. Drawing  an  analogy  while  interpreting  the  provisions  of Article 239-AA(3)(a) and Article 239-AA(4) would reveal that the executive  power  of  the  Government  of  NCT  of  Delhi  is conterminous  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.

205. The  legislative  power  conferred  upon  the  Delhi  Legislative Assembly is to give effect to legislative enactments as per the needs and requirements of Delhi whereas the executive power is conferred on the executive to implement certain policy decisions. This view is also strengthened  by  the  fact  that  after  the  Seventh  Amendment  of  the Constitution by which the words “Part C States” were substituted by the words “Union Territories”,  the word “State” in the proviso to Article 73  cannot  be  read  to  mean  Union  Territory  as  such  an interpretation would render the scheme and purpose of Part VIII (Union Territories) of the Constitution infructuous.”

18) Next facet of discussion was on the essence of Article 239AA of

the  Constitution.   It  would  be  of  use  to  take  note  of  the  following

discussion on this aspect:

"207. At the outset, we must declare that the insertion of Articles 239-AA and 239-AB, which specifically pertain to NCT of Delhi, is reflective  of  the  intention  of  Parliament  to  accord  Delhi  a  sui generis status from the other Union Territories as well as from the Union Territory of Puducherry to which Article 239-A is singularly applicable as on date. The same has been authoritatively held by the majority judgment in NDMC case [NDMC v. State of  Punjab, (1997) 7 SCC 339] to the effect that the NCT of Delhi is a class by itself.

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215. We  have  highlighted  this  difference  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.

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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) of Article 239-AA establishes the power of the Delhi Legislative Assembly to enact laws for 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.

218. Sub-clause (b) of clause (3) lays down that Parliament has the powers to make laws with respect to any matter for a Union Territory  including  NCT  of  Delhi  or  any  part  thereof  and sub-clause  (a)  shall  not  derogate  such  powers  of  Parliament. Sub-clause (c) of clause (3) gives Parliament the overriding power to the effect  that where any provision of  any law made by the Legislative Assembly of Delhi is repugnant to any provision of law made  by  Parliament,  then  the  law  made  by  Parliament  shall prevail and the law made by the Delhi Legislative Assembly shall be void to the extent of repugnancy.

219. Thus,  it  is  evident  from  clause  (3)  of  Article  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).

220. Now, it is essential to analyse clause (4) of Article 239-AA, the most important provision for determination of the controversy at  hand.  Clause  (4)  stipulates  a  Westminster  style  Cabinet system of Government for NCT of Delhi where there shall be a

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Council of Ministers 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  Delhi  Legislative Assembly has power to enact laws except in matters in respect of which the Lieutenant Governor is required to act in his discretion.

221. The proviso to clause (4) of Article 239-AA stipulates that in case  of  a  difference  of  opinion  on  any  matter  between  the Lieutenant Governor and his Ministers, the Lieutenant Governor shall  refer  it  to  the  President  for  a  binding  decision.  Further, pending such decision by the President, in any case where the matter, in the opinion of the Lieutenant Governor,  is so urgent that it is necessary for him to take immediate action, 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 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.

224. Article  239-AA(4)  confers  executive  powers  on  the Government of NCT of Delhi  whereas the executive power of the  Union  stems  from Article  73  and  is  coextensive with Parliament's  legislative  power.  Further,  the  ideas  of  pragmatic federalism and collaborative federalism will fall to the ground if we

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are to say that the Union has overriding executive powers even in respect of matters for which the Delhi Legislative Assembly has legislative  powers.  Thus,  it  can  be  very  well  said  that  the executive  power  of  the  Union  in  respect  of  NCT  of  Delhi  is confined  to  the  three  matters  in  the  State  List  for  which  the legislative  power  of  the  Delhi  Legislative  Assembly  has  been excluded under Article 239-AA(3)(a). Such an interpretation would thwart any attempt on the part of the Union Government to seize all  control  and allow the concepts  of  pragmatic  federalism and federal balance to prevail by giving NCT of Delhi some degree of required independence in its functioning subject to the limitations imposed by the Constitution.

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239. The proviso to Article 239-AA(4), we say without any fear of contradiction, cannot be interpreted in a strict sense of the mere words employed treating them as only letters without paying heed to the thought and the spirit which they intend to convey. They are not to be treated as bones and flesh without nerves and neurons that make the nerves functional.  We feel,  it  is necessary in the context to read the words of the 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.”

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

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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.

(2) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in  his discretion, the decision  of  the  Lieutenant  Governor  thereon  shall  be final. (3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final.

245. A careful perusal of Section 41 of the 1991 Act shows that the Lieutenant Governor can act in his discretion only in matters which fall outside the legislative competence of  the  Legislative  Assembly  of  Delhi  or  in  respect  of matters of which powers are entrusted or delegated to him by the President or where he is required by law to act  in  his  discretion or  to  exercise  any  judicial  or quasi-judicial  functions  and,  therefore,  it  is  clear  that  the Lieutenant Governor cannot exercise his discretion in each and every matter and by and large, his discretionary powers are limited to the three matters  over which the legislative power of the Delhi Legislative Assembly stands excluded by clause (3)(a) of Article 239-AA.

253. Another important  provision is Section 49 of  the 1991 Act which  falls  under  Part  V  of  the  Act  titled  “Miscellaneous  and Transitional  Provisions”  and  stipulates  the  relation  of  the

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Lieutenant Governor and his Ministers to the President. Section 49 reads thus:

“49. Relation of Lieutenant Governor and his Ministers to  President.—Notwithstanding  anything  in  this  Act,  the Lieutenant Governor and his Council  of  Ministers shall  be under the general control of, and comply with such particular directions, if any, as may from time-to-time be given by the President.”

"254. Section 49 of the 1991 Act discloses that the set-up in NCT of Delhi is one where the Council of Ministers headed by the Chief Minister on one hand and the Lieutenant Governor on the other are a team, a pair on a bicycle built for two with the President as its rider who retains the general  control.  Needless to say, the President, while exercising this general control, acts as per the aid and advice of the Union Council of Ministers.”

20) We would now like to reproduce, in entirety, the conclusions which

the majority judgment arrived at.  These are as under:

"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 ideologies.

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284.3. Constitutional morality, appositely understood, means the morality  that  has  inherent  elements  in  the  constitutional  norms and  the  conscience  of  the  Constitution.  Any  act  to  garner justification must possess the potentiality to be in harmony with the  constitutional  impulse.  In  order  to  realise  our  constitutional vision, it is indispensable that all citizens and high functionaries in particular inculcate a spirit of constitutional morality which negates the idea of concentration of power in the hands of a few.

284.4. All the three organs of the State must remain true to the Constitution by upholding the trust reposed by the Constitution in them. The decisions taken by constitutional functionaries and the process by which such decisions are taken must have normative reasonability and acceptability. Such decisions, therefore, must be in  accord  with  the  principles  of  constitutional  objectivity  and symphonious with the spirit of the Constitution.

284.5. The Constitution being the supreme instrument envisages the concept of  constitutional  governance which has, as its twin limbs, the principles of fiduciary nature of public power and the system  of  checks  and  balances.  Constitutional  governance,  in turn, gives birth to the requisite constitutional trust which must be exhibited by all constitutional functionaries while performing their official duties.

284.6. Ours is a parliamentary form of Government guided by the principle of  collective responsibility of the Cabinet.  The Cabinet owes a duty towards the legislature for every action taken in any of the Ministries and every individual Minister is responsible for every act of the Ministry. This principle of collective responsibility is of immense significance in the context of “aid and advice”. If a well-deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective responsibility would stand negated. 284.7. Our Constitution contemplates a meaningful orchestration of federalism and democracy to put in place an egalitarian social order,  a  classical  unity  in  a  contemporaneous  diversity  and  a pluralistic milieu in eventual cohesiveness without losing identity. Sincere  attempts  should  be  made to  give  full-fledged  effect  to both these concepts. 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

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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 emphasise that  a  mixed  balance  resulting  in  a  unique  methodology  shall serve  as  the  best  tool.  In  spite  of  diverse  views  on  the  said concept,  what  must  be  kept  primarily  in  mind  is  that  the Constitution  is  a  dynamic  and  heterogeneous  instrument,  the interpretation of  which requires consideration of  several  factors which must be given their due weightage in order to come up with a solution harmonious with the purpose with which the different provisions were introduced by the Framers of the Constitution or Parliament. 284.11. In  the  light  of  the  contemporary  issues,  the  purposive method has gained importance over the literal approach and the constitutional  courts,  with  the  vision  to  realise  the  true  and ultimate purpose of the Constitution not only in letter but also in spirit and armed with the tools of ingenuity and creativity, must not shy  away  from  performing  this  foremost  duty  to  achieve constitutional functionalism by adopting a pragmatic approach. It is, in a way, exposition of judicial sensibility to the functionalism of the  Constitution  which  we  call  constitutional  pragmatism.  The spirit  and  conscience of  the  Constitution  should  not  be  lost  in grammar  and  the  popular  will  of  the  people  which  has  its legitimacy in a democratic set-up cannot be allowed to lose its purpose in simple semantics. 284.12. In  the  light  of  the  ruling  of  the  nine-Judge  Bench in NDMC [NDMC v. State  of  Punjab,  (1997)  7  SCC 339]  ,  it  is clear as noonday that by no stretch of imagination, NCT of Delhi can  be  accorded  the  status  of  a  State  under  our  present constitutional scheme. The status of NCT of Delhi is sui generis, a class apart, and the status of the 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.

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284.13. With  the  insertion  of  Article  239-AA  by  virtue  of  the Sixty-ninth  Amendment,  Parliament  envisaged  a  representative form of Government for NCT of Delhi. The said provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate  upon  the  Lieutenant  Governor  to  act  on  the  aid  and advice of the Council of Ministers except when he decides to refer the matter to the President 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 three matters in the State List in respect of which the power of the Delhi Legislative  Assembly  has  been  excluded.  In  respect  of  other matters,  the  executive  power  is  to  be  exercised  by  the Government of NCT of Delhi.  This, however, is subject to the proviso  to  Article  239-AA(4)  of  the  Constitution.  Such  an interpretation would be in consonance with the concepts of pragmatic  federalism  and  federal  balance  by  giving  the Government of  NCT  of  Delhi some  required  degree  of independence  subject  to  the  limitations  imposed  by  the Constitution. 284.17. The meaning  of  “aid  and advise” employed in  Article 239-AA(4)  has  to  be  construed  to  mean  that  the  Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the  proviso  to  clause  (4)  of  Article  239-AA.  The  Lieutenant Governor  has  not  been entrusted  with  any  independent decision-making power. He has to either act on the “aid and

37

advice” of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him. 284.18. The words “any matter” employed in the proviso to clause (4) of Article 239-AA cannot be inferred to mean “every matter”. The power  of  the  Lieutenant  Governor  under  the  said  proviso represents the exception and not the general rule which has to be exercised  in  exceptional  circumstances  by  the  Lieutenant Governor keeping in mind the standards of constitutional trust and morality,  the  principle  of  collaborative  federalism  and constitutional  balance,  the concept  of  constitutional  governance and objectivity and the nurtured and cultivated idea of respect for a  representative  Government.  The Lieutenant  Governor  should not act in a mechanical manner without due application of mind so as  to  refer  every  decision  of  the  Council  of  Ministers  to  the President. 284.19. The  difference  of  opinion  between  the  Lieutenant Governor  and  the  Council  of  Ministers  should  have  a  sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness. 284.20. The Transaction  of  Business  Rules,  1993  stipulate  the procedure to be followed by the Lieutenant Governor in case of difference  between  him  and  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 the Lieutenant Governor  but  this  does  not  mean  that  the  concurrence  of  the Lieutenant  Governor  is  required.  The  said  communication  is imperative so as to keep him apprised in order to enable him to

38

exercise the power conferred upon him under Article 239-AA(4) and the proviso thereof. 284.22. 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. 284.23.  Fulfilment of constitutional idealism ostracising anything that is not permissible by the language of the provisions of the Constitution  and  showing  veneration  to  its  sense,  spirit  and silence is constitutional renaissance. It has to be remembered that our  Constitution  is  a  constructive  one.  There  is  no  room  for absolutism.  There  is  no  space  for  anarchy.  Sometimes  it  is argued, though in a different context, that one can be a “rational anarchist”,  but  the  said  term  has  no  entry  in  the  field  of constitutional  governance  and  rule  of  law.  The  constitutional functionaries  are  expected  to  cultivate  the  understanding  of constitutional  renaissance  by  realisation  of  their  constitutional responsibility  and  sincere  acceptance  of  the  summon  to  be obeisant  to  the  constitutional  conscience  with  a  sense  of reawakening to the vision of the great living document so as to enable  true  blossoming  of  the  constitutional  ideals.  The Lieutenant Governor and the Council of Ministers headed by the Chief Minister are to constantly remain alive to this idealism. 285. The Reference is answered accordingly. Matters be placed before the appropriate regular Bench.”

21) The  lucid  and  equally  well  considered  opinions  have  been

rendered by Justice Dhananjay Y. Chandrachud and one of us (Justice

Ashok  Bhushan)  which  are  substantially  on  the  same  lines  as  the

majority opinion.  There is, however, a slight difference in approach and

to some extent discordant note is expressed in the opinion of Justice

Ashok Bhushan.  We would advert to these opinions and as well as the

area of difference at the appropriate stage.

39

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 principle of such co-extensive executive power, which is recognised

for the Union/Central Government as well as State Governments, has

been accepted in the case of GNCTD as well.  Thus, in this hue, the

Constitution Bench has also accepted that the Lieutenant Governor is to

act  on the aid and advice of  the Council  of  Ministers in  all  his  acts,

40

except those functions where the Lieutenant Governor is permitted to

exercise his own discretion.

23) Since this executive power is co-extensive with legislate power, the

appellants  emphasised  before  us  that  the  Constitution  Bench  has

categorically held that this power extends over all the subjects except

three subjects in the State List, i.e., Entries 1, 2 and 18.  The executive

power also extends to all subjects in the Concurrent List.  The appellants

also  submitted  that  this  executive  power  is  to  the  exclusion  of  the

executive power  of  the Union with respect  to  such matters,  meaning

thereby such power exclusively vests with the GNCTD.

24) The aforesaid manner of reading the Constitution Bench judgment

is  disputed by the respondents.   Insofar  as legislative domain of  the

Legislative  Assembly  of  Delhi  is  concerned,  though  the  respondents

accept that  the Legislative Assembly has the power to make laws in

respect of all the Entries in List II except matters with respect to Entries

1,2 and 18 and Entries 64, 65 and 66 of List II insofar as they relate to

said Entries 1, 2 and 18 and also power to legislate in respect of subject

matters  contained  in  the  Concurrent  List  (List  III).   However,  their

submission  is  that  this  power  is  not  exclusive  to  the  Legislative

Assembly  of  Delhi.  On  the  contrary,   the  power  of  the  Union,  i.e.,

Parliament to legislate on any entries of List II as well as List III remains

41

intact. Further, wherever Union has exercised the power by making laws

in respect of any such subject matter, it is the Union’s law which shall

prevail  in  case  of  any  repugnancy  in  the  light  of  Article  246  of  the

Constitution.

25) Insofar  as  executive  power  of  the  GNCTD  is  concerned,  the

submission of the respondents is that though the Constitution Bench has

held  that  such  executive  power  is  co-extensive  with  the  legislative

power,  but  it  has  nowhere  held  that  such  a  power  is  exclusively

conferred upon the GNCTD, i.e., to the exclusion of the Union.  Here

also, according to the respondents, power of the Union remains intact,

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

42

(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 founded on its basic contention that since there is an elected

Council of Ministers in NCT Delhi, it should be treated as equivalent to a

State.  It was in support of this contention raised by GNCTD that the

prayer for non-applicability of Article 239 in the case of NCT Delhi had

also been made.

29) On the other hand, on behalf of the Union of India, it had been

contended before this Court that the Scheme in the Constitution of India

envisages at the threshold – vestige of executive power in the President

of India under Article 53 of the Constitution of India to be exercised by

the President on the aid and advice of the Union Council of Ministers.  It

is only after the vestige of the executive power takes place under Article

53 of the Constitution of India that the subsequent provisions of Article

43

73 and Article 246 define the extent of Executive and Legislative powers

of the Union by dividing the Entries in the 3 Lists of the 7 th Schedule,

between the Union on the one hand and the States on the other. In the

same  manner,  the  provision  of  Article  152  applies  the  same  rule  of

vesting of the executive power in relation to all items mentioned in List II

of the 7th Schedule, in the Governor of any State to be exercised by the

Council of Ministers of the said State Government.  In other words, it

had been submission of both Government of NCT of Delhi and Union of

India before the constitution Bench of this court that unless and until this

Court accepts the claim of the Government of NCT of Delhi that NCT

Delhi would deserve to be treated as a State, the claim that Exclusive

Executive Jurisdiction in relation to all  items in List II  (except matters

with respect of 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

would vest in NCT Delhi – could not be accepted and would deserve to

be  rejected.   It  is  argued that  the  claim of  GNCTD that  a  ‘State’  is

specifically rejected by the Constitution Bench.

30) Further, having regard to the critical fact of the NCT Delhi being the

National Capital and all eventual responsibilities rest on the shoulders of

the Union Government, the President of India shall continue to exercise

Exclusive Executive Jurisdiction with regard to Item Nos. 1, 2 and 18 of

the State List and Entries 64, 65 and 66 of that List insofar as they relate

44

to  the  said  Entries  e,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  State  shall  have  executive  power  in

relation to subjects in List II and List III of the Constitution of India.

(iii) However, once the Parliament and/or any State Legislature frames

3 AIR 1995 SC 549

45

any legislation, the executive power of the respective governments shall

be strictly in accordance with the provisions of any said legislation. [Para

12 of the judgment in Ram Jawaya Kapur]

32) The above-mentioned third proposition as has been held by this

Court in Ram Jawaya Kapur’s judgment, has been reiterated in various

subsequent  judgments  of  this  Court  including in  the judgment  of  the

Constitution Bench of this court in the present case on July 04, 2018

where the following dictum had been incorporated:-

"……..277  ….(xv)…..However,  if  the  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 the Parliament…….”

33) The respondents point out that in all the three opinions constituting

the  judgment  dated  July  04,  2018,  this  Court  has  specifically  and

categorically rejected both the above-mentioned contentions raised on

behalf  of  the  NCT Delhi  and  has  categorically  held  that  Article  239

continues to apply to NCT Delhi and further that NCT Delhi is not a State

but continues to remain a Union Territory.  Reference in this regard may

be made to the following paras:

"196. Thus, NDMC [NDMC v. State of Punjab, (1997) 7 SCC 339] makes  it  clear  as  crystal  that  all  Union  Territories  under  our constitutional scheme are not on the same pedestal and as far as NCT of Delhi is concerned, it is not a State within the meaning of Article 246 or Part VI of the Constitution. Though NCT of Delhi partakes a unique position after the Sixty-ninth Amendment, yet in sum  and  substance,  it  remains  a  Union  Territory  which  is

46

governed  by  Article  246(4)  of  the  Constitution  and  to  which Parliament, in the exercise of its constituent power, has given the appellation of the “National Capital Territory of Delhi”.

xx xx xx

201.  In the light  of  the aforesaid analysis and the ruling of  the nine-Judge Bench in NDMC [NDMC v. State of Punjab, (1997) 7 SCC 339] , it is clear as noonday that by no stretch of imagination, NCT of Delhi  can be accorded the status of  a State under our present  constitutional  scheme and the status  of  the 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 Constitution to make laws with respect to any matter for the Union Territory or any part thereof.”

Sub-section (1) of Section 18 was similar in language to Article 239-AA(3)(a), without the exclusion of matters relating to Entries 1, 2 and 18 and Entries 64, 65 and 66. Sub-section (2) was similar in language to Article 239-AA(3)(b).  Section 21 provided that if there was any inconsistency between a law made by Parliament and a law made by the Legislative Assembly, the law made by

47

Parliament  would  prevail  to  the  extent  of  repugnancy  [this provision is similar in nature to Article 239-AA(3)(c)].

453. The  judgment  of  the  majority  also  holds  that  all  Union Territories  are  not  situated  alike.  The first  category  consists  of Union  Territories  which  have  no  legislature  at  all.  The  second category has legislatures created by a law enacted by Parliament under the Government of  Union Territories Act,  1963. The third category  is  Delhi  which  has  “special  features”  under  Article 239-AA.  Though the  Union  Territory  of  Delhi  “is  in  a  class  by itself”, it “is certainly not a State within the meaning of Article 246 or Part  VI of  the Constitution”.  Various Union Territories — the Court observed — are in different stages of evolution. However, the  position  remains  that  these  Union  Territories,  including  the NCT are yet Union Territories and not a State.

Authored by Justice Ashok Bhushan: 559. After  examining  the  constitutional  scheme  delineated  by Article  239-AA,  another  constitutional  principle  had  been  laid down  by  the  Constitution  Bench  that  Union  Territories  are governed  by  Article  246(4)  notwithstanding  their  differences  in respective  set-ups  and  Delhi,  now called  the  “National  Capital Territory of Delhi” is yet a Union Territory. The Constitution Bench had also recognised that the Union Territory of Delhi is in a class by itself, certainly not a State. Legislative power of Parliament was held to cover Union Territories including Delhi.

583. The submission of the appellants that proviso to clause (4) of Article 239-AA envisages an extreme and unusual situation and is not meant to be a norm, is substantially correct. The exercise of power under the proviso cannot be a routine affair and it is only in cases where the Lieutenant Governor on due consideration of a particular decision of the Council of Ministers/Ministers, decides to make a reference so 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

48

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  necessary  and

inevitable position which emerges is that when in paragraph 217, 218

and 219, the majority judgment, acknowledged the exclusive Executive

jurisdiction of the Union Government in relation to 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) of the Seventh Schedule, this Court did not and

could not have held that “exclusive” executive jurisdiction vests with the

Government of NCT of Delhi in relation to all other entries in List II of the

Seventh Schedule.

35) On the contrary, argued the appellants,  this  Court  has held the

existence and vestige of non-exclusive Executive Jurisdiction in relation

to the remaining entries of List II  that of List III for NCTD, since this

court has categorically held that NCTD is a Union Territory and not a

State, Article 239 continues to apply in relation to NCTD and further the

same principle of Ram Jawaya Kapur of co-extensive executive power

with the legislative power of any Government also applies to the Union

government in relation to the Union Territory of NCTD.

36) After highlighting the above aspect, submission on behalf of Union

49

of  India/Lieutenant  Governor  is  that  the  true  and  correct  scope  and

interpretation  of  Article  239AA  in  relation  to  NCTD  in  the  entire

constitutional scheme (and as laid down in the judgment dated July 04,

2018 passed by the Constitution Bench of this Court including in paras

217, 218 and 219 of the majority judgment), brings into existence the

position as tabulated below:

Union GNCTD Exclusive Executive Power  of  the Union

Non-Exclusive Executive Power  of  the Union

Exclusive Executive Power  of GNCTD

Non-Exclusive Executive Power  of GNCTD

All  the  entries in  List  I  and Entries  1,2  ad 18 of the List II and Entries 64, 65  and  66  of that List insofar as  they  relate to  the  said Entries 1,2 and 18.

All  the  entries in  the  List  II and  List  III excluded by the phrase ‘insofar as  any  such matter  is applicable  to Union Territories.”

All  entires  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. -to  be  exercise through  the route of Proviso to  Article 239AA(4)

NIL

[Exclusive  Executive  Power under  the constitution  is available  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

50

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 anomalous reading of the judgment dated July 04, 2018 passed by

the Constitution Bench of this court and would deserve rejection by this

Court.   

38) It  is  further  submitted that  the intention of  Parliament  to  confer

overriding executive powers to the Central Government is evident from

the  provisions  of  Section  49  of  the  1991  Act  which  empowers  the

President  to  exercise  general  control  and  to  issue  directions  to  the

Lieutenant Governor and his Council of Ministers.  Section 52 stipulates

that all contracts relating to the administration of the Capital are made in

exercise of the executive power of the Union and suits and proceedings

in connection with the administration can be instituted by or against the

Union Government. Reliance is placed on paras 86 ad 87 of the opinion

authored by Justice D.Y., Chandrachud, which are as under:

"86. Section 49 establishes the principle of the “general control” of the President over the Lieutenant Governor and the Council  of Ministers:

“49. Relation of Lieutenant Governor and his Ministers to  Presi-dent.—Notwithstanding  anything  in  this  Act,  the Lieutenant Governor and his Council  of  Ministers shall  be

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under the general control of, and comply with such particular directions, if any, as may from time to time be given by the President.”

"As an incident of control, the Lieutenant Governor and Council of Ministers must comply with the particular directions issued by the President.  Such directions are obviously issued on the aid and advice of the Union Council of Ministers.

Section  52  stipulates  that  all  contracts  relating  to  the administration of the Capital are made in exercise of the executive power of the Union and suits and proceedings in connection with the  administration  can  be  instituted  by  or  against  the  Union Government.

87. This survey of the provisions of the GNCTD Act, 1991 indicates that there is a significant interface between the President and the Lieutenant Governor in matters relating to the administration of the  Capital.  The Lieutenant  Governor  has  been conferred  with certain  specific  powers  by  the  provisions  of  the  Act  including, among them, requirements of seeking the prior recommendation of the President to the introduction of financial Bills. As we have seen,  the  Lieutenant  Governor  has  been subjected  to  a  wider obligation to reserve Bills for the consideration of 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,  subjects the Lieutenant  Governor and the Council  of Ministers  to  the  general  control  of  the  President  and  to  such directions as may be issued from time to time.”

52

39) Reference  is  also  made  to  Articles  239AB  and  356  of  the

Constitution of India.

"239AB.  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 239AA 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 239AA 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 239AA.

356. Provisions in case of  failure of  constitutional  machinery in State

(1) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with  he  provisions  of  this  Constitution,  the  President  may  be Proclamation

(a)  assume  to  himself  all  or  any  of  the  functions  of  the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State;

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;

(c)  make such incidental and consequential provisions as appear to the president to be necessary or desirable for giving effect to the  objects  of  the  Proclamation,  including  provisions  for suspending in whole or in part the operation of any provisions of this constitution relating to any body or authority in the State

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Provided that nothing in this clause shall authorise the President to assume to himself any of the 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  the  operation  of  Article

239AA even in a case where the President [i.e. the Union Executive] is

satisfied that it is necessary to do so for proper administration of NCTD.

41) In nutshell, submission on behalf of the Union of India is that when

the judgment  dated July 04,  2018 passed by the Constitution Bench

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comprising three separate opinions is read as a whole in the manner

projected above and there is a harmonization of the three opinions to

discern the law which has been laid  down by this  Court  –  the legal

position projected by the respondents gets strengthened.  As per the

appellant, such a reading of the judgment dated July 04, 2018 would

also be in consonance with the observation made in para 144 of the

opinion  authored  by  Justice  D.Y. Chandrachud,  wherein  it  has  been

observed that there is a broad coalescence (“coming together to form

one  mass  or  whole;  process  of  merger  of  two  or  more  droplets  of

particles to become one single droplet”) between the view expressed in

the three opinions in the said judgment dated 04.07.2018.

42) We may  record  at  this  stage  that  Dr.  Abhishek  Manu  Singhvi,

learned  Senior  Advocate  who  appeared  for  the  intervenor,  Reliance

Industries Limited supported the aforesaid stand taken by the Union of

India.  He also submitted that no exclusive executive power has been

conferred  upon  the  GNCTD,  i.e,  to  the  exclusion  of  the  Central

Government.  He argued that the Scheme behind Article 239AA of the

Constitution was ‘hybrid’ in nature relatable to Lists II and III.  Detailed

submission of Dr. Singhvi in this behalf would be taken note of while

dealing with the issue pertaining to ACB.

43) We  may  point  out  at  this  stage  that  learned  senior  counsel

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appearing for the Union of India have also argued, in the alternative, that

if the interpretation suggested by them to the aforesaid judgment of the

Constitution Bench is not acceptable, the matter needs to be referred to

the Constitution Bench again.  To put it differently, the submission is that

if  this  Bench interprets that  the Constitution Bench has held that  the

executive power conferred upon the GNCTD under Article 239AA of the

Constitution is to the exclusion of the power of the Union, then such an

interpretation given by the Constitution Bench is contrary to the scheme

of Article 239AA.  Efforts were made to show as to how such a view (if it

is the view of the Constitution Bench) would 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

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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 reference was made to the discussion contained

in paragraphs 217 to 219 as well as Conclusions (xv), (xvi) and (xvii) of

the  majority  opinion.   Attention  was  also  drawn  to  the  discussions

contained in paragraphs 174 to 176, 187 and 239 of the said judgment,

which have already been reproduced above.

45) Expanding the proposition that the Constitution Bench has already

held that apart from the three explicitly excluded Entries (i.e. Entries 1, 2

and 18 in List II), the Delhi Assembly and GNCTD have legislative and

executive powers over all other Entries in List II and III, it was argued

that specific contention of the Union of India to the contrary was clearly

repelled by the Constitution Bench.  Submission in this behalf was that

the  majority  judgment  clearly  records  the  submission  of  the  Central

Government in para 38 which reads as under:

"38.  The respondents also contend that although Article 239AA 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 when it employs the phrase “in sofaras any such matter is applicable  to  Union  Territories...”    and  also   by    specifically excluding   from  the  legislative  power  of  the  Assembly  certain entries as delineated in Article 239AA(3)(a).  This restriction, as

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per the respondents, limits the power of the Legislative Assembly to legislate and this restriction has to be understood in the context of conferment of special status.”

 46) The above contention is answered specifically in para 214 of the

majority judgment of the Constitution Bench, where it  is held that the

Delhi Assembly has Legislative Power with respect to all matters in the

State and Concurrent List except “matters with respect to entries which

have been  explicitly  excluded  from Article  239AA(3)(a)”.   Thus,  the

contention of the Union of India was that matters in List II and List III can

be excluded in two different ways, explicitly and implicitly, on account of

use of the phrase “insofar as any such matter is applicable to Union

Territories” and the Constitution Bench has negated that argument and

held that power of the Delhi Assembly and Government spans over all

subjects except what has been excluded explicitly.   

47) The learned counsel also submitted that at least at seven other

places,  the  majority  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”.

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(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 where the

Court observed that “Executive Power of the Union in respect of NCT of

Delhi is confined to the three matters  in the State List for which the

Legislative Power of the Delhi Legislative Assembly has been excluded

under Article 239AA(3)(a)”.

(e) This is again reiterated in the conclusions contained in Para 277

(xiv), (xv) and (xvi) as under:

"(xiv) 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”  

(xv) 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”.

(xvi) The  Union  of  India  has  exclusive  executive  power  with respect to the NCT of Delhi relating to the three matters in the State  List  in  respect  of  which  the  power  of  the  Delhi Legislative Assembly has been excluded.”

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48) This submission was sought to be supported from the concurring

judgment  of  Justice  Chandrachud (by referring  to  paras 127  to  130)

which holds that the term “insofar as any such matter is applicable to a

Union Territory” in not a terms of exclusion. Similarly, in paras 71 and 72

of  the  judgment  of  Justice  Bhushan,  it  has  been  held  that  the  said

phrase  “is  not  exclusionary  phrase  but  has  been  used  to  facilitate

conferment of power on the Delhi Assembly even in respect of entry that

begin with the term State”.

49) It  was  further  submitted  that  reliance  placed  by  the  learned

counsel appearing for  the Union of  India on Balakrishnan Committee

report  for  interpreting  the  provisions  of  Article  239AA  was  totally

misconceived inasmuch as that aspect has already been considered in

the  judgment  of  the  Constitution  Bench.   It  was  argued  that  the

Constitution Bench has interpreted the provisions of Articles 239, 239AA

and 239AB as they apply to NCT of Delhi based on first principles of

constitutionally mandated representative democracy, which is based on

popular  will.   The  Constitution  Bench  has  not  been  constrained  by

textual limitations in giving the interpretation.  This is best stated in Para

11 of  the Constitution Bench judgment,  the relevant  portion of  which

reads as under:

"11.  ...In the context of the case at hand, the democratic nature of our Constitution and the paradigm of representative participation are undoubtedly comprised in the “spirit  of  the Constitution”. While interpreting the provisions of the Constitution, the safe and

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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...”

(Emphasis Supplied)   

50) Thereafter,  in  para  15,  some  portions  of  the  Balakrishnan

Committee  are  extracted.   Then,  in  para  36,  the  Court  notes  the

argument of the Union of India seeking literal/textual interpretation and

reliance  on  Balakrishnan  Report.   Similar  reliance  on  Balakrishnan

Report  by  the  Union  of  India  is  noted  in  para  47.   Thereafter,  the

Constitution  Bench  from  Page  45  to  Page  135  has  discussed  the

principles  of  constitutional  interpretation that  will  be used to  interpret

Article 239AA.   

51) In the light of those principles, the Court thereafter has interpreted

Article  239AA  and  its  various  provisions.   Insofar  as  Balakrishnan

Committee Report is concerned, it is not accepted as interpretative tool,

as is clear from the following discussion:

"270.   There can be no quarrel  about  the proposition that  the reports of the Committee enacting a legislation can serve as an external  aid  for  construing  or  understanding  the  statute.

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However, in the instant case, as we have elaborately dealt with the meaning to be conferred on the constitutional provision that calls for interpretation,  there is no necessity to be guided by the report of the Committee.”

(Emphasis Supplied)   

52) In this context, another submission of the learned counsel for the

appellants  was that,  in  fact,  respondents  were trying to  re-argue the

entire matter and attempt was to impress this Bench to depart from the

view taken by the Constitution Bench, which was impermissible having

regard to the provisions contained in Article 145(3) of the Constitution

and in particular the proviso thereof, which reads as under:

"Article 145(3): The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of  law  as  to  the  interpretation  of  this  Constitution  or  for  the purpose of hearing any reference under Article 143 shall be five:  

Provided that, where 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”

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

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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 Legislative Assembly in NCTD with certain powers that are also

rcognised in the same provision.  The nature of Legislative Assembly is

enumerated in clause (2)(a) of Article 239AA as per which seats in the

Assembly are to be filled by the Members chosen by direction election.

In this manner, even when NCTD remains a Union Territory, it is given a

different  status  than  other  Union  Territories  in  respect  of  which

provisions of Article 239 apply.  It is also different from the status given

to Puducherry, another Union Territory which is governed by Article 239A

of the Constitution. Even for the Union Territory of Puducherry, provision

is made for creation of Legislative Assembly. Such a power is given to

the Parliament to enact this kind of law.  In exercise of that power, the

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Parliament has enacted an Act  which creates a Legislative Assembly

which is partly elected and partly nominated.  In contrast, conferment of

status upon NCTD is  by the Constitution itself  and is  not  left  to  the

Parliament.  At the same time, NCTD remains a Union Territory and is

not  elevated  to  the  status  of  a  ‘State’  governed  by  Part  VI  of  the

Constitution (Articles 152 to 237).  Thus, with the creation of Legislative

Assembly  as  well  as  elected  Government  and  conferment  of  all

legislative  and  executive  powers,  concept  of  federalism  has  been

incorporated in Article 239AA.  Article 239AA has been interpreted by the

Constitution Bench keeping in view this principle of federalism.  All these

aspects have been kept in view by the Constitution Bench while deciding

the  status  of  the  NCTD  as  well  as  conferment  of  legislative  and

executive powers to the Legislative Assembly and GNCTD respectively.

The CB judgment, therefore, has to be read keeping in view all these

parameters  as  well  as  the  constitutional  principles  adopted  in

interpreting Article 239AA.

56) Insofar as legislative power of the NCTD is concerned, there is no

dispute that  it  extends to all  the subject  matters contained in various

Entries  of  List  II  with  the  specific  exclusion  of  Entries  1,  2  and  18.

Likewise, it extends to all the Entries in the Concurrent List, i.e. List III.

At  the  same  time,  it  is  also  an  undisputed  fact  that  power  of  the

Parliament to legislate on any subject matter contained in List II is not

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excluded.  In fact, in respect of Union Territories, it is the Union, i.e. the

Parliament, which has the power to legislate on all 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 and the Legislative Assembly

of NCTD.  In that event, the law made by Parliament shall prevail and

the  law made  by  Delhi  Legislative  Assembly,  shall,  to  the  extent  of

repugnancy, be void.  First proviso to sub-clause (c), however, saves law

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made by the Legislative Assembly of Delhi if law made by it has been

reserved for the consideration of President and has received his assent.

In that event, such law made by the Legislative Assembly of Delhi shall

prevail  in NCTD.  Notwithstanding, second proviso thereto recognises

the supremacy of the Parliament by giving it  power to enact law with

respect to same subject matter as the law made by the Delhi Legislative

Assembly  and  it  includes  power  to  make  law  adding  to,  amending,

varying or even repealing the law made by the Legislative Assembly.

57) As mentioned earlier, insofar as this power of Parliament to make

laws  in  respect  of  NCTD is  concerned,  there  is  no  quarrel.   In  this

conspectus, we have to find as to whether the CB Judgment held that

insofar  as  the  executive  power  of  GNCTD is  concerned,  it  is  to  the

exclusion of the Centre, or, as contended by the learned senior counsel

appearing for the Union of India, such executive power given to Delhi

Government is co-extensive with that of Central Government.   

58) It  is  in  the  aforesaid  backdrop  that  the  observations  of  the

Constitution Bench, particularly the majority view, have to be discerned

and given an appropriate meaning.  Undoubtedly, the majority judgment

in the Constitution Bench decides that the executive power of GNCTD is

co-extensive with legislative power and it extends over all the subjects of

the lis to accept subjects mentioned in Entries 1, 2 and 18 and it also

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extends  to  all  subjects  in  List  III.   This  is  the  clear  mandate  of  the

Constitution Bench.  The controversy, however, is on the issue as to

whether  such  executive  power  of  GNCTD is  to  the  exclusion  of  the

power of the Union Government.  In this behalf, it may be noted that the

majority  judgment  has  held  that  such  executive  power  of  the  Delhi

Government is to the exclusion of the executive power of the Union.  On

the other hand, in a separate judgment rendered by one of us (Ashok

Bhushan, J.), it has been clearly held that the executive power of the

Union Government is co-extensive with that of the Delhi Government.

Discussion on this aspect, in the opinion of Ashok Bhushan, J., goes as

under:

"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, which shall enjoy exclusive executive powers.  We are of  the view that  the above interpretation as put  up by the appellant  on  constitutional  provisions  cannot  be  accepted.  The principle is well established that executive powers coexist with the legislative powers. Reference to Article 73 has been made in this context, which need to be noted.Article 73 provides as follows:

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“73. Extent of executive power of the Union.—(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend—

(a)  to  the  matters  with  respect  to  which  Parliament  has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:

Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this Article, continue to exercise in matters with respect to which  Parliament  has  power  to  make  laws  for  that  State such executive power or functions as the State or officer or authority  thereof  could  exercise  immediately  before  the commencement of this Constitution.”

85. The proviso to Article 73(1) provides that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the legislature of the State has also power to make laws. Obviously, the proviso refers to  the  Concurrent  List  where  both  Parliament  and  State  have power to make laws. Executive power in reference to Concurrent List  has  been  deliberately  excluded  to  avoid  any  duplicacy  in exercise of power by two authorities. Article 73 as it stood prior to the Constitution (Seventh Amendment) Act,  1956 contained the expression after the word State “specified in Part A or Part B of the First Schedule”. Thus, the executive power was excluded of the Union only with regard to Part  A and Part  B States alone. Thus,  when the Constitution was enforced,  executive power  of Union in reference to Part C 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

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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 are mentioned  in  List  II.  When  the  President,  as  provided  by  the constitutional  scheme, is  entitled to  take executive decision on any  matter irrespective  of  the  fact  whether  such  executive decision taken by the Council of Ministers or Ministers related to matters  covered by  List  II  and  List  III,  the  executive  power  to Union through President cannot be confined to List II. Overriding power  to  the  Union  even  on  the  executive  matters  has  to  be conceded to be there as per constitutional scheme. It is another matter that for exercise of executive powers by the Union through the  President  and  by  the  Council  of  Ministers,  headed  by  the Chief Minister of NCTD, the Constitution itself indicates a scheme which  advances  the  constitutional  objectives  and  provide  a mechanism for exercise of executive powers, which aspect shall be,  however, further  elaborated while considering clause (4)  of Article 239-AA. Legislative power of the Union is coextensive with its executive power in relation to NCT is further indicated by the provisions of the Government of National Capital Territory of Delhi Act,  1991.  The  insertion  of  Article  239-AA by  the  Constitution Sixty-ninth Amendment has been followed by enactment of  the Government of National Capital Territory of Delhi Act, 1991 which Act was enacted by Parliament in exercise of power under Article 239-AA(7)(a)  of  the  Constitution.  Section  49  of  the  Act,  1991 provides as follows:

“49.  Relation of Lieutenant Governor and his Ministers to  President.—Notwithstanding  anything  in  this  Act,  the Lieutenant Governor and his Council  of  Ministers shall  be under the general control of, and comply with such particular directions, if any, as may from time to time be given by the President.”

86.  Legislative power of the Union is exercised by the President as per the constitutional scheme and Section 49 itself indicates that Parliament clearly envisaged the Council of Ministers and the Lieutenant Governor shall  be under the general  control  of,  and comply  with  such  particular  directions  issued  by  the  President from time to time. The power of the President to issue direction is

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not  limited  in  any  manner  so  as  to  put  any  restriction  on  the executive power of the Union.

87.  The President further is empowered under Section 44 of the 1991  Act  to  make  rules  for  the  allocation  of  business  to  the Ministers  insofar  as  it  is  business  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  of  Delhi  is  concerned,  that  has  been

recognised,  which  is  in  conformity  with  the  other  two  opinions,  the

aspect  of  executive  power  of  the  Delhi  Government  has  not  been

elaborated.  Instead, there is a detailed discussion on the construction of

the proviso to Article 239AA(4).  As we have seen, clause (4) deals with

the executive power of  the Council  of  Ministers of  GNCTD.   Proviso

thereto deals with the situation where there would be a difference of

opinion  between  the  Lieutenant  Governor  and  his  Ministers  on  any

matter.  It provides that in such an eventuality the Lieutenant Governor is

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supposed  to  refer  the  matter  to  the  President  for  decision  and  act

according  to  the  decision  given  thereon  by  the  President.   It  gives

supremacy  to  the  President  in  the  matter  of  executive  decisions.

Chandrachud, J. has noted that NCTD continues to be a Union Territory

and the Union Government has a special interest in the administration of

its affairs, which stands exemplified by the provisions of Article 239 and

Section  49  of  the  GNCTD  Act.   Therefore,  the  provision  to  Article

239AA(4) must be given an interpretation which is marked with a sense

of  fine  constitutional  balance.   The  balance  which  is  drawn  must

preserve the vital interest of the Union Government in the governance of

the National Capital while supporting the legitimacy and constitutional

status of the Council of Minister, which owes collective responsibility to

the Legislative Assembly and which, in its capacity of the executive arm

of the Government, tenders aid and advise to the Lieutenant Governor

under a cabinet form of governance.  According to the learned Judge,

three lines of reasoning emerge in this behalf which are mentioned in

the opinion.  The first line of interpretation would have the Court interpret

the expression ‘difference of opinion between the Lieutenant Governor

and his Council of Ministers on any of the matter’ without reservation or

qualification, which would be a purely literal or textual construction.  In

this  sense  ‘any  matter’  would  mean  any  matter  without  restriction.

Second interpretation would be to read the aforesaid expression to be

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read and confined to specific categories.  Third interpretation has two

facets.  As per the first facet, a reference can be made to the President

only  after  the  Lieutenant  Governor  has  made  an  effort  to  resolve  a

difference  with  a  Minister  or  with  Council  of  Ministers  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 repugnancy mentioned in Article 254 of the Constitution are

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discussed.  Discussion thereafter would be of some relevance and is,

therefore, reproduced below, verbatim:

"138...The principle of repugnancy which Article 254 recognises between  the  Union  and  State  legislation  on  matters  in  the Concurrent List is extended by Article 239-AA [(3)(b) and (3)(c)], both with reference to State and Concurrent List subjects for NCT. Moreover, certain subjects have been expressly carved out from the ambit of the legislative authority of the Legislative Assembly and  vested  exclusively  in  Parliament.  Executive  powers  of  the Government  of  NCT being coextensive with  legislative powers, the aid and advice which is tendered to the Lieutenant Governor by the Council of Ministers is confined to those areas which do not lie  outside  the  purview of  legislative  powers.  These  provisions demonstrate that while adopting the institutions of a Cabinet form of Government, the Constitution has, for NCT, curtailed the ambit of the legislative and executive powers, consistent with its status as a Union Territory.

139.  The exercise of the constituent power to introduce Article 239-AA  was  cognizant  of  the  necessity  to  protect  national interests inherent in the governance of a National Capital. A sense of permanence and stability was sought  to be attributed to the arrangements  made  for  governing  Delhi  by  bringing  in  a constitutional  amendment.  Both  in  terms  of  the  reach  of  the legislative power, as well as in relation to the exercise of executive power, the special constitutional arrangements for Delhi recognise that  the  governance  of  Delhi  implicates  a  sense  of  national interest.  When  matters  of  national  interest  arise,  they  would predicate  a  predominant  role  for  institutions  of  national governance.

140.   Consistent  with  the need to preserve national  interest,  it would not be appropriate to restrict  the ambit of  the proviso to Article  239-AA(4)  to  situations  where  the  action  of  the Government is ultra vires the limits of its executive powers. This becomes evident on a construction of the provisions of Section 41(1)(i)  and  Section  44(1)(a)  of  the GNCTD Act.  Clause  (i)  of Section  41(1)  enables  the  Lieutenant  Governor  to  act  in  his discretion  on  a  matter  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.  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).

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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 preserve the national concerns underlying the conferment of such a power, and second, the exercise of the power  under  the  proviso  must  not  destroy  the  essential democratic  values  recognised  in  Article  239-AA.  Thus,  it  is necessary to lay down the steps which need to be adopted before recourse  is  taken  to  the  proviso.  The  Transaction  of  Business Rules indicate in sufficiently elaborate terms that when there is a difference  of  opinion  between  the  Lieutenant  Governor  and  a Minister, primarily, an effort should be made to resolve it by mutual discussion. If this process does not yield a satisfactory result, the matter can be referred to the Council of Ministers with whom an attempt is made to seek a satisfactory solution. It is when these two  stages  are  crossed  and  a  difference  still  persists  that  the proviso can be taken recourse to by referring the matter to the President. These stages which are enunciated in the Transaction of Business Rules must be read in conjunction with the authority conferred by Section 44 of the GNCTD Act which was enacted in pursuance of Article 239-AA(7). Hence the proviso must be read in  conjunction  with  the  law  enacted  by  Parliament  and  the Transaction of  Business Rules made by the President,  to  give clarity  to  the  operating  procedure  for  invoking  the  proviso. Moreover,  once  a  reference  is  made  to  the  President,  the Lieutenant Governor is bound by the decision of the President. The Lieutenant Governor has the authority to take action which is warranted  by  emergent  circumstances  until  the  President  has taken a decision. But before recourse is taken to the proviso, the Lieutenant Governor must make every effort with the Minister or, as the case may be, the Council of Ministers to resolve a matter of difference.  The nature  of  the  differences  which  may warrant  a reference to the President cannot be exhaustively catalogued. But it would be appropriate to construe the proviso as a protector of national  concerns  in  regard  to  governance  of  the  NCT.  The

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Lieutenant  Governor  is  a  watchdog  to  protect  them.  The Lieutenant  Governor  may,  for  instance,  be  justified  in  seeking recourse  to  the  proviso  where  the  executive  act  of  the Government  of  the  NCT  is  likely  to  impede  or  prejudice  the exercise of the executive power of the Union Government. The Lieutenant Governor may similarly consider it necessary to invoke the  proviso  to  ensure  compliance  with  the  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 must also be conscious of the fact that unrestrained recourse to the proviso would virtually transfer  the  administration  of  the  affairs  of  the  NCT  from  its Government to the Centre. If the expression “any matter” were to be  read  so  broadly  as  to  comprehend  “every  matter”,  the operation  of  the  proviso  would  transfer  decision-making  away from the Government  of  the NCT to the Centre.  If  the proviso were  to  be  so  read,  it  would  result  in  a  situation  where  the President would deal  with a reference on every matter, leaving nothing but the husk to the administration of the Union Territory. Article 239-AB makes a provision where there is a failure of the constitutional  machinery  in  the  Union  Territory.  The  proviso  to Article 239-AA(4) does not deal with that situation. Hence, in the application of the proviso it would be necessary to bear in mind that  the Council  of  Ministers for  the NCT has a constitutionally recognised function, as does the Legislative Assembly to whom the Council is collectively responsible. The role of the Lieutenant Governor  is  not  to  supplant  this  constitutional  structure  but  to make it workable in order to ensure that concerns of a national character which have an innate bearing on the status of Delhi as a national Capital are not bypassed. If these fundamental precepts are borne in mind, the operation of the proviso should pose no difficulty and the intervention of the President could be invoked in

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appropriate cases where a matter fundamental to the governance to the Union Territory is involved.”

61) Insofar as executive power of the GNCTD is concerned, we find

that  the majority judgment authored by Dipak Misra,  CJI  (as he then

was) clearly holds that it is to the exclusion of the executive power of the

Central  Government.   That  is  the  effect  of  the  combined  reading  of

paragraphs 214 to 218 of the Constitution judgment.  The argument of

the  respondents  to  the  contrary  is  an  attempt  to  reargue  the  case.

However, judicial  discipline prevents us from embarking upon such a

journey.  In fact, it is for this reason the learned counsel appearing for

the Union of  India  have also argued that  the majority  opinion is  not

correct  and  matter  needs  to  be  referred  to  the  larger  Bench  for

reconsideration.   This  course  of  action  would  also  not  be  advisable

having regard to the provisions of Article 145(3) of the Constitution.  We,

thus, have to proceed on the premise 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

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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 appeals.  Seven out of

these nine appeals have been filed by the  GNCTD and remaining two

have been filed by the Union of India. Eight out of these nine appeals

are Civil Appeals and one appeal filed by the Union of India is a Criminal

Appeal.  All  the  appeals  are  against  the  impugned order  of  the  High

Court of Delhi dated August 04, 2016.  The issues which are raised in

different appeals are summed up below:

64) The  first issue is whether the exclusion of “Services” relatable to

Entry 41  of  List  II  of  the  Seventh  Schedule  from the  legislative  and

executive  domain  of  the  NCT  of  Delhi,  vide  Notification  of  the

Government  of  India  dated  May  21,  2015,   is  unconstitutional  and

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illegal?   

65) The second issue is whether the exclusion of the jurisdiction of the

Anti-Corruption Branch (ACB) of the NCT of Delhi to investigate offences

committed under the Prevention of Corruption Act, 1987 by the officials

of  Central  Government and limiting the jurisdiction of  the ACB to the

employees of GNCTD alone is legal?  (These two issues arise in Civil

Appeal No. 2357 of 2017).

66) 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?

67) The fourth issue, which is raised in Civil Appeal 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 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,

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2001, without obtaining the concurrence of the Lieutenant Governor are

valid?

68) 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 provisions of Indian Stamp Act, 1899?

69) The sixth issue, which is the subject matter of Criminal Appeal No.

277 of 2018, pertains to the appointment of Special Public 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

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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-extensive executive

power  in  respect  of  Entry 41  rests  with  GNCTD.   Mr. Chidambaram

argued that Entry 41 has two components, namely, State public service

and State Public Service Commission.  Since there is no State Public

Service Commission in Delhi, insofar as service personnel in Delhi are

concerned, that would come within the expression ‘State public services’

and it is the GNCTD which would exercise its administrative power over

such employees.

73) Learned  counsel  drew  attention  of  this  Court  to  the  earlier

Notification  dated  September  24,  1998  and  submitted  that  the  said

Notification was perfectly in order.  We reproduce the same hereunder:

" MINISTRY OF HOME AFFAIRS

NOTIFICATION New Delhi, the 24th September, 1998

S.O. 853 (E). – In pursuance of the powers conferred under clause (1) of article 239 of the Constitution, the President hereby directs  that  subject  to  his  control  and  until  further  orders,  the Lieutenant  Governor  of  the  National  Capital  Territory  of  Delhi, shall in respect of matters connected with ‘Public Order’, ‘Police’ and ‘Services’ exercise the powers and discharge the functions of the Central Government, to the extent delegated from time to time

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to him by the President, in consultation with the Chief Minister of the  National  Capital  Territory  of  Delhi  except  in  those  cases where, for reasons be recorded in writing, he does not consider it expedient to do so.

[F.No. U-11030/2/98-UTL(288)] P.K. JALALI, Jt. Secy.”

However, this was superseded vide impugned Notification dated

May 21, 2015 which gives power to the Lieutenant Governor in respect

of  ‘Services’  as well,  in addition to  ‘Public Order’,  ‘Police’  and  ‘Land’,

which  is  contrary  to  the  scheme  contained  in  Article  239AA of  the

Constitution,  as interpreted by this  Court.   This  Notification reads as

under:

" MINISTRY OF HOME AFFAIRS

NOTIFICATION New Delhi, the 21st May, 2015

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  thinks  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 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

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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 DANICS and DANIPS are common services catering to the requirement of the Union Territories of Daman & Diu, Dadra Nagar Haveli, Andaman and Nicobar Islands, Lakshadweep including the National Capital Territory  of  Delhi  which  is  also  administered  by  the  Central Government through the Ministry of Home Affairs. As such, it is clear that the National Capital Territory of Delhi does not have its own  State  Public  Services.  Thus,  ‘Services’  will  fall  within  this category.

And  whereas  it  is  well  established  that  where  there  is  no legislative  power,  there  is  no  executive  power  since  executive power is co-extensive with legislative power.

And whereas matters relating to Entries 1, 2 & 18 of the State List being ‘Public Order’, ‘Police’ and ‘Land’ respectively and Entries 64, 65 & 66 of that list in so far as they relate to Entries 1, 2 & 18 as also ‘Services’ fall outside the purview of Legislative Assembly of  the  National  Capital  Territory  of  Delhi  and consequently  the Government  of  NCT of  Delhi  will  have  no  executive  power  in relation  to  the  above  and  further  that  power  in  relation  to  the aforesaid  subjects  vests  exclusively  in  the  President  or  his delegate i.e. the Lieutenant Governor of Delhi.  

Now, therefore,  in  accordance with  the provisions  contained in article  239  and  sub-clause  (a)  of  clause  (3)  of  239AA,  the President hereby directs that -  

“(i) subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect  of  matters  connected with  ‘Public  Order’,  ‘Police’,

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‘Land’  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(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 Territories and Delhi is only one of them.  It is

also  not  in  dispute  that  this  cadre  is  administered  by  the  Central

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Government through the Ministry of Home Affairs.  The Notification also

refers  to  DANICS  and  DANIPS,  which  are  again  common  services

catering to the requirement of various Union Territories, including NCTD.

These  services  are  also  administered  by  the  Central  Government

through the Ministry of  Home Affairs.   As is  clear  from the aforesaid

Notification,  the  aforesaid  reasons  are  given  therein  thereby  making

these services subject to the control and further orders of the Lieutenant

Governor of NCTD.

75) Submission of Mr. Chidambaram, however, is that being common

cadres,  which apply to  all  Union Territories,  undoubtedly, the Central

Government has the power to allocate the personnel to NCTD as well.

Likewise,  it  is  also  within  the  powers  of  the  Central  Government  to

transfer such personnel from one Union Territory to other, which would

mean even from NCTD to any other Union Territory.  According to him,

that was the only function of the Joint Cadre Authority under the All India

Services  (Joint  Cadre)  Rules,  1972  inasmuch  as  Rule  5(1)  therein

stipulates to: “determine the names of the members of All India Services

who may  be  required  to  serve  from time to  time in  connection  with

affairs of each of the constituent States and the period or purpose for

which their services shall be available to that Government”.  However,

submits  the  counsel,  once  particular  officers  are  allocated  to  NCTD,

during their tenure in NCTD, it is within the powers of the GNCTD to

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assign them to particular departments.  In support of this submission, he

referred to the following Rules:

"The All-India Services (Joint Cadre) Rules, 1972

2. Definitions – In these rules, unless the context other requires, –  (a).   “Joint  Cadre  Authority”  means  the  Committee  of Representatives referred to in rule 4.

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4.  Committee of representatives -

(1)   There  shall  be  a  Committee  consisting  of  a representative  of  each  of  the  Governments  of  the Constituent States, to be called the Joint Cadre Authority.

(2)   The  representatives  of  the  Governments  of  the Constituent  States may either  be members of  an All-India Service  or  Ministers  in  the  Council  of  Ministers  of  the Constituent States, as may be specified by the Governments of 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.

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(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 months.

(c)(iii)   An  officer  may  be  transferred  before  the  minimum prescribed tenure only on the recommendation of a Committee on Minimum Tenure as specified in the Schedule annexed to these rules.”

xx xx xx

11A.   Authority  to  exercise  certain  powers  in  respect  of members of the Service serving in connection with the affairs of the States constituting a Joint Cadre:-   the powers of the State Government under the second proviso to sub-rule (2) of rule 4, under clause (I) of sub-rule (2) of rule 6 and under Rules 7, 10 and  11,  in  relation  to  the  members  of  the  Service  serving  in connection with the affairs of any of the Constituent States shall be exercised by the Government of that State.”

Submission was that as per the aforesaid Rules, posting is done

by  the  State  Government  once  the  Central  Government  allocates

particular  employees  to  a  particular  State  and  since  this  principle  of

federalism is accepted and given imprimatur by the Constitution Bench

in case of NCTD as well, the aforesaid principle shall equally apply.

76) As per him, the complete scheme which becomes clear from the

above is that while it is the Joint Cadre Authority where Delhi has its own

separate representative which allocates officers of the AGMUT Cadre to

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NCT  of  Delhi,  the  post  to  which  such  officer  is  posted/deputed  is

determined by the GNCTD. Consequently, if within the GNCTD, the said

officer has to be posted from one post to the another, it is the GNCTD

alone  which  has  the  powers  under  the  Service  Rules.  This  is  in

consonance with the position that  prevails  in  the states of  Arunachal

Pradesh, Mizoram and Goa which are also members of the Joint Cadre

in the AGMUT Cadre and who like the NCTD and unlike other Union

Territories have a representative in the Joint Cadre Authority.

77) Likewise, insofar as DANICS is concerned, the submission is that

under the Delhi, Andaman & Nicobar Islands, Lakshasweep, Daman &

Diu  and  Dadra  &  Nagar  Haveli  Civil  Services  Rules,  2003,  same

consequence follows.  Following Rules were referred to:

“11.  Appointment to the Service -  All appointment to the Service shall be made by the Appointing Authority  to  the  Junior  Administrative  Grade-I  or  Junior Administrative Grade-II or Selection Grade or Entry Grade of the Service  and  not  against  any  specific  post  included  in  the Service.

12. Posting - 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’

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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’  and  ‘State  Public  Service  Commission’.

Indubitably, there was no Public  Service Commission in NCTD.  The

other  part  refers  to  State  Public  Services  whereas  the  services  in

respect  of  which  the  impugned  Notification  dated  May  21,  2015  is

issued, pertains to other All  India Services or combined/joint cadre of

Union Territories which are not State public services.  He also argued

that certain matters fall within the discretionary powers of the Lieutenant

Governor where he does not have to act on the aid and advise of the

Council of Ministers of GNCTD.  This was such a discretionary matter

and, therefore, fell outside NCTD.  In the alternative, he submitted that

even if  the Lieutenant  Governor  has no discretion,  since the subject

matter is not covered by Entry 41 of List II, the Lieutenant Governor is

not supposed to act on the aid and advise of the Central Government

and not that of GNCTD.  Focusing on the aspect of discretionary power

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of the Lieutenant Governor, Mr. Sundaram referred to Section 41 of the

GNCTD  Act  which  stipulates  the  matters  wherein  the  Lieutenant

Governor can act in his own discretion.  This provision reads as under:

"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 functions.

(2)  If any question arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any  law  required  to  act  in  his  discretion,  the  decision  of  the Lieutenant Governor thereon shall be final.

(3)  If any questions arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any  law  required  by  any  law  to  exercise  any  judicial  or quasi-judicial  functions, the decision of the Lieutenant Governor thereon shall be final.”

80) According  to  Mr.  Sundaram,  discretion  was  conferred  upon the

Lieutenant Governor in respect of this subject matter by virtue of clause

(i) of sub-section (1) of Section 41 as the matter falls outside the purview

of the powers conferred 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:

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"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 Service Commission  unless  authorised  to  do  so  by  the  Central Government.

(3)   All  correspondence with Union Public  Service Commission and the Central Government regarding recruitment and conditions of service of persons serving in connection with the administration of  National  Capital  Territory  shall  be  conducted  by  the  Chief Secretary or Secretary of  the Department concerned under the direction of the Lieutenant Governor.”

81) Insofar as Notification dated September 24, 1998 is concerned, Mr.

Sundaram pointed out that this Notification was issued under Article 239

of the Constitution.  In any case, this was also issued by the President

and was almost to the same effect as Notification dated May 21, 2015,

inasmuch as here also the President had delegated the powers to the

Lieutenant  Governor  in  respect  of  ‘Public  order’,  ‘Police’  as  well  as

‘Services’. Therefore, all these subjects were put at par.  The only other

requirement  specified in  the said Notification was that  the Lieutenant

Governor was to exercise the powers and discharge the functions of the

Central  Government  ‘in  consultation  with  the  Chief  Minister  of  the

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NCTD’.  It was only a ‘consultation’ which would not mean ‘concurrence’.

The  Notification  dated  May  21,  2015  brought  about  change  only  in

respect of  such consultative process,  i.e.  ‘consultation’  with the Chief

Minister,  as  being  done  away  with.   This  became  necessitated,

according  to  him,  because  of  the  problems  which  the  Lieutenant

Governor was facing even in undertaking consultations with the Chief

Minister.   Therefore,  now  it  is  entirely  within  the  discretion  of  the

Lieutenant Governor to have the views of the Chief Minister or not.  To

that extent this Notification is only clarification of the earlier Notification

dated September 24, 1998 and in substance the legal implications of

this Notification were exactly the same as Notification dated September

24, 1998.  Learned counsel also argued that the Constitution provides

for services of the States and services of the Union.  All Union Territories

services are services of the Union, as held in a recent judgment of this

Court in  Bir Singh  v.  Delhi Jal Board and Others4.  For example, in

Delhi, IAS, DANICS & DASS cadre, as also teachers and doctors, are

services of the Union and the recruitment rules have been framed with

the approval of the President or of Lieutenant Governor 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 (2018) 10 SCC 312

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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 done by the Secretary (Services); for Grades II and I, the

transfers and postings are done by the Chief  Secretary.  For greater

transparency,  a  Civil  Services  Board  can  be  formed  which  can  be

headed by the Secretary (Services) for Grades IV and III officials; by the

Chief Secretary for Grades II and I level officers.  The Board can decide

on the transfer  and postings of  these DASS cadre officers.   He also

pointed out that for IAS officers, a Civil Services Board headed by the

Chief Secretary already exists and the recommendations of the same

are being sent to the Lieutenant Governor.  Similar Board can also be

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formed for DANICS officers.  His suggestion was that similar mechanism

of  Services  Boards  can  be  made  for  other  departments  such  as

Education and Health.  Likewise, the services of the Union Territories

being under the Ministry of Home Affairs, an advisory can be given to

that Ministry to make these guidelines under the Transaction of Business

Rules and to provide consultation by the Lieutenant Governor with the

Chief Minister up to certain level of officers.

83) In  rejoinder,  Mr.  Chidambaram  submitted  that  the  aforesaid

argument of the Union ignores the judgment of this Court in  Union of

India v. Prem Kumar Jain and Others5 wherein a four Judge Bench of

this Court held that the ‘State’ includes a Union Territory for the purposes

of Article 312 of the Constitution in the following manner:

"8.  It follows therefore that, as and from November 1, 1956, when the Constitution (Seventh Amendment) Act, 1956, came into force, the President had the power to adapt the laws for the purpose of bringing the provisions of any law in force in India into accord with the provisions of the Constitution. It was under that power that the President  issued  the  Adaptation  of  Laws  (No.  1)  Order,  1956, which,  as  has  been  shown,  substituted  a  new  clause  (58)  in Section 3 of the General clauses Act providing, inter alia, that the expression  “State”  shall,  as  respects  any  period  after  the commencement  of  the  Constitution  (Seventh  Amendment)  Act, 1956,  mean  “a State specified in the First  Schedule to the Constitution and shall include a Union Territory”. It cannot be said with any justification that there was anything repugnant in the subject or context to make that definition inapplicable. By virtue of Article  372A(1)  of  the Constitution,  it  was  that  definition 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

5 (1976) 3 SCC 743

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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 are undisputed:

(a) The  matter  pertains  to  the  ‘Services’  which  consists  of  Indian

Administrative Service, Indian Police Service.  Likewise, DANICS and

DANIPS are common services catering to the requirement of  various

Union Territories including NCTD.   

(b) These are All India Services and the cadre in question is Union

Territory Cadre which is common of all Union Territory and Delhi is one

of them.  Therefore the Cadre does not pertain to GNCTD itself.  This

cadre is  administered by the Central  Government  through Ministry of

Home Affairs.   

(c) There  is  no  dispute  that  insofar  as  allocation  of  personnel

belonging  to  the  aforesaid  services  is  concerned,  it  is  the  Central

94

Government thorough Ministry of Home Affairs which has to pass the

necessary  orders.   Similarly,  Central  Government  is  empowered  to

transfer such personnel from one Union Territory to other.

85) The  fulcrum of  dispute  pertains  to  the  control  of  GNCTD over

these personnel after they are allocated to the NCTD.  As per GNCTD, it

has the power to post such work force at different places and the LG is

to  act  on  the  aid  and  advice  of  the  Council  of  Ministers.   For  this

purpose, the executive power is sought to be drawn by virtue of Entry 41

of List II in the Seventh Schedule of the Constitution.  The submission on

behalf of the Union of India is that it comes within the discretionary powers of

the  LG  as  the  subject  matter  is  not  covered  by  Entry  41  of  List  II  and,

therefore, by virtue of Section 41 of GNCTD Act, the LG is empowered to

act in his discretion in such a matter.   

86) In  the  aforesaid  backdrop,  the  first  and  foremost  question  is

whether  ‘services’  fall  outside  the  purview of  legislative  assembly  of

NCTD? To put it otherwise, whether Entry 41 of List II does not cover the

subject matter? Entry 41 of List II deals with ‘State Public Services’ and

‘State Public Service Commission’.   It  is undisputed that State Public

Service Commission does not exist in NCTD.  When we are dealing with

All  India  Services and DHANICS Services etc.,  it  is  also doubtful  to

mention it as State Public Service.

87) The further issue, however, is to see as to whether it is within the

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powers  of  GNCTD to  assign  such  officers  to  particular  departments,

once they are allocated to the NCTD by the joint cadre authority. As per

Rule 2(c) of Indian Administrative Services (Cardre) Rules, 1954, State

includes 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 Delhi, the GNCTD should not have any power to deal

with such employees, in view of C.B. Judgment.  In such a scenario, and

96

to avoid any conflict of exercise of powers between the LG on the one

hand (as representative of the Central Government) and the Council of

Ministers with Chief Minister as Head on the other hand, we are of the

opinion that for the smooth functioning of the system, it is necessary to

carve  out  a  just  and  fair  mechanism.  Therefore,  we  are  inclined  to

accept the suggestion of Mr. Sundaram in this behalf as recorded above.

In this behalf, we reiterate the position as under:

90) 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 done by the Secretary (Services); for Grades II and I, the

transfers  and  postings  are  done by the  Chief  Secretary.  For  greater

transparency,  a  Civil  Services  Board  can  be  formed  which  can  be

headed by the Secretary (Services) for Grades IV and III officials; by the

Chief Secretary for Grades II and I level officers.  The Board can decide

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on the transfer  and postings of  these DASS cadre officers.   He also

pointed out that for IAS officers, a Civil Services Board headed by the

Chief Secretary already exists and the recommendations of the same

are being sent to the Lieutenant Governor.  Similar Board can also be

formed for DANICS officers.  His suggestion was that similar mechanism

of  Services  Boards  can  be  made  for  other  departments  such  as

Education and Health.  Likewise, the services of the Union Territories

being under the Ministry of Home Affairs, an advisory can be given to

that Ministry to make these guidelines under the Transaction of Business

Rules and to provide consultation by the Lieutenant Governor with the

Chief Minister up to certain level of officers.  

91) 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.  

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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 Section 2(s) of Cr.P.C. for the purpose of certain corruption related

offences under the IPC and the Prevention of Corruption Act, 1947. As

per this notification, the ACB had “jurisdiction all over the whole of Union

Territory of Delhi”.  In supersession of this notification vide Notification

dated November 08, 1993, the GNCTD through the Lieutenant Governor

declared the ACB of NCTD at Old Secretariat as a police station under

Section  2(s)  of  the  Cr.P.C.  for  offences  under  the  Prevention  of

Corruption Act, 1988.  Thereafter, two Notifications dated July 23, 2014

and May 21, 2015 came to be issued by the Central Government as per

which the jurisdiction of ACB is limited to the employees of GNCTD only.

These Notifications read as under:

"Notification dated July 23, 2014

THE GAZETTE OF INDIA EXTRAORDINARY

PART II – SECTION 3 – SUB SECTION (II) PUBLISHED BY AUTHORITY

NEW DELHI, FRIDAY, JULY 25, 2014/SHRAVANA 3, 1936 MINISTRY OF HOME AFFAIRS

NOTIFICATION New Delhi, the 23rd July, 2014

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S.O.  1896(E)  –  In  pursuance  of  Section  21  of  the  General Clauses  Act,  1897  (10  of  1897)  read  with  the  Government  of India, Ministry of Home Affairs Notification Number S.O. 183(E), dated the 20th March, 1974 and having regard to the guidelines issued by the Central Vigilance Commission over the jurisdiction of  the  Central  Bureau  of  Investigation  and  the  Anti-Corruption Branch,  Government  of  National  Capital  Territory  of  Delhi,  the Central Government hereby declares that the notification number F.1/21/92-Home  (P)  Estt.1750,  dated  the  8th November,  1993 issued by the Lieutenant Governor of the National Capital Territory of Delhi shall be applicable to the officers and employees of that Government  only  and  for  that  purpose  amends  the  said notification, namely:-

In the said notification, after the existing Paragraph, the following Paragraph shall be inserted, namely:-

“2.   This  notification  shall  apply  to  the  officers  and employees of the Government of National Capital Territory of Delhi.”

[F.no. 14036/4/2014-Delhi-I (Pt.File)] I.S. Chahal, Jt. Secretary

xx xx xx

Notification dated May 21, 2015

THE GAZETTE OF INDIA EXTRAORDINARY

PART II – SECTION 3 – SUB SECTION (II) PUBLISHED BY AUTHORITY

NEW DELHI, THURSDAY, MAY 21, 2015/ VAISAKHA 31, 1937

MINISTRY OF HOME AFFAIRS NOTIFICATION

New Delhi, the 21st May, 2015

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.

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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 whereas sub-clause (a) of clause (3) of Article 239AA also qualifies  the  matters  enumerated  in  the  State  List  or  in  the Concurrent List insofar 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 DANICS and DANIPS are common services catering to the requirement of the Union  Territories  of  Daman  and  Diu,  Dadra  Nagar  Haveli, Andaman  and  Nicobar  Islands,  Lakshadweep  including  the National Capital Territory of Delhi which is also administered by the Central Government through the Minister of Home Affairs.  As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services.  Thus, ‘Services’ will fall within this category.

And  whereas  it  is  well  established  that  where  there  is  no legislative  power,  there  is  no  executive  power  since  executive power is co-extensive with legislative power.

And whereas matters relating to Entries 1, 2 & 18 of the State List being ‘Public Order’, ‘Police’ and ‘Land’ respectively and Entries 64, 65 & 66 of that list insofar as they relate to Entries 1, 2 & 18 as also ‘Services’ fall outside the purview of Legislative Assembly of  the  National  Capital  Territory  of  Delhi  and consequently  the Govt. of Nct of Delhi will have no executive power in relation to the  above  and  further  that  power  in  relation  to  the  aforesaid

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subjects vests exclusively in the President or his delegate, i.e. the Lieutenant Governor of Delhi.

Now, therefore,  in  accordance with  the provisions  contained in Article 239 and sub-clause (a) of clause (3) of Article 239AA, the President hereby directs that –  

(i)  Subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall, in respect  of  matters  connected with  ‘Public  Order’,  ‘Police’, ‘Land’  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  (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. 14036/4/2014-Delhi-I (PartFile)] RAKESH SINGH, Jt. Secy.”

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94) The validity of these Notifications is challenged on three grounds:

First, post the 69th Amendment, the Central Government is not the “State

Government” within the meaning of Section 2(s) of Cr.P.C. Second, the

impugned  notifications  create  a  class  of  offenders  immune  from the

jurisdiction of  ACB, even though they are accused of  committing the

same offence as other public servants and in the same territory. Such

classification is  not  permissible  under  the Constitution and has been

held  to  violate  Article  14.  Third,  the  notifications  have  the  effect  of

amending various provisions of the Prevention of Corruption Act, 1988

including the definition of “Public Servant”, which is not permissible.  

95) It  is  argued that  power  under  Section 2(s)  of  Cr.P.C.  relates to

‘Criminal  Procedure’ and  not  ‘Police’.  Section  2(s)  of  the  Cr.P.C.

empowers the State Government to notify a Police Station. However, the

impugned  notifications  are  issued  by  the  Central  Government.   It  is

argued that post the 69th Amendment, the Central Government is not the

State Government for the purpose of exercising the powers u/s. 2(s) of

the Cr.P.C.  It is submitted that though a cursory reading of the definition

of  the  ‘State  Government’  contained  in  Section  3(6)  of  the  General

Clauses  Act,  1897  (GC  Act)  includes  the  Central  Government  and

makes it  a  State  Government  in  respect  of  Delhi  for  the purpose of

exercising power under Section 2(s) of the Cr.P.C., but that is not the

correct legal position.  The contention is that Section 3(60) of the GC Act

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containing the definition of the ‘State Government’ was enacted prior to

the 69th Amendment to the Constitution. Article 239AA and the cognate

Articles were inserted/amended by the said Constitutional amendment.

Pursuant  to  the  aforesaid  amendment,  the  Parliament  enacted  the

GNCTD Act. The said amendment and the said Act came in force on

February 01, 1992. In view of the aforesaid change in the Constitution

and enactment of the GNCTD Act, the Central Government is not the

State  Government  in  respect  of  territory  of  Delhi  for  the  purpose  of

Section 2(s) of Cr.P.C. The power to issue notification under Section 2(s)

is now vested with the Delhi 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.

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97) To support the aforesaid plea, certain judgments are relied upon.

In  Ukha Kolhe v. State of Maharashtra6, 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 the Third List of the  Seventh  Schedule  to  the  Constitution  and  the  Union Parliament  and  the  State  Legislature  have  concurrent authority in respect of these matters. The expression “criminal procedure" in  the  legislative  entry  includes  investigation  of offences, and ss. 129A and 129B must be regarded as enacted in exercise of the power conferred by Entries 2 and 12 in the Third List….

(emphasis supplied)”

Judgments of some High Courts are also cited.

98) Arguments on this issue, on behalf of the Union, were addressed

by Mr. Rakesh Dwivedi, learned senior counsel.  His submission was

that the entire matter has to be looked into from a historical perspective.

He,  thus,  traced  the  development  of  establishment  of  ACB  of  Delhi

Police.   Historically,  ACB  of  Delhi  Police   appears  to  have  been

constituted  in  the  year  1957.   On  December  6,  1963,  the  Chief

Commissioner Delhi placed it under the control of Chief Secretary, Delhi

Administration.  On  May 24, 1965, the Superintendent of Police, ACB

was declared to be the head and Drawing and Disbursing Officer (DDO).

Thereafter, exercising power under Section 5(1), first proviso of PC Act,

the administrator of UT, Delhi authorised the inspectors of police serving

in ACB to investigate offences under the said Act in the whole of the

6 (1964) 1 SCR 926 : AIR 1963 SC 1531

105

territory.  This was reiterated by the order of the Administrator issued on

May 19, 1970.  Additionally, with respect to Section 161, 165 and 165A

of  IPC  power  of  arrest  without  warrant  was  given.   During  the

aforementioned period, the police force was governed by the Police Act,

1861, Section 40 of the Punjab Laws Act, 1872 as in force in Delhi and

the  Bombay  Police  Act,  1951  as  in  force  in  Delhi.   The  criminal

procedure was governed by the Criminal Procedure Code, 1898.  The

Criminal  Procedure  Code,  1973  came into  force  w.e.f.  April  1,  1974

though  it  was  gazetted  on  January  25,  1974.   In  this  context,  the

President of India issued the notification dated March 20, 1974.  A series

of  notifications,  beginning  from  the  year  1974,  in  respect  of

establishment  and  functioning  of  the  ACB have  been  issued  by  the

President  and  Administrator/LG  in  exercise  of  powers  under  Article

239(1) of the Constitution and Section 2(s) Cr.P.C., 1973 read with Delhi

Police Act.  Significantly, notifications issued prior to July 23, 2014 have

not  been challenged.   Some of  these notifications were issued even

before  the  insertion  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

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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 Rules of Procedure for inquiries and investigation

by ACB were revised on February 17, 1977.  Rule 2 declared that all the

Rules and Regulations applicable to the Delhi Police are also applicable

to the ACB.  Rule 3 prescribed the functions of ACB.  Rule 5 mentioned

that  ACB  would  be  under  the  direct  charge  of  a  Superintendent  of

Police.  Rule 15(v) provides that ordinarily no inquiries should be made

by ACB in case of  Central  Government  employees.   The Rules also

provided for prosecution sections.  At this stage, Parliament enacted the

Delhi Police Act, 1978 to amend and consolidate the law relating to the

Regulation of Police in Delhi.  Section 4 vests superintendence of the

Delhi  Police  in  the  Administrator  appointed  under  Article  239  of  the

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Constitution.   It  is  he  who  appoints  the  Commissioner  of  Police,

Additional Commissioner of Police and Deputy  Commissioner of Police.

Vide Sections 10 and 11, the Commissioner of Police constitutes police

districts, police sub-divisions and specifies the police stations and their

limits and extents.  Each police station is to be under the charge of an

Inspector of Police who is appointed by the Additional Commissioner.  All

this  is  to be done subject  to the control  of  the Administrator  and his

orders.  Vide Section 15, the Commissioner of Police distributes duties

and the mode of fulfillment of their duties.  The disciplinary powers vest

with the Commissioner of Police who also makes regulations subject to

the orders of  the Administrator.  It  also covers preservation of  public

order  and  peace  through  provisions  under  Chapter  IV  and  V.  The

Administrator  can  make  rules  under  Section  147.   Section  149

contemplates  cessation  of  old  laws  regulating  police  mentioned  in

Schedule  II  but  it  preserves  the  Rules  and  Standing  Orders,

appointments made etc. insofar as they are consistent with the Act.  It

also preserves the pending investigation and legal proceedings.  Vide

Section 150 the police force functioning in Delhi was deemed to be the

police  force  constituted  under  the  Delhi  Police  Act,  1978  with

designations mentioned in Schedule III.  It is submitted by Mr. Dwivedi

that this Act has to be read along with Cr.P.C., 1973.

99) Vide notification dated August 1, 1986 issued by the Administrator

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of UT Delhi it was provided, in supersession of his previous notification

dated May 20, 1975, and August 23, 1975 and issued in exercise of

powers  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(1) of the Constitution directing that subject to his control and

until  further  orders  the LG OF NCT Delhi  shall  exercise powers and

discharge functions of the Central Government, to the extent delegated

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in respect of matters connected with ‘public order’, ‘police’ and ‘services’

in  consultation  with  Chief  Minister  except  in  those  cases  where,  for

reasons to be recorded in writing, he does not consider it expedient to

do so.

101) After  tracing  the  aforesaid  history,  Mr.  Dwivedi  submitted  that

Notification dated July 23, 2014, which is now impugned, came to be

issued  by  the  Central  Government  to  amend  the  earlier  Notification

dated  November  08,  1993  which  was  also  issued  by  the  Central

Government and that too post Article 239AA era. According to him, the

object  behind  issuing  this  Notification  is  to  implement  the  guidelines

issued by the CVC in respect of the jurisdiction of CBI and ACB.  It is

this position which is restated in another Notification dated May 21, 2015

which has also been challenged by the Delhi Government.  According to

Mr. Dwivedi, an analysis of all the notifications shows that from May 20,

1975 itself  the  ACB Delhi  administration was intended to be a police

station for investigating offences in relation to the personnel exercising

powers and functions in connection with UT Delhi. The notification dated

August 1,  1986 had also invoked powers under Government of India

notification dated March 20, 1974. Though the notifications territorially

covered the whole of UT Delhi but the context was evidently to deal with

corruption  in  the   Administration  of  UT  Delhi.   The  nomenclature

‘Anti-corruption branch,  Delhi  administration’ also indicates the same.

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The  subsequent  notification  dated  November  8,  1993  merely  made

consequential  changes  on  account  of  P.C.  Act  1988  and  change  in

status  of  administration  of  Delhi  as  NCTD.   What  was  necessarily

implicit  in  the  said  notifications  was  made  clear  by  the  subsequent

notification dated July 23, 2014 and May 21, 2015 with a view to avoid

parallel exercise of powers by CBI and ACB over officers, employees

and  functionaries  of  the  Central  Government.   This  was  also

recommended by CVC.  Here it may be noted that while CBI is a police

force created under DSPE Act 1946 and ACB is established under Delhi

Police Act 1978.  The establishment of ACB is with respect to Entry 1

and  2  List  II  of  Schedule  VII  of  the  Constitution  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.

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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 the domain of NCTD over

which  the  Parliament  and  central  executive  has  the  exclusive

jurisdiction.   It  is,  therefore,  open  to  the  Parliament  and  the  Central

Government to act in pursuance of Entries 8 and 80 of List I and provide

certain exclusive jurisdiction to CBI as regards investigation to be done

by it.

104) Mr. Dwivedi accepted that Cr.P.C. involves a field which is covered

by Entry 2 List III of Seventh Schedule.  His submission, however, is that

List III  is the concurrent field both for the Parliament and the States.

Therefore,  though  the  Legislative  Assembly  of  Delhi  has  legislative

competence  in  respect  of  matters  covered  by  Entry  2,  but  it  is  not

exclusive inasmuch as Parliament also has the legislative competence.

In fact, competence of the Delhi Assembly is subservient to legislative

competence  of  the  Parliament.   Moreover,  Parliament  had  already

exercised its legislative power by enacting Cr.P.C. comprehensively and

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exhaustively.   Therefore,  the  field  becomes  occupied.   In  such

circumstances,  the  legislative  competence  of  NCTD/Legislative

Assembly  would  stand  eroded,  if  not  denuded,  which  happens  on

account  of  Article  239AA(b)(c)  of  the  Constitution.   In  this  scenario,

argued the learned counsel, GNCTD can exercise only such executive

power as Cr.P.C. confers on it and this conferment should be specific

and express.

105) Dr. A.M.  Singhvi,  learned senior  counsel  who  appeared  for  the

intervenor/Reliance  Industries,  supported  and  added to  the  aforesaid

submissions, which would be taken note of in our discussion.

106) After considering the respective submissions, we find force in the

arguments advanced by Mr. Rakesh Dwivedi predicated on the historical

developments narrated by him, and extracted above.   We may also

emphasise that the issue is limited, viz., whether ACB is empowered to

register cases in respect of Central Government employees as well?

107) We  find  that  the  challenge  laid  by  the  appellant  to  these

Notifications is predicated on Entry 2 of List II.  Even after conferment of

the status of quasi-State upon Delhi (which though in constitutional term

remains Union Territory), Article 239AA (which gives such a status) itself

excludes Entry 2 from the domain of NCTD.  Thus, in respect of ‘Police’,

NCTD does not have either legislative or executive power.  This Court is

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required to look into the substance of such an exclusion and cannot 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  impugned

notifications,  to  the  extent  they  are  in  the  nature  of  administrative

directions to the Police, are directly relatable to Entry 2 of List II and as

such squarely within the competent of the Government of India.  Even to

the  extent  the  executive  power  being  exercised  qua the  Police  may

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correspond to the functions of the Police as set out in the Cr.P.C., the

nature of the power would not for this reason stand altered or relatable

to Entry 2 of List III.   It  is not metaphorsis from List II  to List III.   In

substance,  issuance  of  an  administrative/executive  direction  to  the

Police is an exercise of executive power relatable to the legislative entry

pertain to Police.

109) Additionally,  as  already  noted  above,  various  provisions  of  the

Delhi  Police  Act,  1978  also  demonstrate  that  power  of  control  and

supervision is invested with the Administrator.  This includes defining the

limits  and extent  of  the police station and administrative control  over

police  stations.   Moreover,  Entry  2  List  II  would  also  include  the

determination as to the nature and scope of investigations to be done by

the Police.  Therefore, while establishing the ACB as a Police Station, it

would be permissible to circumscribe and limit the investigation sphere

of the ACB.

110) No doubt, Section 2(s) of the Cr.P.C. contemplates establishment

of the police station by the State Government.  However, the Cr.P.C.

also lays down the procedure for making arrest, conducting investigation

and submitting final  reports.  It  does not  contain any provision which

prescribes what offences would be investigated by which police force.

Section 156 of  the Cr.P.C.  merely provides that  officers in the police

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station will investigate those cognizable cases which can be tried by the

court  having  jurisdiction  over  the  local  area  concerned  would  have

power to inquire into or try.  These provisions do not provide how parallel

jurisdiction of two police stations is to be demarcated.  In fact, parallel

jurisdiction to investigate is not contemplated by Cr.P.C. as that would

result  in  chaos and anarchy and would frustrate the very purpose of

investigation.   This  leads us to  hold  that  the Government  which has

competence over Entry 2 List  II  would have power to segregate and

demarcate the jurisdiction to investigate as between two police forces.

Hence the impugned notifications are valid.  This conclusion becomes

inevitable when 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

Others7 and  Zameer  Ahmed  Latifur  Rehman  Sheikh  v.  State  of

Maharashtra and Others8).  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

7 (1977) 1 SCC 677 8 (2010) 5 SCC 246

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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 that

duties and responsibilities pertaining to the Police and maintenance of

public order be vested solely in the Central Government so that ‘there is

no confusion or overlap of the jurisdiction in regard to the focal point of

control and coordination’.  This rationale behind the aforesaid exclusion

directly flows from the unique position occupied by the NCTD as the

nation’s capital and seat of the Central Government.   

  113) Also, the opinion of Chandrachud, J. at paragraph 29 notes that

exclusion of  inter  alia  ‘police’ and  ‘public  order’ was a  “constitutional

indication of the fact that the NCT has been considered to be of specific

importance from the perspective of the nation to exclude three important

areas which have a vital  bearing on its status as a national  capital”.

Following observations from the said opinion are also apt:

"The NCT embodies, in its character as a capital city the political symbolism underlying national  governance.   The circumstances pertaining to the governance of the NCT may have a direct and immediate impact upon the collective welfare of the nation.  This

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is the rationale for exclusion of the subjects of police, public order and  land  from  the  legislative  power  and  necessarily  from  the executive power of the NCT... (paragraph 55)”

xx xx xx

“...national imperatives have led to the carving out of the areas of police,  public  order  and  land  from  the  sphere  of  legislative authority  of  the  legislative  assembly  and  their  entrustment  to Parliament… (paragraph 74)”

114) Pertinently,  the  appellant  wants  exclusive  executive  power  in

respect of the entries in List II, except Entries 1, 2 and 18, as well as all

the subjects over List III.  In this behalf, as noted above, contention of

the appellant is that the Constitution Bench has so decided.  However,

when it comes to excepted matter in Entry 2 List II, though powers of

NCTD  are  totally  excluded,  by  indirect  method  the  appellant  wants

concurrent jurisdiction over the same.  It would be difficult to accept such

a  position.  It  is  also  pertinent  to  mention  that  insofar  as  Notification

dated November 08, 1993 is concerned, whereby ACB of NCTD at Old

Secretariat as police station was created by the Lieutenant Governor,

the same has not been challenged.  No doubt, there was no elected

Government at that time.  Fact remains that this Notification has held the

field even thereafter 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

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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  to  the  definition  of  ‘appropriate

Government’ contained in Section 2(a) of this Act, which reads as under:

“"appropriate Government" means –  

(i) the Central Government, in relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List I or List II or List III in the Seventh Schedule to the Constitution; and

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(ii) the State Government, in relation to a Commission appointed by it  to make an inquiry into any matter relatable to any of the entries enumerated in List  II  or List  III in  the Seventh Schedule to the Constitution……

(emphasis supplied)”

118) As per  Mr. Naphade,  clause (I)  of  sub-section (a)  of  Section 2

relates to both the Entries, namely, Entry 91 of List I and Entry 45 of List

III, whereas clause (ii) is relatable to Entry 45 of List III. Argument is that

since Entry 45 of List III steps in and in respect of this Entry NCTD has

both legislative and executive competence, it would be an “appropriate

Government”  for  the  purposes  of  the  COI  Act.   Mr.  Naphade  also

referred  to  proviso  (a)  to  Section  3  which,  according  to  him,  is  the

provision made to avoid any conflict.  It is as under:

"(a)  by  the  Central  Government,  no  State  Government  shall, except  with  the  approval  of  the  Central  Government,  appoint another Commission to inquire into the same matter for so long as the  Commission  appointed  by  the  Central  Government  is functioning;”

119) Mr.  Naphade  submitted  that  while  holding  that  the  “State

Government” in the above definition of  “appropriate Government” does

not include the Government of NCT of Delhi, the High Court has applied

the definition of State Government under Section 3(60) of the GC Act

and  this  is  another  issue  where  the  said  definition  has  been

mechanically applied, without understanding the context or text of the

enactment.

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120) In respect of this issue, the High Court has held that “In the light of

the clear and unambiguous definitions of the Central Government and

State Government under Section 3(8) and Section 3(60) respectively of

the  GC  Act,  we  are  of  the  view  that  the  expression  ‘appropriate

Government’  in  respect  of  Union  Territories  shall  be  the  Central

Government only” and further held that even if GNCTD is appropriate

government, that the impugned notification appointing the Commission

of  Enquiry could  not  be  sustained 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.9

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 passed from time to time,  such  as  for  example,  the  Sugar  Crisis  Inquiring

9 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.

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Authority Act, 1950. It is felt that there should be a general law authorizing Government to appoint an inquiring authority on  any  matter  of  public  importance,  whenever  considered necessary,  or  when  a  demand  to  that  effect  is  made  by  the Legislature and that such law should enable the inquiring authority to  exercise  certain  specific  powers  including  the  powers  to summon  witnesses,  to  take  evidence  on  oath,  and  to  compel persons to furnish information. The Bill is designed to achieve this object.”

122) Another submission is that the power to appoint a commission of

enquiry  generally  and  even  under  the  COI  Act,  1952  is  a  power

incidental  to governance as it  is  a means of  a government informing

itself  of  matters  of  public  importance.  By  its  very  nature  and  in  the

interest of good governance and in principle, such a power cannot be

denied  to  any  government.  Furthermore,  the  power  to  appoint  a

commission of inquiry, whether dehors the COI Act, 1952 or in terms of

the Act is traceable to Entry 45 of List III. Thus, the power simpliciter to

appoint a Commission of Enquiry exists with the Council of Ministers of

GNCTD by virtue of Entry 45. The COI Act,  1952 only facilitates and

provides the procedure for conducting such an enquiry. It does not make

any sense to  deny the Government  of  NCT of  Delhi  this  procedural

benefit,  when it otherwise has the power to appoint an enquiry under

Entry 45 of List III.  More so, when the Delhi Assembly can pass a law

setting  up  a  commission  of  inquiry  for  instance  on  transport,  water

resources or primary health centres in order to better inform itself for the

formulation of policy.

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123) On the above basis, it is argued that reliance on Section 3(60) of

the GC Act is unsustainable. The High Court has applied Section 3(60)

of  the  GC  Act  without  understanding  the  context  of  appointment  of

Commission of  Inquiries and without appreciating that  the COI Act  is

only  a  procedural  mechanism  for  exercise  of  power  which  exists

independent of this Act in the NCT of Delhi.   

124) On  this  subject  matter,  Mr.  Maninder  Singh  responded  to  the

aforesaid arguments of Mr. Naphade.  His first submission is that COI

Act is a Parliamentary enactment and, therefore, implementation thereof

has to be as per the provisions of the said Act.  He referred to para 12 of

the judgment in 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 that in order to

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enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws.”

Adverting to the provisions of COI Act, he submitted that Section

2(a)  defines “appropriate government”.   According to him,  clause 2(i)

which defines “State Government” does not include GNCTD.  

125) Mr.  Gautam  Khazanchi,  advocate  who  appeared  on  behalf  of

respondent No. 1 in Civil Appeal No. 2360 of 2017 also supported the

stand  taken  by  Mr.  Maninder  Singh.  He  added  to  the  aforesaid

contention  by arguing  that  notification  dated  August  20,  1996,  which

gives  power  to  the  LG,  remains  unchanged.  According  to  him,  this

notification  dated  August  20,  1966  is  a  specific  statutory  delegation

which accorded the status of the competent authority on the LG under

the COI Act.  Therefore, it is the administrative of any Union Territory (LG

in the case of NCTD) who is competent to exercise the discharge the

function of  the ‘State  Government’  under  this  Act.   This  position,  he

argued, has not changed even after the Constitutional amendment and

enacting of GNCTD Act, 1991.  The learned counsel submitted that in

State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru10, one of the

arguments raised by the defence was that valid sanction had not been

obtained as per Section 196 of  the Cr.P.C. in order to prosecute the

accused persons. However, the Court noted:

10 (2005) 11 SCC 600

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"11. As regards the sanction under Section 196 CrPC it is recited in the sanction order (Ext. P-11/2) that the Lieutenant Governor acted  in  exercise  of  powers  conferred  by  sub-section  (1)  of Section 196 CrPC read with the Government of India, Ministry of Home Affairs notification dated 20-3-1974. Under that notification, there  was  delegation  of  powers  to  the  Lieutenant  Governor  to grant  sanction.  The  said  notification  which  finds  place  in  the annexures to the written submissions made on behalf  of  Gilani shows that it was issued under Article 239(1) of the Constitution enabling  the  Administrator  of  the  Union  Territory  to  discharge powers and functions of the State Government under CrPC. We accept the submission of the learned Senior Counsel for the State that the delegation of power contained in the said notification will continue to operate unless Parliament by law provides otherwise. The Government of NCT of Delhi Act, 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 Administrator thereof. Rejecting the challenge, this Court held that under  Article  239-AA, the Administrator  appointed under  Article 239 does not lose his status as such and it is only his designation which is merged into the new designation of Lieutenant Governor “in  keeping  with  the  upgraded  status  of  this  particular  Union Territory”.  The  Lieutenant  Governor,  who  continues  to  be  an

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Administrator, was held to derive authority to grant sanction under Section 50 by reason of the legislative fiction under Section 2(1) (h), the Administrator being deemed to be the State Government for the purpose of Section 50. Hence: (SCC p. 654, para 10)

“10. … by virtue of specific statutory delegation in favour of the Administrator who is constitutionally designated as the Lieutenant Governor as well, the sanction accorded by the said authority is a valid sanction under Section 50 of POTA.”

The decision in  Navjot  Sandhu  [State (NCT of  Delhi)  v.  Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] turned upon a specific  statutory delegation in  favour  of  the Administrator  to grant  sanction.  It  is  hence  of  no  assistance  to  the  present constitutional context.”

 127) The learned counsel also sought to draw sustenance from Section

41(1)(ii)  of  the GNCTD Act  which states that  the LG shall  act  in  his

discretion in matters where he is required to, under any law.  Since the

LG is the ‘Appropriate Government’ under the COI Act, he is bound to

exercise his discretion as envisaged under Section 41 of the GNCTD

Act.   The power  of  the LG to  act  in  his  own discretion where he is

required to under any law has been affirmed by the Constitution Bench

decision.   

128) In  the  alternative,  and  without  prejudice  to  the  aforesaid

arguments, the learned counsel argued that in any event, the notification

dated August 11, 2015 constituting Commission of Inquiry is violative of

GNCTD Act  and  ToBR.   To buttress  this  submission,  he  referred  to

Section 45 of the GNCTD Act as well as Rule 23 of ToBR as per which

every  decision  taken  by  the  Council  of  Ministers  has  to  be

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communicated to the LG to keep him apprised and to enable him to

exercise the power conferred upon him under Article 239AA(4) and the

proviso thereof.   Unless the LG is kept informed of  all  decisions,  he

cannot exercise the Constitutional power to disagree vested upon him, if

need be, and thus, cannot make a reference to the 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:

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"(8) "Central Government" shall-

(a) …

(b)   in  relation  to  anything  done  or  to  be  done  after  the commencement  of  the  Constitution,  means  the  President;  and shall include-

(i) …

(ii) …

(iii)   in  relation  to  the  administration  of  a  Union  Territory,  the administrator thereof acting within the scope of the authority given to him under article 239 of the Constitution;”

 130) Section  3(60)  of  the  GC Act,  on  the  other  hand,  defines  State

Government, relevant provision whereof is extracted below:

"3(60)  “State Government”-

(a) …

(b) …

(c)   as  respects  anything  done  or  to  be  done  after  the commencement  of  the  Constitution  (Seventh  Amendment)  Act, 1956,  shall  mean,  in  a  State,  the  Governor,  and  in  a  Union Territory,  the  Central  Government;  and  shall,  in  relation  to functions entrusted under article 258A of the Constitution to the Government  of  India,  include  the  Central  Government  acting within the scope of the authority given to it under that article;

131) The  GC  Act  also  defines  ‘Government’,  ‘State’  and  ‘Union

Territory’. We would like to reproduce these definitions as well:

"3(23)  “Government” or “the Government” shall include both the Central Government and any State Government;

3(58)  “State”- (a) …

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(b) as respects any period after such commencement, shall mean a  State  specified  in  Schedule  I  to  the  Constitution  and  shall include a Union Territory;

3(62A)  “Union Territory” shall mean any Union Territory specified in  Schedule  I  to  the  Constitution  and  shall  include  any  other territory comprised within the territory of India but not specified in that Schedule;”

132) No doubt, definition of State as contained in Section 3(58) includes

Union Territory.  However, we are concerned with the meaning of ‘State

Government’ which is defined in Section 2(60) of the GC Act.  Here, it is

specifically  provided  that  in  respect  of  Union  Territory,  the  State

Government would mean the Central Government.

133) It would be appropriate to remark that this aspect had come up for

consideration in the case of Goa Sampling Employees’ Association v.

General  Superintendence  Co.  of  India11,  though  in  the  context  of

definition of “Appropriate Government” contained in Section 2(a) of the

Industrial Disputes Act. Goa was Union Territory at that point of time.

The  workman  had  raised  dispute  and  reference  in  this  respect  was

made by the 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

11 (1985) 1 SCC 206

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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 Government” in a Union Territory would mean

the “Central Government”, in terms of Section 3(60) of the GC Act.  It

would not be constitutionally correct to describe the Administration of a

Union Territory as a “State Government”.  This conclusion is arrived at in

the following manner:

"12. Parliament enacted the Government of Union Territories Act, 1963  (“1963  Act”  for  short).  Its  long  title  reveals  the  object underlying  the  enactment,  namely,  to  provide  for  Legislative Assemblies and Council of Ministers for certain Union Territories and for certain other matters. Union Territory of Goa, Daman and Diu  is  governed  by  the  1963  Act  [See  Section  2(h)].  The expression “Administrator” has been defined in Section 2(a) of the 1963 Act to mean “the Administrator of a Union Territory appointed by  the  President  under  Article  239”.  Section  18  specifies  the extent of legislative power of the Legislative Assembly of a Union Territory  to  encompass  any  of  the  matters  enumerated  in  the State List or the Concurrent List in the Seventh Schedule. Section 44 provides  that  there shall  be a  Council  of  Ministers  in  each

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Union  Territory  with  the  Chief  Minister  at  the  head  to  aid  and advise the Administrator in exercise of his functions in relation to matters  with  respect  to  which  the  Legislative  Assembly  of  the Union Territory has power to make laws except insofar as he is required by or under the Act to act in his discretion or by or under any law to exercise any judicial or quasi-judicial functions. There is a proviso to Section 44(1) which sheds light on the position of the  Administrator  and  powers  of  the  Council  of  Ministers. According to the proviso in the event of a difference of opinion between the Administrator and the Ministers on any matter, the Administrator  shall  refer  it  to  the  President  for  decision  given therein  by  the  President  etc.  Thus  the  executive  power  of  the Administrator  extends to  all  subjects  covered by the legislative power. But in the event of a difference of opinion the President decides  the  point.  When President  decides  the  point,  it  is  the Central Government that decides the point. And that is binding on the Administrator and also the Ministers. Section 45 provides that “the Chief Minister of a Union Territory shall be appointed by the President”.  Section 46 confers power on the President to make rules for  the conduct  of  business.  Section 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 “the territory of India shall comprise— (a) the territories of the States; and (b) the Union Territories specified in the First Schedule”. The provisions of Part VI of the Constitution do not apply to the Union Territories. Part VI of the Constitution which deals with States clearly indicates that the Union Territory is not a State. Therefore, the Union Territory constitutionally speaking is something other than a State. As far as the States are concerned, there has to be a Governor for each

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State though it would be permissible to appoint the same person as  Governor  of  two  or  more  States.  Part  VIII  provides  for administration of Union Territories. Article 239 conferred power on the  President  for  the  administration  of  Union  Territories  unless otherwise provided by an Act of Parliament. Therefore, apart from the definitions of  the expressions “Central  Government”,  “State Government”  and  “Union  Territory”  as  enacted  in  the  General Clauses  Act,  1897,  the  Constitution  itself  makes  a  distinction between State and its Government called the State Government and Union Territory and the Administration of the Union Territory. Unless otherwise clearly enacted, the expression “State will  not comprehend Union Territory” and the “State Government” would not comprehend Administration of Union Territory. Now if we recall the definition of three expressions “Central Government” [Section 3(8),]  “State  Government”  [Section  3(60)]  and  “Union  Territory” [Section  3(62-A)]  in  the  General  Clauses  Act,  it  would unmistakably show that the framers of the Constitution as also the Parliament in enacting these definitions have clearly retained the distinction  between  State  Government  and  Administration  of Union Territory as  provided by the Constitution.  It  is  especially made clear in the definition of expression “Central Government” that  in  relation  to  the  Administration  of  a  Union  Territory,  the Administrator thereof acting within the scope of the authority given to  him  under  Article  239  of  the  Constitution,  would  be comprehended  in  the  expression  “Central  Government”.  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. 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

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meaning  assigned  to  each  in  the  General  Clauses  Act  unless there is anything repugnant in the subject or context in which it is used. No such repugnancy was brought to our notice. Therefore, these expressions must receive the meaning assigned to them.

15.  The  High  Court  after  referring  to  the  definitions  of  the aforementioned  three  expressions  as  set  out  and  discussed herein first observed that on a careful reading of the definition, it appears “that in relation to the administration of a Union Territory, the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution is the Central Government”.  So far  there is  no dispute.  The High Court  then observed that “it  must follow that the Administrator is the State Government insofar as the Union Territory is concerned, and it is so provided in the definition of the State Government in Section 3(60) of  the General  Clauses Act”.  The High Court  fell  into an error in interpreting clause (c) of Section 3(60) which upon its true construction would show that in the Union Territory, there is no concept of State Government but wherever the expression “State Government” is used in relation to the Union Territory, the Central Government would be the State Government. The very concept of State Government in relation to Union Territory is obliterated by the  definition.  Our  attention  was,  however,  drawn  to  the  two decisions of this Court in Satya Dev Bushahri v. Padam Dev [AIR 1954 SC 587 : 1955 SCR 549 : 1954 SCJ 764 : 10 ELR 103] and the  decision  of  this  Court  in  State  of  Madhya Pradesh  v.  Shri Moula Bux [AIR 1962 SC 145 : (1962) 2 SCR 794 : (1961) 2 SCJ 549] in which with reference to Part C States, some observations have been made that “the authority conferred under Article 239, as it then stood, to administer Part C States has not the effect of converting  those States  into  the Central  Government,  and that under  Article  239  the  President  occupies  in  regard  to  Part  C States, a position analogous to that of a Governor in Part A States and of a Rajpramukh in Part B States”. It was also observed that “though the Part  C States are centrally administered under the provisions  of  Article  239,  they do  not  cease to  be  States  and become merged with the Central Government”. It was then urged that by the amendment to Articles 239 and 240 by the Constitution (Seventh  Amendment)  Act,  1956  and  introduction  of  Articles 239-A and  239-B  by  the  Constitution  (Fourteenth  Amendment) 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

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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 Chandrachud, J. in the

Constitution Bench judgment, where the learned Judge has specifically

dealt  with  the  aforesaid  case  of  Goa  Sampling  Employees

Association and held that there is no ‘State Government’ in the Union

Territory and the State Government shall mean the Central Government.

It is so stated in Para 448 of the opinion which reads as under:

"448. Dealing with the provisions of Section 44(1) of the 1963 Act, this  Court  observed thus:  (Goa Sampling case  [Goa Sampling Employees'  Assn.  v.  General  Superintendence Co.  of  India (P) Ltd.,  (1985) 1 SCC 206 : 1985 SCC (L&S) 201] , SCC p. 213, para 12)

“12. … According to the proviso in the event of a difference of opinion between the Administrator and the Ministers on any matter, the Administrator shall refer it to the President for decision  given  therein  by  the  President,  etc.  Thus  the executive power of the Administrator extends to all subjects covered  by  the  legislative  power.  But  in  the  event  of  a difference of opinion the President decides the point. When President  decides  the point,  it  is  the Central  Government that decides the point.”

The Court noticed that the provisions of Part VI of the Constitution which deal with the States clearly indicate that a Union Territory administration is  not  a  State  Government.  The Court  observed that the Constitution makes a distinction between a State and its Government (called the State Government) on one hand and the Union  Territory  and  its  administration  on  the  other  hand.  This

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distinction,  the  Court  observed,  was  carried  in  the  definition contained in the General Clauses Act: (SCC p. 214, para 14)

“14. … Now if we recall the definition of three expressions “Central  Government”  [Section  3(8)],  “State  Government” [Section 3(60)] and “Union Territory” [Section 3(62-A)] in the General Clauses Act, it  would unmistakably show that the Framers of the Constitution as also Parliament in enacting these  definitions  have  clearly  retained  the  distinction between  State  Government  and  Administration  of  Union Territory  as  provided  by  the  Constitution.  It  is  especially made  clear  in  the  definition  of  expression  “Central Government” that in relation to the Administration of a Union Territory, the Administrator thereof acting within the scope of the  authority  given  to  him  under  Article  239  of  the Constitution,  would  be  comprehended  in  the  expression “Central Government”. 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  VIII  of  the Constitution in 1956 and before the insertion of Articles 239-A and 239-B. The position in law was set out as follows: (Goa Sampling case [Goa Sampling Employees'  Assn.  v.  General  Superintendence Co.  of  India (P) Ltd.,  (1985) 1 SCC 206 : 1985 SCC (L&S) 201] , SCC p. 217, para 17)

“17.  … On a conspectus of  the relevant provisions of  the Constitution and the 1963 Act, it clearly transpires that the concept of State Government is foreign to the administration

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of Union Territory and Article 239 provides that every Union Territory  is  to  be  administered  by  the  President.  The President  may act  through  an  Administrator  appointed  by him. Administrator is thus the delegate of the President. His position is wholly different from that of a Governor of a State. Administrator can differ with his Minister and he must then obtain the orders of the President meaning thereby of the Central  Government.  Therefore,  at  any  rate  the Administrator  of  Union  Territory  does  not  qualify  for  the description of  a State Government.  Therefore,  the Central Government is the “appropriate Government”.”

 135) We,  therefore,  are  unable  to  accept  the  submission  of  Mr.

Naphade that the expression ‘State Government’ occurring in Section

2(a) of the COI Act would mean GNCTD, a Union Territory.   

136) It is not for us to deal with the argument of Mr. Naphade that Entry

45 of List III confers legislative and executive competence on GNCTD

and,  therefore,  GNCTD can  pass  an  appropriate  order  appointing  a

Commission of Inquiry in exercise of its executive power.  In the instant

case, we are concerned with notification dated August 11, 2015 which is

passed under the COI Act.  We, therefore, uphold the judgment of the

High Court on this aspect.

Issue No.4: 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?

137) On this issue, submissions were made by Mr. Kapil Sibal, learned

senior counsel, on behalf of GNCTD.  In the first instance, he referred to

Section  108 of  the Electricity  Act  which  gives  State  Government  the

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power to give directions to the State Electricity Regulatory Commission

(SCRC).  It reads as under:

"Section 108. (Directions by State Government):  

(1)  In the discharge of its functions, the State 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  Government  shall  be  entitled  to  issue  policy  directions concerning any subsidy to be allowed for supply of electricity or any  other  infrastructure  services  to  any  class  or  classes  of persons.

Provided that the Government shall contribute an amount to compensate the Board or any company affected to the extent of

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the subsidy granted.  

The Commission shall determine such amounts, the terms and conditions on which and the time within which such amounts are to be paid by the Government.  

(4) The Government shall consult the Commission in relation to any proposed legislation or rules concerning any policy direction and may take into account  the recommendations made by the Commission.”

(Emphasis Supplied)   

139) Certain definitions which were referred to by Mr. Sibal from DER

Act  may also  be  noted.   Under  Section  2(d)  of  the  DER Act,  2000

“Government”  means  the  Lieutenant  Governor  referred  to  in  Article

239AA of the Constitution” and under Section 2(g) “Lieutenant Governor”

means the Lieutenant Governor of the National Capital Territory of Delhi

appointed by the president under Article 239 read with Article 239AA of

the Constitution”.  Under  Section 2(c),  “Commission”  means the Delhi

Electricity Regulatory Commission referred in Section 3”.   

140) His submission on the conjoint reading of the aforesaid definitions

was that Government is defined as LG referred to in Article 239AA of the

Constitution. He argued that Constitution Bench while interpreting Article

239AA has categorically held that LG is to act on the aid and advice of

the Council of Ministers, and only those matters are excepted where LG

has to  function  in  his  own discretion,  which  was not  the  case  here.

Moreover,  DER  Act  was  passed  by  Delhi  Legislative  Assembly.

Therefore, even the executive power of the Union will not be there.  

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141) Mr. Sibal referred to the judgment of Constitution Bench in Nabam

Rebia  and  Bamang  Felix  v.  Deputy  Speaker,  Arunachal  Pradesh

Legislative Assembly & Ors.12 which discusses in detail discretionary

power  of  the  Governor  under  Article  163  of  the  Constitution.   This

judgment also provides instances of situations wherein Governor may

exercise power “in his discretion” independent of, or, contrary to aid and

advice of Council of Ministers.  Based on that, Mr. Sibal submitted that

exercise of powers under the DER Act does not fall within the domain of

discretionary 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

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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) thereof reads as under:

"5. "Appropriate Government" means,- (a) the Central Government,-

(i)  in  respect  of  a  generating  company  wholly  or  partly owned by it;

(ii)  in  relation  to  any  inter-State  generation,  transmission, trading or supply of electricity and with respect to any mines, oil-fields,  railways,  national  highways,  airports,  telegraphs, broadcasting stations and any works of defence, dockyard, nuclear power installations;

(iii)  in  respect  of  the National  Load Despatch Centre  and Regional Load Despatch Centre;

(iv) in relation to any works or electric installation belonging to it or under its control;

(b) in any other case, the State Government having jurisdiction under this Act;

144) As can be seen from clause (b) above, Appropriate Government is

the  State  Government  having  jurisdiction  under  this  Act  in  all  those

cases which do not come within the domain of ‘Central Government’.

This definition contained in Section 2(5) of the Electricity Act is materially

different from definition of Appropriate Government in Section 2(a) of the

COI Act.  Another important and distinguishing aspect is that in respect

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of Delhi, the DER Act has also been enacted by the State Legislative

Assembly of NCT of Delhi to which President has accorded his consent.

Under  this  Act,  Delhi  Electricity  Regulatory Commission  (DERC)  has

been established to exercise the powers conferred on, and to perform

the functions assigned to it under the said Act.  It acts as a quasi-judicial

body  which  is  clear  from  Section  10  of  the  DER  Act.   Section  11

stipulates various functions which DERC is supposed to perform which

include determination of tariff for electricity, wholesale, bulk, grid or retail,

as the case may be; and to determine the tariff payable for the use of

transmission facility etc.  In essence, such powers are almost the same

powers which are given to Central  Electricity Regulatory Commission

(CERC).   Thus,  insofar  as  NCTD  is  concerned,  it  has  its  own

Commission,  namely,  DERC.   DER  Act  also  stipulates  powers  of

Government  in  Part  IV thereof.   General  powers of  the Government,

inter  alia, include  giving  directions  to  the  DERC in  matters  of  policy

involving public  interest,  as  the Government  may issue  from time to

time.  These powers are akin to the powers given under Section 108 of

the Electricity Act, 2003.  Government is 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

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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 concerned.  As a result, and

going by the dicta laid down by the Constitution Bench, we set aside the

decision of  the Delhi  High Court  on this  aspect  and hold that  it  was

within  the  jurisdiction  of  GNCTD  to  issue  notification  No.

F.11(58/2010/Power/1856) dated June 12, 2015.  We may make it clear

that we have not touched upon the merits of the said notification as that

is not the issue before us.

Issue No.5: Whether the Revenue Department of the GNCTD had the power to revise the minimum rates of Agricultural Land (Circle Rates) under the provisions of Indian Stamp Act, 1899?

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147) The  GNCTD  had  issued  the  notification  dated  August  4,  2015

revising the rates of Agricultural Land (Circle Rates) under the provisions

of  Indian  Stamp  Act,  1899  and  Delhi  Stamp  (Prevention  of

Under-Valuation  of  Instruments)  Rules,  2007.  Before  issuing  this

notification,  matter  was  not  placed  before  the  LG  for  his  views  or

concurrence.  This notification reads as under:

"GOVERNMENT  OF  NATIONAL  CAPITAL  TERRITORY  OF DELHI,  REVENUE  DEPARTMENT,  S.SHAM  NATH  MARG, DELHI.

No.F.1(1953)/Regn.Br./Div.Com/HQ/2014/191 Dated 4th August, 2015 No.F.1(1953)/Regn.Br./Div.Com/HQ/2014- In exercise of the powers conferred by sub-section(3) of Section 27 the Indian Stamp Act, 1899 (2 of 1899) and rule 4 of the Delhi Stamp (Prevention of  Under  -  Valuation of  Instruments)  Rules, 2007  read  with  the  Ministry  of  Home  Affairs,  Govt.  of  India Notification  No.S.O.1726  (No.F.215/61-Judl.-II)  dated  the  22nd July, 1961 and in supersession of this Department's notification No.F.1(177)/Regn.Br./Div.Com./07/254-279 dated 14.03.2008; the Lt.  Governor  of  the  National  Capital  Territory  of  Delhi,  hereby revises  and  notifies  the  minimum  rates  for  the  purposes  of chargeability  of  stamp  duty  on  the  instruments  related  to sale/transfer of agriculture land under the provisions of the said Act, as per details given below:-

Srl  No.

District Rates  for agricultural land  (Rs.  Per acre)

Rates  for  the agricultural  land falling  in  villages where  land pooling  policy  is applicable     (Rs. per acre)

1. East 1.00 Crore 2.25 crore 2. North – East 1.00 Crore 2.25 Crore 3. Shahdra 1.00 Crore 2.25 Crore 4. North 1.25 Crore 3.00 Crore 5. North West 1.25 Crore 3.00 Crore  6. West 1.25 Crore 3.00 Crore

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7. South West 1.50 Crore 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  and  would  affect  the  document  evidencing  the  said

transfer of the agricultural land, but not on the land itself. The occasion

for levy of stamp duty is the execution of the document/conveyance, as

distinguished  from  the  immovable  property  which  is  the  underlying

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subject matter of the transaction dealt with in the document/conveyance.

Thus, the order of 4th August, 2015 traceable to Entry 63 of List II, rather

than Entry 18 of List II. Entry 63 of List II reads as under:  

'Rates  of  stamp  duty  in  respect  of  documents  other  than those specified in the provisions of List I with regard to rates of stamp duty.'

150) The  appellant  has  submitted  that  the  phrase  'other  than  those

specified in the provisions of List I ' in Entry 63 List II is of no assistance

to the Union of India. An analysis of Entry 63 of List II and Entry 91 of

List I (which is the concerned provision of List I) shows that a distinction

can  be  observed  between  the  powers  of  the  central  and  state

legislatures to impose/levy stamp duty. Entry 91 of List I reads as under:  

'91. Rates of stamp duty in respect of bills of exchange, cheques, promissory  notes,  bills  of  lading,  letters  of  credit,  policies  of insurance, transfer of shares, debentures, proxies and receipts.'

151) The Union is empowered to levy stamp duty ONLY on the specific

types of instruments specified under Entry 91 of List I. But the State has

been given  the power  to  impose stamp duty on every other  type  of

document/instrument not mentioned under Entry 91 of List I.

152) It is also argued that  it is general practice all over the country for

State Governments to set the circle rates for conveyance of immovable

properties within the State. Examples of the same are Karnataka Stamp

[Prevention of Undervaluation of Instrument Rules], 1977; Tamil Nadu

Stamp  [Prevention  of  Undervaluation  of  Instruments]  Rules,  1968;

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Andhra Pradesh Stamp [Prevention of  Undervaluation of  Instruments]

Rules,  1975;  West  Bengal  Stamp  [Prevention  of  Undervaluation  of

Instruments] Rules, 2001; Bihar Stamp [Prevention of Undervaluation of

Instruments] Rules, 1995; Haryana Stamp [Prevention of Undervaluation

of  Instruments]  Rules,  1978;  Madhya  Pradesh  Stamp  [Prevention  of

Undervaluation  of  Instruments]  Rules,  1975;  Chhattisgarh  Stamp

[Prevention  of  Undervaluation  of  Instruments]  Rules,  2001;  Kerala

Stamp  [Prevention  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.

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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 27(3) as amended for Delhi, reads as under:

"27. Facts affecting duty to be set forth in instrument

(3) In the case of instruments relating to land, chargeable with valorem  duty,  the  Government may  notify  minimum  rates  for valuation of land."

[Emphasis Supplied]

It is submitted that 'Government' under Section 27(3) must be read

to mean "Government of NCT of Delhi".  

155) In reply, the respondents submit that Section 27(3) of the Indian

Stamp Act is concerned with notifying minimum rates for valuation of

land and it  has nothing to do with ‘rates of  stamp duty’.   As per the

respondents, power to notify minimum rates for valuation of land (circle

rates) is relatable to Entry 18 of List II which falls within the exclusive

domain of the Union.  It is also argued that as per the law laid down in

State of Gujarat & Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal &

Ors.13, entry in the Seventh  Schedule is to be given its widest possisble

interpretation.  According to respondents, Entry 63 of List II only deals

with ‘rates of stamp duty’ and, therefore, would not apply to ‘minimum

13 (2004) 5 SCC 155

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rates for valuation of land’ which is relatable to Entry 18 of List II.  It was

also argued that by virtue of the Presidential Orders dated July 22, 1961

and September  07,  1966  under  Article  239,  the  power  of  the  Union

under the Indian Stamp Act, 1899 for NCT Delhi had been delegated on

the LG.  All the previous notifications for notifying the circle rates in Delhi

(July 18,  2007,  March 14,  2008,  November 15,  2011 etc.)  had been

issued by the LG in exercise of his delegated power under Article 239.   

156) From the respective  submissions,  it  becomes apparent  that  the

entire  controversy  centers  around  the  question  as  to  whether  the

impugned notification is relatable to Entry 18 of List II i.e. ‘land’ or the

subject matter falls within the scope of Entry 63 of List II.  Entry 18 of

List II reads as under:

"18.  Land,  that  is  to  say, rights  in  or  over  land,  land  tenures including the relation of landlord and tenant, and the collection of rents;  transfer  and  alienation  of  agricultural  land;  land improvement and agriculture loans; colonization."

We may also note the language of Entry 63 List II:

"63.  Rates  of  stamp duty  in  respect  of  documents  other  than those specified in the provisions of List I with regard to rates of stamp duty."  

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

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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 ‘land’ namely

rights  in  or  over  land,  land  tenures  etc.  or  transfer  of  alienation  of

agricultural land etc.  Stamp duty is not a duty on instrument but it is in

reality a duty on transfer of property.  In that sense, as rightly held by the

High Court, the occasion for levy of stamp duty is the document which is

executed as distinguished from the transaction which is embodied in the

document.   

159) Even after accepting the aforesaid plea of the GNCTD, the High

Court has set aside the said notification on the ground that this decision

of the Council of Ministers was without seeking views/concurrence of the

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LG.  As per the High Court, such an order could not be issued unless the

decision of the Council of Ministers is communicated to the LG.

160) From the judgment of the Constitution Bench, it is clear that the

Council of Ministers have a right to take such a decision. Discussion to

this extent of the High Court is expressed in Paras 107, 108, 116 and

117 of its judgment may not be entirely correct.  These paras read as

under:

"107.  In  the light  of  the  above-noticed provisions,  we have no manner  of  doubt  to  conclude that  every decision taken by the Council of Ministers shall be communicated to the Lt. Governor for his views. The orders in terms of the decision of the Council of Ministers can be issued only where no reference to the Central Government  is  required  as  provided  in  Chapter  V  of  the Transaction of Business Rules.  

108.  Making  a  reference  by  the  Lt.  Governor  to  the  Central Government as provided under Chapter V of the Transaction of Business  Rules  is  possible  only  when  the  decision  is communicated  to  the  Lt.  Governor.  Therefore,  there  is  no substance in the contention that an order can be passed pursuant to the decision of the Council of Ministers without communicating such decision to the Lt.Governor for his views/concurrence with respect  to  any  of  the  matters  enumerated  in  List-II  or  List-III except the three reserved matters in Entries 1, 2 and 18 of List-II. The emphasis sought to be laid by the learned Senior Counsels who  appeared  for  GNCTD  on  Rule  23  of  the  Transaction  of Business  Rules  to  substantiate  the  contention  that  those proposals which are mentioned in Rule 23 alone are required to be submitted to Lt. Governor is misplaced. The word "essentially" employed in Rule 23 makes clear the legislative intent that the proposals  specified  (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

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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 Entry 1, 2

and 18) as well as List III (wherein it has concurrent jurisdiction along

with  the  Central  Government).  That  is  the  interpretation  accorded to

clause (4) of Article 239AA. At the same time, this clause contains a

proviso as well which reads as under:

"Provided that in the case of  difference of opinion between the Lieutenant  Governor  and  his  Ministers  on  any  matter,  the Lieutenant  Governor  shall  refer  it  to  the  President  for  decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take  immediate  action,  to  take  such  action  or  to  give  such direction in the matter as he deems necessary.”  

162) Interpreting this proviso, it is held as under:

"215. Now, it is essential to analyse clause (4) of Article 239-AA, the most important provision for determination of the controversy at hand. Clause (4) stipulates a Westminster style Cabinet system of Government for NCT of Delhi where there shall be a Council of Ministers 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 Delhi Legislative Assembly has

151

power  to enact  laws except  in  matters  in respect  of  which the Lieutenant Governor is required to act in his discretion.

216.  The proviso to clause (4) of Article 239-AA stipulates that in case  of  a  difference  of  opinion  on  any  matter  between  the Lieutenant Governor and his Ministers, the Lieutenant Governor shall  refer  it  to  the  President  for  a  binding  decision.  Further, pending such decision by the President, in any case where the matter, in the opinion of the Lieutenant Governor, is so urgent that it  is  necessary  for  him  to  take  immediate  action,  the  proviso makes  him  competent  to  take  such  action  and  issue  such directions as he deems necessary.

217.   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.

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” occurring in a statute or constitutional provision is not to be mechanically read to mean “every” and the context in which the word  has  been  used  must  be  given  due  weightage  so  as  to deduce the real intention and purpose in which the word has been used.

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233.  It has to be clearly understood that though “any” may not mean  “every”,  yet  how  it  should  be  understood  is  extremely significant. Let us elaborate. The power given to the Lieutenant Governor under the proviso to Article 239-AA(4) contains the rule of exception and should not be treated as a general norm. The Lieutenant  Governor  is  to  act  with  constitutional  objectivity keeping in view the high degree of constitutional trust reposed in him while exercising the special power ordained upon him unlike the Governor and the President who are bound by the aid and advice of their Ministers. The Lieutenant Governor need not, in a mechanical manner, refer every decision of his Ministers to the President. He has to be guided by the concept of constitutional morality. There have to be some valid grounds for the Lieutenant Governor to refer the decision of the Council of Ministers to the President in order to protect the interest of NCT of Delhi and the principle of constitutionalism. As per the 1991 Act and the Rules of Business, he has to be apprised of every decision taken by the Council of Ministers. He cannot change the decision. That apart, there  is  no  provision  for  concurrence.  He  has  the  authority  to differ.  But  it  cannot  be  difference for  the  sake of  difference.  It cannot be mechanical or in a routine matter. The power has been conferred to guide, discuss and see that the administration runs for the welfare of the people and also NCT of Delhi that has been given  a  special  status.  Therefore,  the  word  “any”  has  to  be understood treating  as  a  guidance meant  for  the  constitutional authority. He must bear in mind the constitutional objectivity, the needed advice and the realities.

234.  The proviso to Article 239-AA(4), we say without any fear of contradiction, cannot be interpreted in a strict sense of the mere words employed treating them as only letters without paying heed to the thought and the spirit which they intend to convey. They are not to be treated as bones and flesh without nerves and neurons that make the nerves functional.  We feel,  it  is necessary in the context to read the words of the 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.

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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  cannot  ignore  the  conscience  of  the Constitution.  That apart,  when we take a broader view, we are also alive to  the  consequence of  such an  interpretation.  If  the expressions  “in  case  of  difference”  and  “on  any  matter”  are construed to mean that the Lieutenant Governor can differ on any proposal, the expectation of the people which has its legitimacy in a democratic set-up, although different from States as understood under the Constitution, will lose its purpose in simple semantics. The essence and purpose should not be lost in grammar like the philosophy of  geometry cannot be allowed to lose its universal metaphysics  in  the  methods  of  drawing.  And  that  is  why,  we deliberated upon many a concept. Thus, the Administrator, as per the Rules of Business, has to be apprised of each decision taken by a Minister or Council of Ministers, but that does not mean that the Lieutenant Governor should raise an issue in every matter. The  difference  of  opinion  must  meet  the  standards  of constitutional  trust  and  morality,  the  principle  of  collaborative federalism  and  constitutional  balance,  the  concept  of constitutional  governance  and  objectivity  and  the  nurtured  and cultivated idea of respect for a representative Government. The difference of opinion should never be based on the perception of “right to differ” and similarly the term “on any matter” should not be put on such a platform as to conceive that as one can differ, it should be a norm on each occasion. The difference must meet the concept of constitutional trust reposed in the authority and there has to be objective assessment of  the decision that is sent for communication and further the rationale of difference of opinion should  be  demonstrable  and  it  should  contain  sound  reason. There  should  not  be  exposition  of  the  phenomenon  of  an obstructionist  but  reflection  of  the  philosophy  of  affirmative constructionism and  a  visionary. The constitutional  amendment does not perceive a situation of constant friction and difference which gradually builds a structure of conflict. At the same time, the Council of Ministers being headed by the Chief Minister should be guided  by  values  and  prudence  accepting  the  constitutional position that NCT of Delhi is not a State.”

In a concurring opinion on this aspect, Chandrachud, J. has also

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given lucid commentary.  

163) It  becomes clear  from the above that  even when the executive

wing 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 without referring the same to the LG in

the first instance.  More pertinently, the decision here touches upon the

governance of the UT.  Therefore, we agree with the conclusion of the

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High Court  that  views of  LG should  have been taken before  issuing

circular dated August 4, 2015.

However, we would like to add that normally, and generally, the LG

is expected to honour the wisdom of the council of ministers. He is also

expected to clear the files expeditiously and is not supposed to sit over it

unduly. He’s under duty to bear in mind expediency and urgency of the

subject  matter  of  the  decisions  taken  by  the  GNCTD,  where  ever

situation  so  demands.  That  in  fact  is  the  facet  of  good governance.

Likewise , the executive is also expected to give due deference to the

unique  nature  of  the  role  assigned  to  the  LG  in  the  Constitutional

scheme. By and large, it  demands a mutual respect between the two

organs. Both should realise that they are here to serve the people of

NCTD.  Mutual  cooperation,  thus,  becomes essential  for  the  effective

working of the system.

Issue No.6: 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.?

164) Special  Public  Prosecutor  is  appointed as per  the provisions of

Section 24(8) of Cr.P.C. which is to the following effect:

“24. Public Prosecutors. …

(8)  The  Central  Government  or  the  State  Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.”  

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165) As  is  clear  from  the  above,  power  to  appoint  Special  Public

Prosecutor  is  conferred  both  upon  the  Central  Government  and  the

State Government.  The question, therefore, arises is as to whether the

expression  ‘State  Government’  would  include  GNCTD.   As  per  the

appellant,  once  the  Government  of  NCT of  Delhi  is  found to  be the

“State Government” under the Cr.P.C., necessarily the power to appoint

the Special Public Prosecutor will also lie with the Government of NCT

of Delhi. If the contention of the Union of India is to be accepted then

under the Cr.P.C. both the Central Government and State Government

will be the Central Government alone, which will be a completely absurd

legal position, particularly in light of the fact that subsequent to the 69 th

Amendment, various powers 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

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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 Cr.P.C.  

166) We may mention at this stage that writ petition was filed in the High

Court by the GNCTD challenging the order of the Special Judge dated

September  7,  2015  and  order  of  LG  dated  September  4,  2015

appointing Shri S.K. Gupta, Advocate as Special Public Prosecutor to

conduct  the prosecution in  FIR No.  21 of  2012 dated December 17,

2012.  The  GNCTD  had  appointed  another  lawyer  as  Special  Public

Prosecutor.   The  High  Court  has  held  that  under  Section  24(8)  of

Cr.P.C.,  State  Government  is  empowered  to  appoint  Special  Public

Prosecutor. However, as NCTD is a Union Territory, by virtue of Section

3(60) of the GC Act, it is the Central Government which should be the

State Government.  Further, since by notification dated March 20, 1974,

administrator  is  empowered  to  exercise  powers  and  the  expression

‘State Government’ would mean the LG.  At the same time, the High

Court  has  also  observed  that  power  to  appoint  Public  Prosecutor  is

relatable to Entries 1 and 2 of List III in respect of which GNCTD has

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legislative competence.  Therefore, the LG must appoint Special Public

Prosecutor on the aid and advice of Council of Ministers.

167) As  is  clear  from  the  arguments  of  GNCTD  noted  above,  it  is

aggrieved by that part of the impugned order of the High Court whereby

State  Government  in  respect  of  NCTD  is  held  to  be  the  Central

Government by virtue of  Section 3(60) of  the GC Act.   On the other

hand, the Union Government is aggrieved by that portion of the order of

the High Court  where it  is  held that  LG must  appoint  Special  Public

Prosecutor on the aid and advice of Council of Ministers.   

168) Arguments  on  behalf  of  the  Union  of  India  is  that  by  virtue  of

Notification  dated  March  20,  1974,  President  under  Article  239  had

empowered the Administrator to exercise all the powers conferred upon

State Government by the Cr.P.C. except that conferred by Section 8 and

477.  Therefore, the power under Section 24 to appoint Prosecutor or

Special Public Prosecutor vests with the LG and not the Government of

NCT.  So far as Entries 1 and 2, List III are concerned, it is argued that

undoubtedly Legislative Assembly of  NCT has legislative competence

qua  said  entries  but  it  is  subservient  to  the  legislative  power  of  the

Union.  It is contended that legislative competence of NCT Delhi cannot

derogate from or be repugnant to law of Parliament.  And once Cr.P.C.,

1973  has  been  made  by  the  Parliament  dealing  exhaustively  and

comprehensively  with  criminal  procedure  the  executive  power  of

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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 case or class of cases. Admittedly, NCT of Delhi is a Union Territory and not a State. As per Sections 3(8), 3(58) and 3(60) of the General Clauses Act, 1897, the expression 'State Government' for the purpose of a Union Territory means the President and includes the Administrator in terms of Article 239 of the Constitution read with the Notification dated 20.03.1974 {See Para 167 (supra)} under which the Administrators of all the Union Territories were empowered to exercise the powers of the State Government under Cr.P.C. So far as NCT of Delhi is concerned, the  'State  Government'  thus  means  the  Lt.  Governor  for  the purpose of Section 24(8) of Cr.P.C. However, the power to appoint a Public Prosecutor is relatable to Entries 1 and 2 of List III  in

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respect of which the Government of NCT of Delhi has legislative competence  under  Article  239AA  of  the  Constitution.  As  a corollary, the exercise of the functions relating to the said subject by the  Lt.  Governor  under  Article  239AA(4)  of  the  Constitution shall be on the aid and advice of the Council of Ministers with the Chief Minister at the head.  

301.  Hence, we are unable to accept the contention of the Union of  India  that  the  Council  of  Ministers  have  no  role  to  play  in exercise  of  the  powers  under  Section  24(8)  of  Cr.P.C.  In  our considered  opinion,  the  Lt.  Governor  under  Section  24(8)  of Cr.P.C.  does  not  act  eo-nominee  but  exercises  the  executive functions of the State. Hence, the said power has to be exercised on  the  aid  and  advice  of  the  Council  of  Ministers  in  terms  of Clause (4) of Article 239AA of the Constitution.  

302.  For the above reasons, we are of the view that it is not open to the Lt. Governor to appoint the Special Public Prosecutor on his own without seeking aid and advice of the Council of Ministers.  

303.  In the circumstances, the impugned order dated 07.09.2015 passed by the Special Judge-07 in FIR No.21/2012 is hereby set aside and there shall be a direction to the Special Judge to pass an appropriate order afresh in accordance with law.”

170) In the earlier part of the discussion, it has held:

(a) As  per  Sections  3(8),  3(58)  and  3(60)  of  the  GC  Act,  the

expression  ‘State  Government’  for  the  purposes  of  a  Union  Territory

means the President and includes the Administrator in terms of Article

239A of the Constitution.   

(b) Insofar  as  NCT of  Delhi  is  concerned,  the  ‘State  Government’,

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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 this

aspect.  The High Court has also categorically held that the power to

appoint a Public Prosecutor is relatable to Entries 1 and 2 of List III.  In

our  opinion,  the High Court  has rightly  held  that  in  respect  of  these

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entries,  the Government  of  NCT of  Delhi  has legislative  competence

under Article 239AA of the Constitution and that the LG under Article

239AA(4)  of  the  Constitution  shall  act  on  the  aid  and  advice  of  the

Council of Ministers.  This conclusion of the High Court is in tune with

the  judgment  of  the  Constitution  Bench.   We,  therefore,  hold  that

Lieutenant Governor, while appointing the Special Public Prosecutor, is

to act on the aid and advice of the Council of Ministers.  This issue is

answered accordingly.   

173) All the appeals stand disposed of by answering the issues in the

manner aforesaid. Contempt Petition also stands disposed of.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; FEBRUARY 14, 2019.

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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2357 OF 2017

GOVT. OF NCT OF DELHI … APPELLANT VERSUS

UNION OF INDIA … RESPONDENT WITH CONT. PETITION (CIVIL) NO. 175 OF 2016 IN  WRIT PETITION (CRIMINAL) NO. 539 OF 1986, CIVIL APPEAL NO. 2360 OF 2017,CIVIL APPEAL NO. 2359 OF  2017, CIVIL APPEAL NO. 2363 OF 2017, CIVIL APPEAL NO.  2362 OF 2017, CIVIL APPEAL NO. 2358 OF 2017, CIVIL APPEAL NO. 2361 OF 2017,CRIMINAL APPEAL NO. 277 OF 2017 AND  CIVIL APPEAL NO. 2364 OF 2017.

J U D G M E N T ASHOK BHUSHAN, J.

I  have  gone  through  the  erudite  and  elaborate

judgment  of  my  esteemed  brother,  Justice  A.K.  Sikri.

Justice A.K. Sikri, in his opinion has noted the details

of facts giving rise to these appeals, order passed in

these appeals referring it to the Constitution Bench and

the  judgment  of  Constitution  Bench  delivered  on

04.07.2018.    My  Brother  has  noted  the  elaborate

submissions made before us, after the Constitution Bench

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has answered the reference and sent back the matter to

the  regular  Bench  for  deciding  these  appeals.   The

submissions made before us by learned counsel for the

parties having been elaborately noted in the opinion of

my esteemed Brother, I feel no necessity of burdening

this  judgment  by  reproducing  the  submissions  again.

Justice Sikri has framed six issues in paragraph Nos. 63

to 68 for consideration in these appeals, which are as

follows:-  

63) The  first  issue  is  whether  the  exclusion  of

“Services”  relatable  to  Entry  41  of  List  II  of  the

Seventh  Schedule  from  the  legislative  and  executive

domain of the NCT of Delhi, vide notification of the

Government  of  India  dated  May  21,  2015,  is

unconstitutional and illegal?

64) The second issue is whether the exclusion of the

jurisdiction of the Anti-Corruption Branch (ACB) of the

NCT of Delhi to investigate offences committed under the

Prevention of Corruption Act, 1987 by the officials of

Central Government and limiting the jurisdiction of the

ACB to the employees of GNCTD alone is legal? (These two

issues arise in Civil Appeal No. 2357 of 2017).

65) The third issue is raised in Civil Appeal Nos.

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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 provisions of Indian Stamp Act, 1899?

68) The sixth issue, which is the subject matter of Criminal Appeal No. 277 of 2018, pertains to the appointment of Special Public Prosecutors, viz., whether it is the Lieutenant Governor or the

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GNCTD which has the power to appoint the Special Public  Prosecutor  under  Section  24  of  the Cr.P.C.?

2. I am in full agreement with the conclusions arrived

at by my esteemed Brother on Issue Nos. 2, 3, 4, 5

and 6.  I do not intend to add anything on the above

issues.  On Issue No.1, I do not entirely agree with

the opinion of my esteemed brother, however, I am in

agreement with his opinion that Entry 41 of List II

of the Seventh Schedule of the Constitution is not

available  to  the  Delhi  Legislative  Assembly.   I

proceed to consider the Issue No.1.

3. As noted above with regard to decisions on all other

issues as given in the opinion of my esteemed brother

I entirely agree.  

4. It is C.A.No.2357 of 2017(Govt. of NCT of Delhi vs.

Union of India) filed against the judgment of the

Delhi High Court dated 04.08.2016 in Writ Petition

(C)No.5888  of  2015  in  which  the  above  issue  has

arisen. The Writ Petition (C)No.5888 of 2015 (Govt.

of  NCT  of  Delhi  vs.  Union  of  India)  was  filed

challenging  the notifications  dated 21.05.2015  and

23.07.2014 issued by the Govt. of India, Ministry of

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Home Affairs empowering the Lt. Governor to exercise

the  powers  in  respect  of  matters  connected  with

“Services”. The notification dated 21.05.2015 which

was challenged in Writ Petition (C)No.5888 of 2015

was to the following effect:

“MINISTRY OF HOME AFFAIRS NOTIFICATION

New Delhi, the 21st May, 2015

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 thinks 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  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

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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 DANICS and DANIPS are common services catering to the requirement of the Union Territories of Daman & Diu, Dadra Nagar Haveli, Andaman and Nicobar  Islands,  Lakshadweep  including  the National Capital Territory of Delhi which is also  administered  by  the  Central  Government through the Ministry of Home Affairs. As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services.  Thus,  ‘Services’  will  fall  within this category.

And whereas it is well established that where there  is  no  legislative  power,  there  is  no executive  power  since  executive  power  is co-extensive with legislative power.

And whereas matters relating to Entries 1, 2 & 18  of  the  State  List  being  ‘Public  Order’, ‘Police’  and  ‘Land’  respectively  and  Entries 64, 65 & 66 of that list in so far as they relate to Entries 1, 2 & 18 as also ‘Services’ fall  outside  the  purview  of  Legislative Assembly of the National Capital Territory of Delhi and consequently the Government of NCT of Delhi will have no executive power in relation

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to the above and further that power in relation to the aforesaid subjects vests exclusively in the  President  or  his  delegate  i.e.  the Lieutenant Governor of Delhi.  

Now,  therefore,  in  accordance  with  the provisions  contained  in  article  239  and sub-clause  (a)  of  clause  (3)  of  239AA,  the President hereby directs that -  

“(i) subject to his control and further orders, the Lieutenant Governor of the National  Capital  Territory  of  Delhi, shall  in  respect  of  matters  connected with  ‘Public  Order’,  ‘Police’,  ‘Land’ 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:—

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“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 along with

other writ petitions. The conclusion of the judgment

dated  04.08.2016  of  the  Delhi  High  Court  are

summarised in paragraph No.302. The Delhi High Court

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in paragraph No.302(v) laid down following:  

“302(v) The matters connected with “Services” fall  outside  the  purview  of  the  Legislative Assembly  of  NCT  of  Delhi.  Therefore,  the direction in the impugned Notification S.O. No. 1368(E)  dated  21-5-2015  that  the  Lieutenant Governor of the NCT of Delhi shall in respect of matters connected with “Services” exercise the powers and discharge the functions of the Central Government to the extent delegated to him  from  time  to  time  by  the  President  is neither illegal nor unconstitutional.”

The  Delhi  High  Court,  in  result,  dismissed  Writ

Petition (C)No.5888 of 2015.

6. While  hearing  this  batch  of  appeals  issues  arose

regarding the interpretation that needed to be given

to  Article  239AA  of  the  Constitution  of  India.

Two-Judge  Bench  directed  for  placing  the  matter

before Chief Justice for constituting a Constitution

Bench. On the above reference order, a five-Judge

Constitution  Bench  was  constituted  and  matter  was

heard  by  five-Judge  Constitution  Bench  which

delivered  its  judgment  on  04.07.2018.  The  main

judgment of the Constitution Bench had been authored

by Justice Dipak Misra, C.J. (as he then was) for

himself and for Dr. Justice A.K. Sikri and Justice

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A.M.  Khanwilkar.  Two  other  separate  opinions  were

also delivered, one by Dr. Justice D.Y. Chandrachud

and one by myself, (Justice Ashok Bhushan). After the

judgment of the Constitution Bench, the matter has

been placed before this Bench for deciding all these

appeals.

7. Before  this  Bench  elaborate  submissions  have  been

made by several eminent counsel. The submissions made

before us have been elaborately noticed by Justice

A.K. Sikri which need no repetition in this order.

The Constitution Bench having answered the reference

vide its judgment dated 04.07.2018, we are required

to decide these appeals as per the opinion of the

Constitution Bench. Article 145 clause (3) of the

Constitution of India provides as follows:

“Article 145(3) The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five:  

Provided that, where 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

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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  Singh,  learned  Additional  Solicitor

General(as he then was) submitted that the majority

judgment  of  the  Constitution  Bench  authored  by

Justice  Dipak  Misra,  C.J.  (as  he  then  was)  has

neither considered the submission that Entry 41 of

List II of the VIIth Schedule of the Constitution is

not available to Legislative Assembly of Delhi nor

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answered  the  said  question.  It  is  submitted  that

although  before  the  Constitution  Bench  it  was

emphatically  submitted  that  as  per  Article  239AA

sub-clause (3)(a) the Legislative Assembly shall have

power to make laws 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”. It is submitted before us that

emphasis before the Constitution Bench was that all

matters enumerated in State List and Concurrent List

shall  not  be  ipso  facto  available  to  Legislative

Assembly of Delhi and Legislative power is given only

of  those  matters  which  matters  are  applicable  to

Union Territory of Delhi. It is submitted that the

Constitution Bench has specifically noted the above

argument but has neither considered nor decided the

issue,  hence,  the  issue  has  to  be  considered  and

decided by this Bench.  

10.Entry 41 of List II which is the subject matter of

consideration is as follows:

“41.State public services; State Public     Service Commission.”    

11.We  may  first  notice  that  the  Constitution  Bench

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speaking through Justice Dipak Misra, C.J. (as he

then was) as well as  two other opinions have noted

that the controversy in individual appeals need not

to be dwelled upon by the Constitution Bench as the

Constitution  Bench  is  to  answer  only  the

constitutional  issues.  In  the  opinion  of  Justice

Dipak  Misra,  C.J.  (as  he  then  was)  following  was

stated in paragraph 13:

“13. Having prefaced thus, we shall now proceed to state the controversy in brief since in this batch of appeals which has been referred to the Constitution Bench, we are required to advert to the issue that essentially pertains to the powers conferred on the Legislative Assembly of the National Capital Territory of Delhi and the executive  power  exercised  by  the  elected Government of NCT of Delhi. The facts involved and the controversy raised in each individual appeal need not be dwelled upon, for we only intend to answer the constitutional issue.”

12.In  paragraph  486  of  the  judgment  (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

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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 when it employs the phrase “insofar as any such matter is applicable to Union Territories…” and also  by  specifically  excluding  from  the legislative  power  of  the  Assembly  certain entries as delineated in Article 239-AA(3)(a). This  restriction,  as  per  the  respondents, limits the power of the Legislative Assembly to legislate  and  this  restriction  has  to  be understood  in  the  context  of  conferment  of special status.”

14.The Constitution Bench speaking through Justice Dipak

Misra, C.J. (as he then was) has in its judgment

clearly accepted the position that NCT of Delhi is

not a State and it remains a Union Territory. In this

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reference,  in  paragraph  Nos.  196  and  201  of  the

judgment following has been laid down:

“196. Thus, NDMC makes it clear as crystal that all Union Territories under our constitutional scheme are not on the same pedestal and as far as NCT of Delhi is concerned, it is not a State within the meaning of Article 246 or Part VI of the Constitution. Though NCT of Delhi partakes a  unique  position  after  the  Sixty-ninth Amendment, yet in sum and substance, it remains a Union Territory which is governed by Article 246(4)  of  the  Constitution  and  to  which Parliament, in the exercise of its constituent power,  has  given  the  appellation  of  the “National Capital Territory of Delhi”.

201. In the light of the aforesaid analysis and the ruling of the nine-Judge Bench in NDMC, it is  clear  as  noonday  that  by  no  stretch  of imagination, NCT of Delhi can be accorded the status  of  a  State  under  our  present constitutional  scheme  and  the  status  of  the 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.”

15.Discussion being confined only to Legislative power

conferred on the Delhi Legislative Assembly it is

useful  to  notice  the  opinion  expressed  by  the

Constitution Bench in the above regard. In paragraph

Nos. 217 and 219 following has been laid down:

“217. Sub-clause (a) of clause (3) of Article 239-AA  establishes  the  power  of  the  Delhi Legislative Assembly to enact laws for NCT of Delhi with respect to matters enumerated in the

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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.

219. Thus, it is evident from clause (3) of Article 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

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had arisen in different appeals were not touched by

the Constitution Bench leaving it open to be decided

by the regular Bench after constitutional questions

are  answered.  Whether  the  “services”  are  within

legislative competence of Delhi Legislative Assembly

is one of the issues which has directly arisen in

C.A.No.2357 of 2017. Thus, there is no opinion of

Constitution Bench as to whether Entry 41 of List II

is available to Legislative Assembly of Delhi or not

except a general statement that Legislative Assembly

of Delhi shall have power to make laws with respect

to any of the matters enumerated in List I and List

II except Entries 1, 2 and 18 of State List.

17.We may also notice the conclusion recorded by the

Constitution  Bench  speaking  through  Justice  Dipak

Misra, C.J. (as he then was) in paragraph No.284. The

conclusion in paragraph No.284.13 is as follows:

“284.13. With the insertion of Article 239-AA by  virtue  of  the  Sixty-ninth  Amendment, Parliament envisaged a representative form of Government for NCT of Delhi. The said provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those  excepted,  and  a  mandate  upon  the Lieutenant  Governor  to  act  on  the  aid  and advice of the Council of Ministers except when

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he decides to refer the matter to the President for final decision.”

18.As noticed above the Constitution Bench in paragraph

No.39 extracted above has noticed the submissions of

the counsel for the respondents that words “insofar

as any such matter is applicable to Union Territories

...” in Article 239AA(3)(a) restrict the Legislative

power of the Legislative Assembly of Delhi to only

those  entries  which  are  only  applicable  to  Union

Territories and not all.  The elaborate discussion on

its  answer  is  not  found  in  the  majority  opinion

expressed by Justice Dipak Misra, C.J. (as he then

was).  The  submission  having  been  made  before  the

Constitution Bench which submission was considered in

other  two  opinions  expressed  by  Dr.  Justice  D.Y.

Chandrachud and myself, it is useful to notice as to

what  has  been  said  in  other  two  opinions  in  the

Constitution Bench.  

19.Dr. Justice D.Y. Chandrachud in his opinion has dealt

with the submission under the separate heading as

indicated  at  Serial  No.K(v)  in  the  Index  in  the

beginning of the judgment which is to the following

effect:

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“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 of the above words of Article 239-AA(3) (a).  As  we  see  below,  that  is  not  how Parliament has construed them as well.

462. Section  7(5)  of  the  GNCTD  Act  provides that salaries of the Speaker and Deputy Speaker of the Legislative Assembly may be fixed by the Legislative  Assembly  by  law.  Section  19 provides that the Members of the Legislative Assembly shall receive salaries and allowances as determined by the Legislative Assembly by law. Section 43(3) similarly provides that the salaries and allowances of Ministers shall be

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determined  by  the  Legislative  Assembly. However, Section 24 provides that a Bill for the  purpose  has  to  be  reserved  for  the consideration  of  the  President.  Parliament would  not  have  enacted  the  above  provisions unless  legislative  competence  resided  in  the States  on  the  above  subject.  The  subjects pertaining to the salaries and allowances of Members  of  the  Legislature  of  the  State (including the Speaker and Deputy Speaker) and of the Ministers for the State are governed by Entry 38 and Entry 40 of the State List. The GNCTD Act recognises the legislative competence of  the  Legislative  Assembly  of  NCT  to  enact legislation on these subjects. The use of the expression “State” in these entries does not divest  the  jurisdiction  of  the  Legislative Assembly.  Nor  are  the  words  of  Article 239-AA(3)(a)  exclusionary  or  disabling  in nature.

463. The purpose of the above narration is to indicate  that  the  expression  “State”  is  by itself not conclusive of whether a particular provision of the Constitution would apply to Union Territories. Similarly, it can also be stated that the definition of the expression State in Section 3(58) of the General Clauses Act (which includes a Union Territory) will not necessarily govern all references to “State” in the Constitution. If there is something which is  repugnant  in  the  subject  or  context,  the inclusive definition in Section 3(58) will not apply.  This  is  made  clear  in  the  precedent emanating from this Court. In certain contexts, it has been held that the expression “State” will  not  include  Union  Territories  while  in other contexts the definition in Section 3(58) has  been  applied.  Hence,  the  expression “insofar as any such matter is applicable to Union Territories” is not one of exclusion nor can it be considered to be so irrespective of subject or context.”

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21.Dr. Justice D.Y. Chandrachud while 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……………………………….”

22.Dr.  Justice  D.Y.  Chandrachud,  thus,  held  that

expression “State” is by itself not conclusive of

whether a particular provision of the Constitution

would apply to Union Territories. His Lordship opined

that the expression “insofar as any such matter is

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applicable  to  Union  Territories”  is  not  one  of

exclusion  nor  can  it  be  considered  to  be  so

irrespective of subject or context.  

23.I  had  also  dealt  with  the  above  submission  in

paragraph Nos. 500, 551 and 552 in following words:

“500. It is submitted that even when Article 239-AA(3)(a)  stipulates  that  Legislative Assembly  of  Delhi  shall  have  the  power  to legislate  in  respect  of  subject-matters provided in List II and List III of the VIIth Schedule  of  the  Constitution  of  India,  it specifically  restricts  the  legislative  powers of the Legislative Assembly of Delhi to those subject-matters which are “applicable to Union Territories”.  The  Constitution  envisages  that List II and List III of the VIIth Schedule of the  Constitution  of  India  contain  certain subject-matters  which  are  not  applicable  to Union  Territories.  The  intention  of  the Constitution-makers  is  that  even  when  the subject-matters contained in List II and List III of the VIIth Schedule become available to the Legislative Assembly of NCT of Delhi, the subject-matters in the said Lists which are not applicable  to  Union  Territories  would  not become available to the Legislative Assembly of NCT  of  Delhi  and  would  be  beyond  its legislative powers.

551. The provision is very clear which empowers the  Legislative  Assembly  to  make  laws  with respect to any of the matters enumerated in the State List or in the Concurrent List except the excluded  entries.  One  of  the  issues  is  that power  to  make  laws  in  State  List  or  in Concurrent List is hedged by phrase “insofar as any  such  matter  is  applicable  to  Union Territories”.

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552. A look at the entries in List II and List III indicates that there is no mention of Union Territory.  A  perusal  of  Lists  II  and  III indicates  that  although  in  various  entries there is specific mention of word “State” but there  is  no  express  reference  of  “Union Territory” in any of the entries. For example, in List II Entries 12, 26, 37, 38, 39, 40, 41, 42 and 43, there is specific mention of word “State”. Similarly, in List III Entries 3, 4 and 43 there is mention of word “State”. The above  phrase  “insofar  as  any  such  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,

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that  all  entries  of  List  II  and  List  III  are

available  to  Legislative  Assembly  for  exercising

Legislative power except when an entry is excluded by

implication or by any express provision.  

25.The  majority  opinion  delivered  by  Justice  Dipak

Misra, C.J. (as he then was) having not dealt with

the  expression  “insofar  as  any  such  matter  is

applicable to Union Territories”, it is, thus, clear

that no opinion has been expressed in the majority

opinion of the Constitution Bench, hence the said

issue  is  required  to  be  elaborately  answered  for

deciding C.A.No.2357 of 2017.

26.As noted above, Article 239AA has been inserted by

Constitution  69th Amendment,  1991  with  effect  from

1st February, 1992. Legislative powers to Legislative

Assembly  for  Union  Territory  was  an  accepted

principle even before 69th Constitution (Amendment)

Act. The Government of Union Territories Act, 1963

was enacted by Parliament in reference to Article

239A  brought  by  Constitution  14th Amendment,  1962.

Article 239A provided as follows:

“239A.  Creation  of  local  Legislatures  or Council of Ministers or both for certain Union territories.-

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(1) Parliament may by law create for the Union territory of Pondicherry-

(a) a body, whether elected or partly nominated and  partly  elected,  to  function  as  a Legislature for the Union territory, or

(b) a Council of Ministers,

or  both  with  such Constitution,  powers  and functions, in each case, as may be specified in the law.

(2) Any such law as is referred to in clause (1) shall not be deemed to be an amendment of this Constitution for  the  purposes  of  article 368  notwithstanding  that  it  contains  any provision  which  amends  or  has  the  effect  of amending this Constitution.”

27.Article  239A  empowered  the  Parliament  by  law  to

create a body to function as a Legislature for the

Union  Territory.  Such  Union  Territory  constituted

under Act, 1963 had Legislative power as provided by

the Parliament itself under Section 18 of the Act,

1963. Section 18 of the Act, 1963 is as follows:

“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 in so far as any such matter is applicable in relation to Union territories.

(2) Nothing  in  sub-section  (1)  shall derogate  from the  powers  conferred  on

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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

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for  enacting  69th Constitution  Amendment.   In  the

Statement  of  Objects  and  Reasons  of  the  69th

Constitution  Amendment, the  Report of  Balakrishnan

Committee  has  been  specifically  referred  to  and

relied on.  It is useful to notice the Statement of

Objects and Reasons of Constitution 69th Amendment,

which are as follows:-

“Statement of Objects and Reasons The  question  of  reorganisation  of  the

administrative set-up in the Union Territory of Delhi has been under the consideration of the Government  for  some  time.  The  Government  of India appointed on 24-12-1987 a Committee to go into  the  various  issues  connected  with  the administration  of  Delhi  and  to  recommend measures inter alia for the streamlining of the administrative set-up. The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals,  associations,  political  parties and other experts and taking into account the arrangements in the National Capitals of other countries with a federal set-up and also the debates in the Constituent Assembly as also the reports by earlier Committees and Commissions. After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union Territory and 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. The Committee also recommended that with a view to  ensure  stability  and  permanence  the arrangements  should  be  incorporated  in  the Constitution  to  give  the  National  Capital  a special status among the Union Territories.

2. The Bill seeks to give effect to the above

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proposals.”

31.The  Constitution  Bench  judgment  of  this  Court  in

Govt. of NCT of Delhi vs. Union of India (supra) speaking through Justice Dipak Misra, C.J. (as he

then was) has also referred to and relied on the

Balakrishnan’s Committee Report.  In Paragraph No. 16

of  the  judgment,  several  paragraphs  of  the

Balakrishnan Committee Report have been extracted by

the Constitution Bench.  The Constitution Bench has

further  held  that  Balakrishnan  Committee’s  Report

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.   In  Paragraph  No.  206  of  the

judgment, following has been observed:-

“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

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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 matters in the State List and the Concurrent List of the Constitution in so far as such matters are applicable in relation to Union  territories.  This  last  limitation  is necessary because of the difference between the constitutional status of a Union territory and that  of  a  State.  The  exercise  of  such legislative  powers  should,  of  course,  be subject to the provisions of the Constitution and the relevant laws of Parliament.”

33.Balakrishnan Committee Report while elaborating the

expression  “insofar  as  any  such  matters  are

applicable  in  relation  to  Union  Territories”  has

noticed  that  apart  from  entries  specifically

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excluded, there are other entries, which ipso facto

fall outside the purview of the Delhi Legislative

Assembly.  Following has been stated in Paragraph No.

6.7.12:-

“6.7.12  .....Another  connected  Entry  in  the State  List  is  Entry  No.35  which  is  “Works, lands  and  buildings  vested  in  or  in  the possession of the “State”. Considering that the powers of the Assembly proposed for Delhi will extend to matters in the State List and the Concurrent List of the Constitution “in so far as such matters are applicable in relation to Union  territories”  Entry  35  will  ipso  facto fall  outside  the  purview  of  the  Assembly proposed  for  Delhi  because  that  Entry  is applicable  to  States  and  not  to  Union territories......”

34.Entry  41  of  List  II  of  VIIth  Schedule  of  the

Constitution  was  specifically  considered  in  the

Balakrishnan  Committee Report  and the  Balakrishnan

Committee Report opined that the said entry is not

applicable  to  the  Union  Territory.   On  the  above

subject,  following  was  stated  in  the  Report  in

Paragraph Nos. 8.1.2 and 8.1.3:-

“8.1.2 Entry  41  of  the  State  List  mentions “State public services: State ‘Public Services Commission”.  Obviously,  this  Entry  is  not applicable  to  Union  territories  because  it mentions  only  “State”  and  not  “Union territories”. This view is reinforced by the fact  that  this  Constitution  divides  public services in India into two categories, namely,

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services in connection with the affairs of the Union  and  services  in  connection  with  the affairs  of  the  State  as  is  clear  from  the various  provisions  in  Part  XIV  of  the Constitution.  There  is  no  third  category  of services  covering  the  services  of  the  Union territories.  The  obvious  reason  is  that  the administration of the Union territory is the constitutional  responsibility  of  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

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Constitution, 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.  This constitutional position is unexceptionable and should not be disturbed. There should, however, be  adequate  delegation  of  powers  to  the  Lt. Governor in respect of specified categories of services or posts. In performing his functions under such delegated powers the Lt. Governor will have to act in his discretion but there should  be  a  convention  of  consultation, whenever possible, with the Chief Minister.”

36.The  Balakrishnan  Committee  Report  which  led  into

passing  of  the  69th Constitution  (Amendment)  Act

categorically has accepted the position that Entry 41

of  List  II  shall  not  be  within  the  Legislative

competence of Delhi Legislature, which conclusion was

plausible, since the Legislative power of the Delhi

Legislative  Assembly  was  circumscribed  by  the

expression “insofar as any such matter is applicable

in relation to Union Territories” as occurring in

Article 239AA(3). In Balakrishnan Committee Report,

the  Committee  noticed  the  existence  of  services,

which were in existence in the Union Territory of

Delhi.  There were common services for several Union

Territories constituted by Union. On 13.07.1959, the

President has issued an order in exercise of power

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conferred  by  Proviso  to  Article  309  of  the

Constitution and framed Rules namely, Conditions of

Services of Union Territories Employees Rules, 1959.

37.The  Delhi  Administration  Subordinate

Ministerial/Executive Service Rules., 1967 were also

framed  by  the  President  in  exercise  of  power

conferred  by  Article  309  of  the  Constitution  of

India.  Rule 2(d) provided that “commission” means

the Union Public Services Commission.  There has been

subsequent Rules framed for services under the Union

Territories.  There being also Rules for Services

combined  to  different  Union  Territories.   The

Parliament  was  well  aware  at  the  time  when

Constitution  69th (Amendment)  Act  was  enacted  that

the  term  ”services”  in  the  Union  Territories  are

Union Services and there are no State services and

the Commission for Services means the Union Public

Services Commission.  A Constitution Bench of this

Court had occasion to consider various aspects of the

services in Union Territory of Delhi in Bir Singh Vs. Delhi Jal Board and Others, (2018) 10 SCC 312.  The above Constitution Bench judgment was delivered on

30.08.2018,  i.e.  subsequent  to  Constitution  Bench

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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

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(3)  The posts in Grade I shall be Central Civil  posts, Class  II Group  “B” (Gazetted) and those in Grades II, III and IV shall be Central Civil posts Group “C” (Non-Gazetted).

(4) Members of the service shall, in the normal course be eligible for appointment to various Grades of the service to which they belong and not to the other service.”

(emphasis supplied)

65. Subordinate  services  in  the  National Capital  Territory  of  Delhi  are,  therefore, clearly Central Civil Services. The affidavit of  the  Union  of  India  also  points  out  this feature by stating that,

“The  posts  in  CCS  Group  C  are  in  the subordinate services. The equivalent in the Union  Territory  of  Delhi  is  the  Delhi Administrative  Subordinate  Services  (DASS) and  the  recruiting  agency  in  the  place  of Staff  Selection  Commission  is  the  Delhi Subordinate Service Selection Board (DSSSB). Members  of  the  Delhi  Administrative Subordinate Services are the feeder cadre for Central Civil Services Group B (DANICS). It is for these reasons that the policy (of pan India eligibility) is consistently adopted.”

66. A combined reading of these provisions of the  DASS  Rules,  1967  and  CCS  Rules,  1965, therefore,  more  than  adequately  explains  the nature of Subordinate Services in the NCT of Delhi.  These  clearly  are  General  Central Services and perhaps, it is owing to this state of  affairs  that  the  Union  of  India  in  its affidavit has stated that,

“Members  of  the  Delhi  Administrative Subordinate Services are the feeder cadre for Central Civil Services Group B (DANICS). It

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is for these reasons that the policy (of pan India eligibility) is consistently adopted.”

38.The Constitution Bench in  Bir Singh (supra), thus, has  opined  that  services  in  the  National  Capital

Territory are clearly Central Civil Services.  What

has  been  held  by  the  Constitution  Bench  also

reinforces that there are no State Public Services in

the NCT, Delhi.  Learned counsel appearing for the

appellant has placed much reliance on the Delhi Fire

Services Act, 2007 to buttress his submission that by

the aforesaid Act, State Services namely Delhi Fire

Services has been created, which clearly means that

Entry  41  of  List  II  is  applicable  to  Delhi

Legislative Assembly. The Delhi Fire Services Act,

2007 has been passed to provide for the maintenance

of  a  fire  service  and  to  make  more  effective

provisions for the fire prevention and fire safety

measures in certain buildings 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

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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. Article 246 which provides for

subject-matter of laws made by Parliament and by the

Legislatures of States provides as follows:

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different expression. There is a difference between

the Legislative powers of the State and the Union

Territories, which is apparent by use of different

expressions  in  the  Constitution.   While  inserting

Article 239AA in the Constitution, the Parliament was

well  aware  about  the  functioning  of  the  Union

Territories and extent and controls of powers to be

given  to  the  Union  Territories  by  constitutional

amendment.  

42.I having held that Entry 41 of List II of the Seventh

Schedule of the Constitution is not available to the

Legislative Assembly of GNCTD, there is no occasion

to  exercise  any  Executive  power  with  regard  to

“Services” by the GNCTD, since the Executive power of

the GNCTD as per Article 239AA(4) extend in relation

to matters with respect to which Legislative Assembly

has power to make laws.  With regard to “Services”

GNCTD can exercise only those Executive powers, which

can be exercised by it under any law framed by the

Parliament or it may exercise those Executive powers,

which have been delegated to it.  Issue No. 1 is

answered accordingly.  

43.In  view  of  my  above  answer  to  Issue  No.1,  Civil

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Appeal No. 2357 of 2017 – Govt. Of NCT of Delhi Vs.

Union  of  India  stands  disposed  of  upholding  the

judgment of the Delhi High Court dismissing the Writ

Petition (C) No. 5888 of 2015.  The other appeals are

disposed  of  as  per  order  proposed by  my  esteemed Brother Justice A.K. Sikri.  Contempt Petition (C)

No. 175 of 2016 is closed.  The parties shall bear

their own costs.  

.....................J. ( ASHOK BHUSHAN)

NEW DELHI, FEBRUARY 14, 2019.